JUDGMENT: Nithyanandam, the appellant herein, challenging the conviction for the offence under Sec.8(c) read with 21 of the N.D.P.S. Act and sentence to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000, has filed this appeal.

2. The short facts leading to the conviction are as follows:

"(a) P.W.3 Kalidhasan, the Sub Inspector of Police, NIB CID received the information Ex.P-4 on 22.9.1993 at about 11.15 p.m. regarding the offenders involving in the possession of heroin at Periyamedu. He recorded the same in Ex.P-5 and sent it to P.W.5, the Inspector of Police, NIB CID. Then, he proceeded to the spot for surveillance at the junction of Naval Hospital Road and E.V.R. Periyar Road at Periyamedu. He secured the help of one Jaykumar P.W.4 to be as a witness for search.

(b) P.W.3 and Head Constable P.W. 1 along with P.W.4 were watching the movements of the offenders. At that time, i.e., on 23.9.1993 early morning, they found two persons including the appellant walking along the road. They accosted them and disclosed their identity to them. After informing their right of exercising their option with regard to the search, those persons allowed P.W.3 to search them. Accordingly, they were searched. From A-1 Kabila De Silva, 6 paper packets weighing about 72 grams were seized. From the appellant Nithyanandam, 4 packets weighing about 50 grams were seized. After packing and sealing, P.W.3 arrested both of them and took them to the Police Station at about 2.30 a.m. and registered a case under Sec.8(c) read with 21 of the N.D.P.S. Act. Then, he sent a report Ex.P-7 under Sec. 57 of the Act to the Inspector of Police P.W.5.

(c) Thereafter, P.W.5 took up further investigation. He sent the contraband drug for the chemical analysis through the Court. P.W..2 the Scientific Assistant gave a report stating that it contained Di acetyl morphine which is a narcotic drug called heroin. P.W.5 after finishing the further investigation, filed charge sheet against both the accused for the above offences.

(d) Since the first accused, viz., Kabila De Silva after his release on bail was absconding, the case in respect of the appellant was split up.

(e) During the trial against the appellant, on the side of the prosecution, P.Ws. 1 to 5 were examined, Exs.P-1 to P-9 were filed and M.Os.1 and 2 were marked.

(f) When the accused was questioned under Sec. 313, Crl.P.C, he denied his complicity in the crime. Ultimately, the trial Court convicted the appellant for the abovesaid offence and sentenced him thereunder."

3. Challenging this judgment, Mr. Sudanthiram, the learned counsel appearing for the appellant would make the following contentions: (I) The search and seizure took place on the midnight 22/23.9.1993. As per G.O.Ms.No.161, Prohibition and Excise Department, dated 12.8.1992, the police officers not below the rank of Head Constable in the State Police Department were empowered to exercise the powers under Sec.42(1) of the Act. Sec.42(1) of the Act speaks about the power of the officer regarding the search and seizure only during the sunrise and sunset. Therefore, on the date of ‘seizure, i.e., on 23.9.1993, P.W.3 Sub Inspector of Police was not empowered to effect search and seizure during the night time. Though the proviso to Sec.42, Crl.P.C. would empower the officer to make search and seizure at any time between sunset and sunrise, he should record the grounds of his belief. In this case, the grounds of belief are not recorded. Therefore, the search and seizure is illegal.

(II) As per G.O.Ms.No. 163, Prohibition and Excise Department, dated 12 8.1992, only the police officers of and above the rank of Inspector of Police under Sec. 41(2) were empowered to exercise the powers for the search and seizure or to give authorisation under the Act. In this case, P.W.3, who is below the rank of Inspector of Police, without the authorisation of Inspector of Police seized the contraband. Therefore, the seizure is illegal.

4. In reply to the abo

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