D. M. PATNAIK, J.

( 1 ) ON information that the appellant was allegedly trafficking in brown sugar, the police raiding party nabbed him in his residence situate in Dhanakuti Sahi in Puri town on 9-4-1990 around 10 a. m. and recovered from his pant pocket ten grams of heroin in a paper packet. On trial he was convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short, the 'act') and sentenced him to undergo RI for ten years with a fine of rupees one lakh which he assails in this appeal. The appellant denied the indictment.

( 2 ) MR. Deepak Mishra, the learned counsel for the appellant did not challenge the recovery of that particular quantity of brown sugar and that too rightly, since though the two independent witnesses did not support the prosecution case, this Court after going through the evidence of the rest of the witnesses who were police personnel is satisfied that there is no infirmity in their evidence to disbelieve the fact of recovery. The chemical report containing the substance to be brown sugar also goes unchallenged. His main argument was that the entire trial was vitiated for non-compliance of the statutory provisions under Sections 41, 42, 43, 50 and 53 of the Act and, therefore, according to him, the conviction should be set aside.

( 3 ) MORE heinous is the crime, stricter is the provisions of law prescribed for the same. So far the provisions of the Act in question. Realising the graveness of the penal provisions, Legislature provided a number of safeguards before and after such search, seizure and arrest so that, the liberty of a man, a Constitutional guarantee would not be thwarted by an unscrupulous investigating agency. The effect of such violation of the statutory safeguards being the main thrust of argument, the fate of this case, as it stood on the date of such argument, depended mainly on the ratio decided in the case of Banka v. State of Orissa, a Full Bench decision of this Court reported in (1992)2 OLR 395 : (1993 Cri LJ 442 ). But the views expressed by the apex Court as is found in a recent case before it reported in (1994)7 OCR 283, State of Punjab v. Balbir Singh, run counter to the views expressed by the majority view in the case of Banka (supra ). To appreciate the case of the appellant, it is necessary to have a comparative analysis of the two views and find out if the appellant can succeed on the basis of the law laid down by the apex Court.

( 4 ) SECTIONS 41 and 42 and the other Sections up to Section 68 of the Act are under Chapter V which chapter deals with procedure for search, seizure, arrest etc. Presently, we are concerned with Sections 41 and 42 of the Act. It may be kept in mind that the house was searched not under any warrant from any Magistrate.

( 5 ) SECTION 41, Sub-Section (2) prescribes that any such officer empowered in that behalf either by the Central Government or by the State Government, as the case may be, by general or special order (emphasis supplied) if he has reason to believe that an offence punishable under Chapter IV of the Act has been committed, may authorise any officer subordinate to him, to search any place and arrest such person whether day or night or himself arrest a person or search a building, conveyance or a place. Section 42 (1) (a) and (d) prescribes such officer as specially empowered may, between sunrise and sunset, enter into and search any building or place, seize any materials or articles and detain or arrest any such person whom he has reason to believe to have committed an offence punishable under Chapter IV of the Act relating to such drug or substance. Therefore, the question is whether in the absence of any such expressed statutory authority in favour of the officer either himself conducting the search, seizure etc. or directing his subordinate to conduct the same, the said search, seizure etc. and the proceeding to follow should be vitiated or this would amount to a mere irregularity not affecting the