JUDGMENT 1. 1. This appeal is preferred against the judgment dated 16th January,'88 passed by the Addl. Sessions Judge. No. 5, Jaipur City, Jaipur by which. he found the appellant guilty under section 8/ 17 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the "Act") and sentenced him to 10 years' R. I. and a fine of Rs. 1,00,000/-. 2. Shri Gopal Ramawat, S.I. submitted a written report to S.H.O. Kotwali, Jaipur on 2.6.86 at 9.30 p m. alleging that at 7.30 p. m. he alongwith Head Constable Gokul Singh and Bane Singh left the Thana for Patrolling. At 8.30 p.m. when he reached near the corner of Govind Ravji ka Rasta he was informed by mukhbir that one person wearing pajama and kurta, having a plastic bag in his hand in which there is opium standing on the corner of Nahargarh Road near Piao (waterhut) waiting for the customers. On this information, he alongwith Police Constables and Laxman and Dharma Sindhi reached Nahargarh Road and found the person as informed by the mukhbir. That person or seeing the Police-men tried to run away but he was stopped by him. On enquiry he gave his name as Raju @ Basant S/o Shyam Rao resident of Thana Kankaria Ahmedabad. He was checked and opium was found in a plastic bag wrapped in a newspaper. That man was asked about licence for keeping this opium and he stated that he has no licence. Thus, he has committed an under section 8/17 of the Act. The opium was weighed by Rameshwar fruit seller and it was found 130 grams in weight. Out of that opium he took 30 grams of opium as a sample and sealed it in a white bag of white cloth and marked it as "A". The remaining 100 gms. opium was also sealed which is marked as "B". The opium was taken into possession along with Raju (Basant and they were brought to Police Station and produced before the S. H O. On this F. I. R. No. 294/86 under section 8/17 of the Act was prepared. The seized opium was sent to Forensic Science Laboratory (F.S.L.) for examination. The report of the F S.L. is Ex. P 8. On Chemical examination the sample contained in packet marked as 'A' was found to be of opium having 1.55% Morphine. The seized opium was sent to Forensic Science Laboratory (F.S.L.) for examination. The report of the F S.L. is Ex. P 8. On Chemical examination the sample contained in packet marked as 'A' was found to be of opium having 1.55% Morphine. After completing usual investigation challan was submitted in the Court. 3. The learned Additional District Judge framed charge against the appellant under section 8/17 of the Act who pleaded not guilty and claimed trial. The prosecution to establish its case has examined 8 witnesses. No defence evidence has been adduced by the accused-appellant. 4. The learned trial Court found that the case has been established against the accused-appellant under section 8/17 of the Act and sentenced him as mentioned above. 5. The learned Amicus Curiae argued that according to the report Ex P. 5, S. I. Gopal Ramawat on information by a motbir came to Nahargarh Road alongwith two witnesses Laxman and Dharmu Sindhi. There is nothing on the record to show that the eye witnesses belong to that locality, who gave the information about the accused has not been examined. So this is a lacuna in the prosecution case. The prosecution should have called the witnesses of that locality. 6. This argument is of no substance. It is not necessary to disclose the name of the motbir. The motbirs are the secret persons and on whose information the Police acts, therefore, it is not necessary to have examined the motbir. When the S. I. was informed that a person is standing at the corner of Nahargarh Road for selling opium there is no irregularity or illegality if the S. I. had taken two witnesses with him while approaching to that man. Therefore, the statements of Laxman and Dharmu Sindhi cannot be thrown away on this ground that thy do not belong to that locality where the accused was apprehended. 7. It was also argued that according to the prosecution case the opium was seized, 30 grams was taken as sample and sealed in a bag of white cloth. According to the report of F. S. L. Ex. P 8 it is found that the sample was wrapped in a polythene paper enclosed in a white cloth cover. 7. It was also argued that according to the prosecution case the opium was seized, 30 grams was taken as sample and sealed in a bag of white cloth. According to the report of F. S. L. Ex. P 8 it is found that the sample was wrapped in a polythene paper enclosed in a white cloth cover. It means that there was internal cover of polythene paper and the sample was kept in it and then the polythene paper containing the sample was kept in a bag of white cloth. No doubt, it is not mentioned in the report Ex. P. 5 that the sample was first kept in the polythene paper and then it was put in a bag of white cloth. Gopal Ramawat S. I. and other witnesses have not stated that the sample was first kept in a polythene paper and then it was kept in the bag of white cloth. This should have been stated by Gopal Das (PW 6) and other witnesses who were present at the time of sealing the opium. So a doubt is created whether the opium was first sealed in the polythene paper and then kept in a bag of white cloth or it was directly put in the bag of white cloth and sealed it. 8. Gokul Singh (PW 1) in the cross-examination has stated that the sample of opium which was put in paper bag and then that paper bag was kept in a cloth bag and then it was sealed. The other motbir witnesses Dharmu (PW 7) and Laxman (PW 8) and Rameshwar Prasad (PW 2) have been declared hostile and they have not supported the prosecution. Thus, there is difference in the statement and the report of the F. S. L. about keeping the sample of opium in the paper bag and then sealing it in a white cloth bag. Gokul Singh is a Head Constable Gopal Das (PW 6) is the Sub-Inspector and there is difference