FAROOQ HASSAN, J. - (1.) HAD Chhagan Lal (PW8) SHO, PS Khandela no authority to conduct impugned search in the absence of a specific notification under Section 42 of the Narcotic Drugs & Psychotrophic Substances Act, 1985 which was only issued and came into effect after the impugned search-if so was the trial against the appellant vitiated and could the conviction & sentence not sustain is a twin question which calls for an answer in this appeal arising out of the judgment dated 27-11-87 passed by the Additional Sessions Judge, Neem-ka-Thana, in the offences which have the deleterious effect playing havic with the health and well-being of a large segment of the society. So, in the preface of this judgment I must make it abundantly clear that I do not look upon with equanimity on offences under the Narcotic Drugs and Psychotrophic Substances Act, 1985.
(2.) FACTUAL matrix has little relevance to the issues raised and canvassed at the hearing The chronology of events herein narrated would bring to surface the contentions raised in this appeal. Chhaganlal (PW 8) was posted as Station House Officer, Police Station Khandela (District Sikar-Rajasthan) on August 1, 1986 - on that very date, he, himself, had lodged a report at the same police station with the averments inter-alia that, on August 1, 1986 at about 5 p. m. he was informed by one 'mukhbir' that in village Salwadi, Umrao (appellant, herein) was having Opium in his possession and occupation, on this information Chhaganlal along with Sikhpal-Singh ASI, Om Prakash, Ratanlal, Surjit Singh, Uttam Singh and Prabhudayal proceeded from Khandela to raid at Umrav's house, and reached at Umrav's house at about 6 p. m. in village Salwadi from where Umrav tried to run away but he was caught. On interrogation, Umrao answered and desired to discharge excrement, which created a doubt in the mind of Chhaganlal and he directed sepoy Prabhudayal to make a search on the person of Umrav, on which Prabhudayal found a pack in the fold of his 'dhoti' and upon opening of the said pack, the opium weighing 1800 grams was found which was seized. The appellant, Umrav was asked about license but he failed to show it. Two samples were taken out from opium seized, and after observing the necessary formalities, the samples were sealed. The recovery memo was prepared and the appellant was arrested. On the aforesaid report, case No. 46/86 for the offence under Secs. 17, 18, and 61 of the Narcotics Drugs and Psychotrophic Substances Act, 1985 (for short, 'the Drug Act') was registered. Site plan (Ex. p. 1) arrest memo (Ex. p. 2) and recovery memo of opium were prepared. The samples were sent to Forensic Science Laboratory for chemical examination, a report of which was received in a positive form. After usual investigation a challan was filed against the appellant Umrav. The learned Additional Sessions Judge, Neem-ka-thana after recording the evidence of the parties, and hearing them, found the appellant only guilty of offence under Section 17 of the Drugs Act and sentenced him to undergo ten years R. I. with a fine of Rs. one lac, in default of payment of fine, to further undergo one year's simple imprisonment, though the appellant had denied the charges levelled against him for the offence under Sections 17& 18, of the Drugs Act. Hence this appeal. The principal and foremost contention wrengled by the learned counsel Shri N. L. Tibrewal, appearing on behalf of the appellant, is that neither Chhaganlal who has investigated the case nor Prabhudayal (p. w. 2), a police constable has any authority to make any search on the person of the appellant, in as much as Chhaganlal, under Section 42 of the Drugs Act, was not authorised to investigate the case. Thus, according to Shri Tibrewal, the whole trial is vitiated and the conviction against the appellant does not sustain and as such the appellant is entitled to have the acquittal in his favour. Whereas, on the contrary, Shri Ajai Purohit, learned Public Prosecutor, strenuously contended that under Section 42 of the Drugs Act a police officer upon rank of the Sub-Inspector has power to enter, search, and seize and arrest without warrant or authorisation.
(3.) FOR a proper appreciation of the points in controversy, it is necessary to deal with the statutory provisions in issue. First I may refer to the provisions of Section 42 of the Drugs Act which run as under :- "42. Power of entry, search, seizure and arrest without warrant or authorisation- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central excise, narcotics customs, revenue intelligence or any other department the 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 if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset :- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or convey nce which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chap IV relating to such drug or substance; and (d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance; Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enlcosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or record grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. " For entry, search, seizure and arrest without warrant or authorisation, the officer of the departments of Central Excise, narcotics, customs revenue intelligence or any other department of the Central Government or the Border Security Force will have to be empowered by the Central Government by a general or special order, under Section 42 of the Drugs Act. So is the provision in the case of Officer of the State Government. However, these officers should be superior in rank to a peon, sepoy or constable either of the Central or the State Government. Thus, Section 42 of the Drugs Act makes it pateintly clear that the Officers must, be empowered by the Central or State Government as the case may be who could make entry, search, seizure or arrest without warrant or authorisation if any offence is apprehended or is committed under the Drugs Act, and that was the reason that Rajasthan State Government issued a notification on October 16, 1986 to the following effect: - "s. O. 115: - In exercise of the powers conferred by S. 42 the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 6! of 1985) the State Government hereby authorises all Inspectors of Police and Sub-Inspectors of Police, 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 SHO of the Police Station concerned. " The Central Government in the above context, had already issued notification dated November 14, 1985 earlier which runs as under: - "s. O. 822 E - In exercise of power 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 or Narcotics and of and above the rank of Inspector in the department 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 areas of their respective jurisdiction and also authorises said officers to exercise the powers conferred upon them under S. 67". ;