Milap Chandra, J. - (1.) Heard learned Public Prosecutor had perused the application for leave to appeal and the impugned judgment.
(2.) Admittedly, the accused respondent was arrested by Head constable Chandan Singh on February 1, 1986 and a packet.said to be containing 900 grams of opium was also recovered from his person by Chandan Singh. The learned Sessions Judge, Balotra acquitted the accused respondent relying upon Nandlal v. State of Rajasthan, 1987 Cr.L.R. (Raj.) 698. It is not disputed that the facts of this reported case are similar to instant case.
(3.) It has been contended by the learned Public Prosecutor that the provisions of section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) has not been considered in the aforesaid reported case. Section 36 of the Act provides that not standing anything contend in Cr. P.C., 1973 every offence punishable under this Act shall be cognizable. He urged that every policeman is empowered to make arrest and seizure. There is not great force in this contention. Section 41, Cr. P.C., 1973 empowers police officer and not a police constable or Head constable to make arrest. This is clear from the provisions of section 55, Cr. P.C., 1973. Section 42 of the Act also excludes police constable. Head constable is also a constable. He cannot be said to be a police officer.;