between the statements of these two Police Officers regarding keeping the sample of opium in the bag and sealing it. The statement that the Sub-Inspector was having all the materials for preparing cloth bag the needle and the thread for stitching the bag is unbelievable. Then the seal was affixed on the bag. The statement that the Sub-Inspector was having all the materials for preparing cloth bag the needle and the thread for stitching the bag is unbelievable. Then the seal was affixed on the bag. What was that seal and who brought that seal after sealing the packet where the seal remained, the evidence of the prosecution is silent on these points. It is the deity of the prosecution to prove that the particular seal was used for sealing the packet. The impression of that seal should have been submitted along with the papers of the challan. When the sample is sent to the F. S. L. for examination a forwarding letter is sent with the sample and on that forwarding letter the seal used by the investigating officer for sealing the packet is generally affixed so as to enable the Director, F. S. L to compare the seal on the packet with the seal affixed on the forwarding letter. In this case the forwarding letter sent to F. S. L. along with this sample has not been produced. There is no proof showing that the Director, F. S. L. was informed that such and such seal was affixed on the packet. The Form on which the report Ex. P 8 has been submitted by the F. S. L. is a printed form and it has been mentioned by type that the seals were intact. There is no mention in this report as to what type of that seal was on the packet which was found intact. This report Ex-P 8 has the seal of Laboratory which means that after examining the packet it must have been sealed again in the Laboratory and they had affixed their seal, the specimen of that seal has been fixed on the report Ex. P 8 9. There is one aspect also which has an importance that when the packet is sealed it is signed by the witnesses. The Sub-Inspector should have taken the signatures of the person in whose presence the opium was taken and the sample was kept in the bag and then sealed that bag. So there must be signatures on the bag of those witnesses. Gokul Singh (PW I) Head Constable has stated that on the sealed packet i. e. on the bag of white cloth he has not put his signatures. So there must be signatures on the bag of those witnesses. Gokul Singh (PW I) Head Constable has stated that on the sealed packet i. e. on the bag of white cloth he has not put his signatures. It means that none of the witnesses (were) asked to sign that bag. It is very easy to open that bag, reprove the contents of the bag put another contents in it and then again seal it. There is no check on such Police Inspector or the Investigating Officer to temper with this packet Another important aspect as argued by the learned Amicus Curiae is that there is no proof on record as to where this opium was kept, if it was kept in the Malkhana where (sic whether) the seal affixed on the packet remained intact and was not tempered with by anybody when it was sent to F. S L for examination. The Malkhana Incharge has not been examined, so there is no proof where the sealed packet containing opium was kept for 19 days i e. from the date it was sealed upto the date when it was sent to F S. L for examination. There is nothing on the record to show that the seal was not tempered with during there 19 days. The prosecution should have examined the witnesses to prove that the sealed picket was kept it the Malkhana under the Malkhana in-charge and it wets kept for such a period where the seal remained intact and was not tempered with. It was also their duty to prove that the sealed packet which was sent to F. S. L. contained the same substance from the time of seal the pocket upto opening it for examination. As there is no proof to it a serious doubt is created in the case of the prosecution. This ground itself sufficient to allow the appeal and set aside the conviction. 10. The learned Public Prosecutor has relied on the case of Abdul Sattar v. State 1988 (2) Crimes 812 and on the case of Radha Kishan Parashar v. State 1988 (2) Crimes 298 . Both these cases are of Bombay High Court. The case of Abdul Sattar (supra) is with regard to search and seizure and it has been held that where there is procedural infirmity it would not vitiate the conviction of the appellant. Both these cases are of Bombay High Court. The case of Abdul Sattar (supra) is with regard to search and seizure and it has been held that where there is procedural infirmity it would not vitiate the conviction of the appellant. In the case of Radha Kishan Parashar (supra) it has been observed that "it is not necessary for the prosecution to call all the witnesses who may have seen the occurrence". I have gone through the case cited by the learned Public Prosecutor and with respect I do not agree with these principles. 11. It was argued by the learned Amicus curiae that the Sub-Inspector Shri Gopal Ram was seized the opium and arrested the appellant as is clear from the report Ex-P 5 arrest memo Ex P. 2 and the recovery memo Ex. P 1. All these documents have been prepared by Gopal Ramawat, the Sub-Inspector. The argument is that this Sub-Inspector has no jurisdiction to arrest the accused, seize the opium and investigate the matter as it falls under the Narcotic Act. In this respect arguments were advanced with regard to Section 42 of the Narcotic Act. She has also relied on the case of Nand Lal v. State of Raj 1987 (II) RLR 679 ; Hanuman Prasad v. State of Raj 1987 Cr. L.R. (Raj.) 524 and Umrau v. State of Rajasthan 1988(1) RLR 796 . 