The central legal point established in the judgment is the requirement for police officers to be legally empowered to conduct searches and seizures under the Narcotic Drugs and Psychotropic Substances Act 1985, and the consequences of non-compliance with these provisions.

S.S.Grewal, J.

1. This appeal is directed against the order of Additional Sessions Judge, Barnala, dated 13th of May, 1988 whereby the present respondent who was tried for commission of offence under Section 15 of the Narotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as the Act) was acquitted.

2. In brief facts of the prosecution case relevant for the disposal of this appeal are that on 23.3.1986, ASI Tarsem Chand along with other police officials including Head Constable Pavittar Singh was present in the area of village Sandhu Kalan near the canal minor. The respondent came there. On suspicion he was stopped and after informing him whether he wants to be produced before any gazetted officer, and on his refusal, he was searched by the said ASI. From the bag carried by the respondent 15% Kgs. of poppy husk was recovered. 250 grams of poppy husk was drawn as sample. Both the sample and the remaining poppy husk were separately sealed and taken into possession through seizure memo. After completion of the investigation and receipt of the report of the Chemical Examiner, the respondent was challaned, tried and acquitted, as stated earlier.

3. The learned counsel for the parties were heard.

4. On behalf of the State, it was vehemently argued by the learned Deputy Advocate - General, that the testimony, of ASI Tarsem Chand (PW1) and Head Constable Pavittar Singh (PW2) coupled with the recovery of 15. 1/4 Kgs. of poppy husk is sufficient to prove the case of the prosecution against the respondent. The argument is devoid of any merit.

5. Notification No. S.O. 33/C A.61/85/Ss. 42 and 67/87, dated 3rd September, 1987 was issued by the Punjab State in pursuance to the provisions of Sub Section (1) of Section 42 and Section 67 of the Act, empowering the officers of and above the rank of Assistant Sub Inspector of Police to exercise we powers and perform the duties specified in Sections 42 and 67 within the areas of their respective jurisdiction. The State counsel has not been able to show that any such notification was issued prior to the 3rd of September, 1987, whereas the alleged recovery of 15. 1/4 Kgs. of poppy husk was effected from the possession of the respondent on 23.3.1986. At that point of time police officers of the rank of Assistant Sub Inspector or Sub-Inspector had not been legally empowered to exercise the powers and perform the duties concerning seizure of drugs or substance and of material used in the manufacture thereof under Section 42 or 67 of the Act. This is a serious lacuna which goes to the root of the prosecution case. Under Section 41 (2) of the Act only a police officer empowered in this behalf by the State Government by general or special order or an officer subordinate to him but superior in rank of Sepoy or a Constable duly authorised by such an officer may arrest or search a person on having reason to believe that person has committed an offence under Chapter IV of the Act. Section 42 of the Act empowers any such officers who has been so empowered in this behalf by a general or special order of the State Government or duly authorised by such officer to enter, search, seize and arrest without warrant or authorisation any person from any building, conveyance or place. Similarly Section 43 of the Act empowers seizure and arrest in public places. It is thus quite patent that in the instant case ASI Tarsem Chand was not legally empowered to arrest or search the respondent. Not the poppy husk recovered in this case has been seized or secured in the manner provided for. From the facts and circumstances of the present case referred to above, it is quite apparent that material prejudice has been caused to the respondent on account of non-compliance of the aforesaid provisions of the Act which are meant for protecting the liberty of an individual citizen against the high- handedness of an over zealous police officer. The learned trial Court thus has rightly acquitted the respondent of