Incompetent officers conducting search and seizure under the Narcotic Drugs and Psychotropic Substances Act can vitiate the prosecution and lead to the setting aside of the conviction and sentence.

These two appeals are directed against the judgment dated 29-1-1996 of the trial Court in S.C. 88 of 1993 and are being disposed of by this common judgment. The appellants were tried for having committed the offence under Section 8(b) read with Section 20(a)(i) of Narcotic Drugs and Psychotropic Substances Act, hereinafter called the 'Act' and were convicted to undergo two years rigorous imprisonment with a fine of Rs. 20,000/- and in default of payment of fine, to undergo one year simple imprisonment.

2. According to the prosecution, on a raid conducted on 1-7-1992 at 11.30 a.m., at the northern stream flowing on the northern side of the North Vattakeni of Western ghats, by the Superintendent of Police along with other police personnel P.Ws. 3 and 4, A1 to A3 and one other person were found cultivating ganja plants, that A1 was arrested on the spot, while the remaining accused absconded, that ganja plants seized were about 1,900 kgs. valued at a sum of Rupees 38,00,000/- that the said ganja plants were seized that after taking sample as per MO 1, remaining ganja plants were destroyed, that based on confession made by A1, A2 and A3 were later on arrested on 8-2-1993 and 4-3-1993 respectively, that as per the instructions of P.W. 4, P.W. 3 Sub-Inspector of Police, Teni conducted the search and seizure and that thereafter P.W. 4, after completing the investigation laid the charge-sheet before the trial Court. On the basis of the evidence placed before the trial Court, the trial Court came to the conclusion that the accused 1 to 3 were guilty of the offences charged against them and therefore were liable to be punished under Section 8(b) read with Section 20(a)(i) of the Act. The trial Court thus convicted and sentenced the appellants. Aggrieved against the same, A2 and A3 have come forward with these appeals in CA Nos. 183 and 184 respectively.

3. At the out set, the learned counsel for the appellant raised a most formidable contention, namely that P.Ws. 3 and 4 were incompetent under the Act either for carrying out the search and seizure or for holding the investigation. The learned counsel submitted that at the relevant point of time, namely in the year 1983, by virtue of G.C.Ms. No. 1437, dated 24-9-1987, Officers at the level of Deputy Superintendent of Police and above alone were authorised to exercise the powers of search and seizure as well investigation under the provisions of the Act, that the said position continued till a new G.O. came to be issued in C.O.Ms. No. 161, dated 12-8-1992, that under the present G.O., any Police Officer not below the rank of Head Constable has been empowered to exercise such powers. The learned counsel therefore contended that in the case on hand, while admittedly P.Ws. 3 and 4 being. Sub-Inspector of Police and Inspector of Police, Teni were totally incompetent persons to conduct the search and seizure and also for holding further investigation and therefore, the prosecution based on such exercise carried out by incompetent persons was vitiated. The learned counsel also relied upon "Rajendran alias Kullu Rajendran v. State by Asst. Commissioner of Police, Pulianthope Range (Law and Order), Madras" 1993 Mad LW (Cri) 412 wherein his Lordship Mr. Justice Ali Mohammad was pleased to call for the records pertaining to C.C. No. 136 of 1992 which was pending on the file of the Sessions Judge and quashed the said proceedings on the very same grounds.

4. The learned Public Prosecutor fairly conceded that the said legal position being not in controversy, there is absolutely no scope for sustaining the conviction and sentence imposed in the impugned proceedings.

5. Having regard to the above stated settled legal position, the criminal appeal is allowed and the conviction and sentence imposed by the impugned judgment in SC 88 of 1993, dated 29-1-1996 is set aside. The bail bonds of the appellants if any, shall stand cancelled. The fine amount if any paid by the appellants shall be refunde