12. The learned Public Prosecutor argued that Sub-Inspector of Police has power to arrest the person and investigate the matters under Narcotic Act. He has argued that there is difference between Section, 42 and 43 of this Act. Both these sections are independent to each other and under section 43 of the Act,the Sub-Inspector of the Police has the power to arrest and seize the opium because in this, case accused was found in possession of the opium at a public place. According to him Section 42 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 is with regard to taking search seizure and arrest without warrant when the substance was found kept or concealed in a building or enclosed place. But Section 43 of this Narcotic Act deals where the substance is seized in a public place. So this Section 43 is an independent section. 13. But Section 43 of this Narcotic Act deals where the substance is seized in a public place. So this Section 43 is an independent section. 13. The learned Public Prosecutor also argued that according to Section 42 of the Narcotic Act the Officer of the revenue, drugs, control, excise, police or any other department of a State Government as is empowered in this behalf by the State Government are entitled to seize search and arrest the person who violates the provisions of this Act. So by this Section 42 a Police Officer has been given power to arrest and search the person. There is no necessity for the State Government to issue a notification empowering the Police Officers for this purpose. According to him if the Government thinks that this power is to be given to any other department apart from Police department, Excise department Drugs department and Revenue department then it was necessary to issue a notification otherwise, the other departments specially the Police department is automatically empowered to arrest and seize the person carrying the opium under section 42 of the Act. 14. It was argued on behalf of the accused-appellant that this is not the position as argued by the learned Public Prosecutor. Section 42 & 43 of the Act are not separate to each other but both the Sections are connected as is clear from the very first line of Section 43 of the Act. Section 42 is a rider upon Section 43. To understand this controversy it is necessary to reproduce Sections 42 and 43 of the Act. 15. Section 43 of the Act says that such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Revenue, Drugs Control, Excise. Police or any other department of the State Government as is empowered in this behalf by the State Government vide general or special order. It means that the legislature has given the State Government power as to whom they want to give this power for entering. searching, seizing and arresting without warrant the person who violates the provisions of this Act. 16. The Central Government issued a notification under section 42(1) and Section 67. This notification bears the No. 6/85/F. No. 664/85 dated 14/7/85. It means that the legislature has given the State Government power as to whom they want to give this power for entering. searching, seizing and arresting without warrant the person who violates the provisions of this Act. 16. The Central Government issued a notification under section 42(1) and Section 67. This notification bears the No. 6/85/F. No. 664/85 dated 14/7/85. By this notification the Central Government was also empowered to issue a notification empowering the officers for this purpose and they accordingly issued this notification. Similarly, the State Government issued a notification on 15th January, 86 which reads as under:- "S. O. 173-In exercise of powers conferred by S. 42 of the Act, the State Government hereby authorises all Excise Officers (not below the rank of Inspector) to exercise the power mentioned in Section 42 of the said Act with immediate effect provided that when power is exercised by an Excise Officer other than Excise Inspector of the circle concerned, such officer shall immediately hand over the person arrested and article seized to the Excise Inspector of the Circle concerned. No. F. 1(3) FD/EX/85 dated 24.1.86". 17. Issuance of Notification by the Central Government and the State Government indicates that the officers mentioned under section 42 have not been empowered for such seizure or arrest automatically in view of this Sec. as argued by the learned Public Prosecutor. According to this section the legislature has enacted that such and such officers would be entitled to have these powers but those powers are to be given to those officers by issuing the notification and accordingly the Central Government and State Government had issued the notifications as mentioned above. If the argument of learned Public Prosecutor is accepted then there would be no necessity for the Central State Governments to issue these notifications. This Act was enacted by the Central Government. The Central Government while enacting this law knew that unless a notification is issued the officers mentioned in Section 42 could not be empowered for this purpose and that is why the Central Government issued a notification dated 1-11-85. Similarly, the State Government issued another notification dated 15-1-86. Now we read both the notifications issued by the Central/State Governments. The Central Government while enacting this law knew that unless a notification is issued the officers mentioned in Section 42 could not be empowered for this purpose and that is why the Central Government issued a notification dated 1-11-85. Similarly, the State Government issued another notification dated 15-1-86. Now we read both the notifications issued by the Central/State Governments. They empower the Central Excise Department, Custom and Revenue Intelligence and Central Economic Intelligence Bureau (under notification by Central Government) and Excise officers other than Excise Inspector of the circle by the notification issued by the State Government. Both these notifications have not given power to a Police Officer to exercise the power given