BHAGWATI, J. - (1.) THE challenge in this appeal is to the judgment dated 29th July, 1989 passed by Sessions Judge, Sawai Madhopur whereby the accused respondent Vikram Singh has been acquitted of the offence under Section 15/18 of the N. D. P. S. , Act, 1985.
(2.) THE nub of the prosecution story as unfolded by PW. 1 Gyan Chand is as under:- That on 14th January, 1986 PW. 1 Gyan Chand, Constable and PW. 2, Bhagwan Singh, Constable were train Guard on 19 Down Dehradun Express, boarding from Kota to Swai Madhopur. It is alleged that at Indergarh Railway Station, both these train guards boarded to coach which was adjacent or one coach ahead to the coach of Guard. On checking, they found one person going to toilet again and again. His activity caused suspicion in the mind of the train guards. After 15 minutes, when the train reached Swai Madhopur, and the person did not come out of the toilet, it confirmed their suspicion. THEy tried to get the door of the toilet unlocked but the accused did not come out. Ultimately, from the outside window pane, the accused was asked to unlock the door. He was seen at that time taking out something from the broken plywood part of the toilet. However, that person finally opened the door and he took out 10 packets from that broken plywood part of the toilet where he had concealed them. On inspection, all these 10 packets were found to have contained opium therein. PW. 1 Gyan Chand, Constable called one Darshen Singh and two persons Shri Banshi and Moorari. 10 packets containing opium were weighed and the total weight of all ten packets was found to be 24 kg and 400 gms. Shri Gyan Chand, Constable handed over all the 10 packets containing the opium to PW. 6 Shri Ummed Singh, Head Constable who performed the entire exercise of weighing them and taking out samples etc. Heard the learned Public Prosecutor as also the learned counsel for the accused respondent, perused the impugned judgment of the lower Court and the relevant material available on record. Having considered the submissions made at the Bar and scanned the impugned judgment of the lower Court, it is found that the learned Sessions Judge has acquitted the accused in the offence under Section 15/18 of the Act of 1985 on the ground that PW. 1 Shri Gyan Chand was not authorised to conduct the search of the accused and PW. 6 Umed Singh was not empowered to arrest the accused and seize the opium from his possession. Before coming to the question about investigation by an unauthorised person, I would like to quote the relevant provisions of Section 42 of the Act of 1955 which reads as under:      " S. 42:- Power of entry, search, seizure and arrest without warrant of authorisation- (i) Any such officer (being on officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable of the Revenue, Drugs, Control, Excise, Police or any other department) of a State Government as is empowered in this behalf by general or special order of the State Government. . . . . . . . . . . . . . . . . . . . . . (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The above provision authorises the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government and these officers should be superior in rank to a peon, sepoy or constable. Similarly, in the State Government, officers of the Revenue, Drugs, Control Excise, Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, are the class of officers who are authorised to deal with the cases falling under Section 42 of the Act. Thus, the other persons have to be authorised from time to time under the provisions of Section 42 of the Act and such powers under Section 42 of the Act were given to the police on 16th October, 1986 where the following notification was issued under Section 42 of the Act:      " Sec. 42: S. O. 115:- In exercise of the powers conferred by S. 42 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (Act No. 61 of 1985 the State Government hereby authorised all Inspectors of Policy, posted as Station House Officers, to exercise the powers mentioned in S. 42 of the said Act with immediate effect: Provided that when power is exercised by police officer other than police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned police Inspectors or S. H. O. of the Police Station concerned. "
(3.) EARLIER to it notification dated November 14, 1985 was in force which is S. O. 822 E and reads as under:      " S. O. 822 E- In exercise of powers conferred by sub-sec. (1) of S. 42 and S. 67 of the Act, the Central Government hereby empowers the officers of and above the rank of sub-inspector in the department of Narcotics and above the rank of Inspector in the departments of Central Excise, Customs Revenue, Intelligence and Central Economic Intelligence Bureau to exercise the powers and perform the duties specified in S. 42 with the area of their respective jurisdiction and also authorizes said officers to exercise the powers conferred upon them under Sec. 67. " A perusal of the aforesaid notification shows that according to the provisions of the Act, the powers of investigation particularly detention, search, arrest, and seizure were given according to Section 42 and 43 of the Act to the officers of the rank of Sub-inspectors and above the rank of sub-inspectors and the Department specified were Central Excise, Customs, Revenue Intelligence and Central Bureau. In the notification dated 14. 11. 1985 which was in vogue at the time of commission of offence in this case, the powers have been conferred only to the aforesaid mentioned officers. It was by notification quoted above dated 16th October 1986 that the State Government authorises all the inspectors of the police and sub-inspectors of police posted as S. H. O. , to exercise the powers mentioned in Section 42 of the Act. In the instant case, the accused respondent was detained and arrested on 14th January, 1986 and the alleged opium weighing 24 Kgs. 400 gms. is alleged to have been recovered from his possession on the day when the notification dated 16th October, 1986 was not in force and whereby the police officers of the State Government were not authorised to arrest the accused and seize the contraband articles from his possession. It is the notification dated 16th October, 1986 only which authorises the police officers of the State Government to arrest the accused and seize the articles from their possession. Prior to the notification dated 16th October, 1986, the State Government had not authorised the police officers to make the arrest and seizure under Section 42 of the Act of 1985. Thus, there can be no manner of doubt that prior to 16th October, 1986 the Sub Inspectors of Police or any other Inspector of Police was not authorised to exercise the powers of arrest and seizure mentioned in Section 42 of the Act, 1985. ;