The violation of statutory provisions regarding search and arrest, and the non-production of crucial evidence, led to the acquittal of the appellant.

1. - Heard. With the consent of both the learned counsel, the main appeal is being finally disposed of at this stage.

2. The appellant was prosecuted u/s 8/18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short, "the Act"); and learned Sessions Judge, Jhalawar, vide his judgment & order dated 24th June, 89, found him guilty of the offence and sentenced him to 10 years' rigorous imprisonment and a fine of Rs. 1,00,000/-, and in default of payment of fine, to further undergo 2 years' rigorous imprisonment.

3. On 12th October, 87, at about 10 A.M., near Palya Khedi, Arjunsingh, ASI of PS - Bhawani Pandi, took a search of the accused-appellant, who was found to be in possession of 625 gms. of opium, which was being carried by him in a white plastic bag which was kept in a blue-colour rexine. A case was registered against him and a sample of 30 gms. of opium was taken from the seized article. The said sample was then sealed and later on sent for chemical-examination. In the report, it was found to be illicit opium. After completing usual investigation, the appellant was prosecuted. The learned Sessions Judge found him guilty of the charge levelled against him and sentenced him as mentioned above.

4. The learned counsel for the appellant argued that in view of S. 42 of the Act, the power to arrest a person and search him has been given to Sub-Inspectors or persons above the rank of Sub-Inspector. An ASI, according to him, is not empowered to take search and arrest a person. In the present case, Arjun Singh, who was ASI in PS - Bhawani Mandi, had seized the opium and arrested the accused-appellant. So, there has been clear violation of S. 42, and the ASI had no power to arrest him.

5. It was also argued that the sample of opium was sent to FSL, for examination. According to the prosecution, the report of the FSL was received by them. But, this report of the FSL has been exhibited and taken on record by the prosecution. So, according to the learned counsel, there is no proof about the sample whether it was opium or some other substance. The only report with regard to the sample was the report of the FSL and that report has not been produced and exhibited. In support of his argument, the learned counsel for the appellant relied on the cases of Biram v. State of Raj., 1988 RCC 556 and Sattar Mohammad v. State of Rajasthan, 1989 Cr.L.R. (Raj.) 45

6. Considered the arguments of both the learned counsel and perused the case - law cited by the learned counsel for the appellant. In the case of Biram (supra), it has been held by this Court that Ss. 42 & 50 are mandatory provisions. In that case, it was held that the Officer taking the search, did not ask the accused to be taken before the nearby Magistrate, and also that the provisions of S. 42 were violated. This case of Biram (supra) is squarely applicable to the present case. In the present case, the accused was arrested not by the SHO or Sub-Inspector, put, by an ASI, who was not empowered to take a search and arrest the accused. So, S. 42 has been violated. There is nothing on the record to show that in the present case, the accused was asked whether he desired to be produced before the nearby Magistrate or a Gazetted Officer. So, the provisions of both the sections 42 & 50, were not complied with.

7. In the case of Sattar Mohammad (supra) it was observed by this Court that report of FSL is a very important piece of evidence. That report was not submitted during trial, nor was it exhibited, but, during final arguments, the said report was marked as Ex. 1; and the trial court relied on that report. It was held in that case that without giving an opportunity to rebut the report of the FSL, prejudice was caused to the accused, and the judgment was bad.

8. In the present case, the position is even worse. Here, the report of the FSL has not been submitted and exhibited. So, it cannot be said whether the sample which taken from the seized article, was opium or not. When t