JUDGMENT :

1. This Criminal Appeal under Section 374 Cr.P.C. has been preferred praying for the following reliefs:-

“It is therefore respectfully prayed that

1. Appeal of accused appellant may kindly be allowed.

2. Judgment and order dated 6-9-89 passed by the Additional Session Judge Barmer may kindly be quashed and set aside.

3. Accused appellant may kindly be acquitted of the charge for the offence under section 20 (ii) of the NDPS Act, 1985.

4. Any other appropriate order in favour of the accused appellant which this Hon’ble court thinks fit may also be passed.”

2. This Criminal Appeal has been preferred against the judgment, dated 06.09.1989, passed by the learned Addl. Sessions Judge, Barmer in Criminal Case No. 24/88 whereby the appellant was convicted for the offence under Section 20 (ii) of the NDPS Act, 1985 (“the Act of 1985”) and was sentenced to 10 years R.I. along with a fine of Rs. 1 lakh, in default of payment of which he was to further undergo 1 year R.I.

3. Brief facts of the case as placed before this Court by the learned counsel for the appellant are that on 24.09.1987 Bhera Ram, Head Constable at Police Station, Gudamalani along with two other officers, Shobh Isngh and Dedaram arranged a blockade at Ghandhav Pul, Gudamalani, Barmer whereby at about 10:15 a.m. upon conducting a search of a bus, bearing vehicle no. RRG 8701, which was travelling from Barmer to Sanchore reached Ghandhav Pul, a passenger, Har Lal, was found to be carrying his person a green bag in which 6 cakes of charas were found wrapped in 4 plastic bags, and that the search was conducted in the presence of motbirs. And that, the accused-appellant Har lal did not have a permit for the same. And that, upon being weighed it was found to be of 6 kgs. from which a two samples of 30 gms. each were collected and sent for F.S.L. while the rest of the contraband was sealed. And that, the accused-appellant was apprehended and taken into custody. Upon the investigation being complete, charge sheet was filed against him for the offences under Sections 21, 22 and 29 of the Act of 1985.

4. Learned counsel for the appellant submits that the compliance under Section 42 Act of 1985 was not made, and that the investigating officer in the present case was not authorized to conduct the search and seizure, against the accused. And that, no officer below the rank of Inspector / Sub-Inspector posted at the rank of S.H.O. were authorized for the same. Moreover, the same is laid down in the statute under Section 50, which requires that Sections 42 and 50 of the Act of 1985 are reproduced hereinunder for the sake of brevity:-

Section 42 - Power of entry, search, seizure and arrest without warrant or authorisation

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,