MAHENDRA DAYAL, J. - (1.) THIS criminal appeal has been filed against the judgment and order dated 31.10.2013 passed by Additional Session Judge, Court No.2, Bahraich in Special Session Trial No.18/10, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment of twelve years along with a fine of Rs.1,00,000/ - under Section 8/20 N.D.P.S. Act. It has been provided that in case of default in payment of fine, the appellant shall go further imprisonment of two years.
(2.) THE prosecution case in brief is that on 19.12.2009 the informant, who was also arresting officer, received an information at about 9.00 AM that a Nepali woman was about to come from Nepal having about 4 or 5 kgs. contraband charas. On the basis of the said information received by arresting officer, he constituted a police team with three women constables and at about 11.00 AM apprehended the appellant. On being asked, the appellant told that her name was Smt. Pavitra wife of late Gyan Bahadur, resident of Shantipur, Nepal. She was having two bags and a plastic jerrycan. The bags and jerrycan were opened and search. The appellant was found in possession of about 4 kgs contraband charas. She was arrested and brought to the company headquarter where the charas was weighed and it was found that the total weight of charas was 4 kgs. and 48 grams. After taking a sample from the charas recovered from the appellant, the charas was sealed and the specimen was sent for examination. The investigation of the case was handed over to Sub Inspector Jagdish Lal Jaiswal, who conducted the investigation and subsequently submitted charge -sheet against the appellant. During the course of trial, the prosecution examined six witnesses and thereafter the learned trial court on appraisal of evidence found the appellant guilty of offence under Section 8/20 N.D.P.S. Act and convicted her, as aforesaid.
(3.) I have heard learned counsel for the appellant and the learned AGA for the State. The first ground of challenge is that the arresting officer was of the rank of head constable of Sashastra Seema Bal (S.S.B.). The submission is that the occurrence has taken place on 19.09.2009 and till that date, a police officer of the rank of head constable was not competent to take search or make arrest under the N.D.P.S. Act. The notification authorizing the head constable to make arrest and search was issued on 20.04.2010 that is after about six months of the alleged occurrence. The entire prosecution is vitiated on this ground alone and the appellant is liable to be acquitted of the charge. Another ground taken by the appellant is that the case was investigated by a police officer of the rank of head constable, who was not authorized to conduct investigation under the N.D.P.S. Act. Rule 78 of the Rules framed under the N.D.P.S. Act provide that any officer of the Excise or Drugs Control Department not below the rank of Inspector or of the Revenue Department not below the Tehsildar may exercise the power of an officer incharge of a police station in the matters of investigation of offences under the Act. Thus, under the Rules, the officer incharge of a police station or the officer not below the rank of Inspector of Excise or Drugs Control Department or the officer of the Revenue Department not below the rank of Tehsildar could only conduct investigation in the matter of offences under the N.D.P.S. Act. Since the investigation was conducted by Sub Inspector, the entire investigation was vitiated and the appellant is liable to be acquitted and the appeal is liable to be allowed.;