in Section 4 of the Act. The Police Officers were specifically not given power to arrest. search and arrest without warrant the person contravening the provisions of the Act. Therefore, unless the Police Inspector or the Police Officer is given that power through the notification, he is not authorised to seize or arrest a person who is carrying the opium or the substance which is an under the Act. There is another very important aspect and this aspect is that the State Government by further notification dated 16th October,86 gave power to Police Officers. Prior to this notification dated 16-10-86 the notification in force was of 15th January, 86 where the Police Officers were not empowered to exercise the powers of Section 42 of the Act. The Notification dated 16-10-86 is as under:- "In exercise of the power conferred by section 42 of the Narcotic Drugs and Phychotropic Substances Act, 1985 (Act No. 61 of 1985) the State Government hereby authorises all Inspectors of Police and Sub-Inspectors of Police, posted as Station House Officers, to exercise the power mentioned in Section 42 of the said Act with immediate effect." A proviso is also added to it which also gives an important direction which says "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 Inspector or SHO of the police Station concerned." 18. Thus, after issuing the notification dated 16-10-86 the officers of Police Department were answered (sic empowered) to exercise the powers of Section 42 of the Act. Thus, after issuing the notification dated 16-10-86 the officers of Police Department were answered (sic empowered) to exercise the powers of Section 42 of the Act. Prior to this notification dated 16-10-86 such Police Officers were not empowered to exercise the power of Section 42 of the Act. 19. In Section 43 of the Act the first line is that Any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance mentioned in this Act. Now this Sec. is qualified with Section 42. Under section 42 the powers are given to these officers for search, seizure and arrest in a building conveyance or enclosed place. Section 42 of the Act does not qualify an open place then what would the the position if the person is found in possession of psychotropic substances at a public place and for that purpose Section 43 of the Act was enacted. This Section 43 is particularly for the committed at the public places. If a place is not a public place or the place is a private building or private place then Section 42 will apply but if the offence has been committed at a public place which is not a building, a private place and not encircled area then according to Section 43 the power is given to those officers under this Sec. These officers may only he as mentioned in Section 42 of the Act. Only these officers who are empowered by the notifications of the Central Government or State Government are empowered to seize in any public place or in transit, any narcotic drug or psychotropic sub twice or confiscate any document as mentioned in Section 43 of the Act. So certainly Section 42 and Section 43 are independent sections. Therefore, unless a power is given to the Police Deptt., an officer of the Police Deptt. has no power to exercise the powers mentioned in Section 42 or Section 43 of the Act. This power has been given to the Police Officers vide the Notification dated 16-10-86 as referred above. Prior to the issuance of the Notification dated 16-10-86 any officer of the Police Department had no power to seize or arrest any person under the Act having narcotic drug etc. The prevent case relates to 2-6-86. This power has been given to the Police Officers vide the Notification dated 16-10-86 as referred above. Prior to the issuance of the Notification dated 16-10-86 any officer of the Police Department had no power to seize or arrest any person under the Act having narcotic drug etc. The prevent case relates to 2-6-86. The information was given to the Sub-Inspector,Shri Gopal Ramawat on 2-6-86 at 8.30p.m. by a mukhbir and after receiving the information he went to Nahargarh....(illegible) with opium in it and he seized the opium and arrested the accused as is clear from the seizure memo Ex. P. 1 and arrest memo Ex. P. 2 and later on he submitted the memo Ex. P 5 along with the accused and the seized articles to the SHO Kotwali, Jaipur. It means that before submitting the accused and the seized opium, Gopal Ramawat (PW 6), the Sub-Inspector, started the investigation and after it he submitted the accused and the seized articles to the SHO concerned. Firstly, on 2-6.86 the Sub-Inspector, who is of Police Department, was not authorised and empowered to exercise the power of Section 43 of the Act. Then for the sake of the argument believe that he has that power then too he has no power to investigate and arrest the accused because he is not authorised according to the Notification dated 16-10-86. By this Notification the State Government has authorised all Inspectors of Police and Sub-Inspectors of Police posted as Station House Officers to exercise the powers mentioned in Section 42 of the Act. Gopal Ramawat is ex Sub-Inspector of Police Department but he was not posted as Station House Officer therefore. he was not authorised by the Notification dated 16-10-86. 20. In such circumstances. I am of this opinion that Shri Gopal Ramawat, Sub-Inspector was not authorised to seize the opium and arrest the appellant on 2-4-86. The entire prosecution of the appellant is bad in law. 21. In view of my above observation the appeal is accepted. The appellant is not found guilty of the under section 8/17 of the Narcotic Drugs and Psychotropic Substance Act, 1985 as held by the Additional Sessions Judge. No. 5, Jaipur City Jaipur. The accused-appellant is hereby acquitted. He is in Jail will be released forthwith, it not required in any other case.Appeal Accepted. *******