B. C. PATEL, Y. B. BHATT, J. ( 1 ) ). The appellant-original accused being aggrieved by an order of conviction and sentence recorded against him under the provisions of Section 66a of the Bombay Prohibition Act (hereinafter referred to as the Prohibition Act) and under Section 17 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the NDPS Act) on 29 August 1989 whereby appellant is ordered to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lakh (in default of fine R1 for two years) under NDPS Act has preferred this appeal. ( 2 ) ). The short facts as emerges from the prosecution case are as under 2. 1 On 15th October 1986 Police Inspector Borse (PW3) of Prohibition Squad received an information that the accused residing at village Kadol is storing and dealing in opium where ordinarily cattles are being tethered. PI Borse reached the place with PSI Bharwad (PW4) Police Constable Gadhavi (PW5) Head Constable Kadve (PW6) and Constable Jethwa (PW7 ). Kanjibhai (PW1) and Amarsinhbhai (PW2) were called to assist the investigating agency as panchas. Substance of the information was explained to them and thereafter the aforesaid police officers in the presence of panchas carried out the raid. The appellant was found sitting in one of the rooms. In the said room beneath the floor Opium weighing 44 kgs was hidden and the same was dug out. From the panchnama it transpires that Opium was filled in plastic bags. In all 21 packets containing opium were recovered weighing about 44 kgs the value of which was Rs. 1 32 0 From each packet in all about 200 grams of Opium was collected in one separate tin for chemical examination and the rest of the quantity was stored in three different containers which were also sealed. All these containers including the sample were pasted with the slips bearing signatures of panchas and seal of Police Inspector was also affixed. The sample was forwarded to the office of Forensic Science Laboratory for analysis and report of which was received by the Laboratory on 29-11-1986. On 1 the process of analysis commenced and ultimately report was prepared on 30th July 1987 which was forwarded to the investigating officer. The sample was forwarded to the office of Forensic Science Laboratory for analysis and report of which was received by the Laboratory on 29-11-1986. On 1 the process of analysis commenced and ultimately report was prepared on 30th July 1987 which was forwarded to the investigating officer. On receipt of the report and after completing the investigation charge-sheet was filed in the court of Additional Sessions Judge Ahmedabad (Rural ). The learned Additional Sessions Judge framed charge vide Exh. 3 which was read over and explained to the appellant accused who pleaded not guilty to the charge and claimed to be tried. 2. 3 On behalf of the prosecution in all 10 witnesses were examined including the officer referred to hereinabove panchas investigating officer expert and Talati-Cum-Mantri. Learned Additional Sessions Judge on appreciation of evidence statement of accused recorded under Section 313 of Criminal Procedure Code and the submissions of the learned Advocates arrived at a conclusion that the appellant is guilty and convicted him by an order dated 29th August 1989 and after hearing the accused on the question of sentence passed the order of sentence as aforesaid. This appeal is directed against the aforesaid order of conviction and sentence. ( 3 ) ). This Court (Coram: R. J. Shah and K. J. Vaidya JJ.) on 7th October 1989 for the reasons recorded in the said order released the accused-appellant on bail and the appellant is on bail. ( 4 ) ). Mr. A. H. Mehta learned Advocate appearing for the appellant submitted that the prosecution has failed to prove the case against the accused-appellant on facts. He further submitted that the mandatory provisions contained in the NDPS Act have not been followed and as there is breach of mandatory provision the appellant should be acquitted in view of the law laid down by the Honble Supreme Court in the case of State of Punjab v. Balbirsing reported in (1994) 3 SCC 229 Mr. Mehta further submitted that the evidence is not at all satisfactory and benefit of doubt should be given to the appellant. ( 5 ) ). Mr. K. T. Dave learned APP. submitted that the prosecution by leading evidence of officers has proved its case beyond doubt. Mehta further submitted that the evidence is not at all satisfactory and benefit of doubt should be given to the appellant. ( 5 ) ). Mr. K. T. Dave learned APP. submitted that the prosecution by leading evidence of officers has proved its case beyond doubt. He submitted that it is not the case that the police officers or any of them had enmity with the accused or it is a case of planting by the raiding party. He further submitted that the fact that huge quantity of Opium was unearthed by the police personnel from the property which belonged to the appellant clearly indicates that the appellant is guilty. He further submitted that the appellant was found at the relevant time in the premises and that it is not the case of the appellant that the premises is being used by others and therefore the court should not interfere with the order of conviction. Mr. Dave further submitted that looking to the different size of packets of Opium it clearly appears that the appellant was involved not only in storing but was also engaged in selling Opium. Mr. Dave submitted that merely because the panchas have not supported the prosecution would not mean that the prosecution case must be rejected in toto more particularly when the Police Officers have no enmity with the appellant-accused and have searched the premises on information and when the expert has opined that the article in question is Opium. He further submitted that the evidence of police officers is corroborated in material particular and therefore the order of conviction should not be disturbed. So far as the mandatory provisions of NDPS Act are concerned. Mr. Dave submitted that looking to the facts and circumstances of the case it cannot be said that any breach is committed and therefore the accused is not entitled to any benefit. ( 6 ) ). The prosecution has examined Police Inspector Borse CID (Crime) Ahmedabad. From his evidence it reveals that the police party came to village Kadol on receipt of information for carrying out the raid under the provisions contained in the Prohibition Act. Two panchas were called and they were explained that the appellant was illegally dealing in opium. Thus on receipt of information in the presence of panchas the search was carried out. The appellantaccused was found sitting in the first room. Two panchas were called and they were explained that the appellant was illegally dealing in opium. Thus on receipt of information in the presence of panchas the search was carried out. The appellantaccused was found sitting in the first room. SRP constables took out the plastic containers after digging the floor. On smell it was realised that it was opium. Therefore from different packets sample was collected weighing about 200 grams for analysis in one tin. On the said tin slip bearing signatures of panchas was affixed by means of seal of Police Inspector and the remaining quantity was collected in three different tins and these tins were also sealed by putting slips bearing signatures of panchas and affixing seals. From that place weighing scales were also found All these articles were seized under a panchnama. Thereafter complaint Exh. 11 was filed by this witness. He himself has recorded the complaint. It is further stated by this witness that the sample was forwarded to the Forensic Laboratory for analysis. It is the case of the prosecution through this witness that the place which was searched was used for tethering the cattle. There are two houses belonging to the accused-appellant and the place where the raid was carried out except the accused-appellant none was found. To show that the premises in question belongs to the accused the prosecution has examined Gatorbhai Bhagwanbhai (PW9) who was at the relevant time Talati-cum-Mantri of village Kadol. He has produced the property register vide Exh. 21. It is suggested by the prosecution from this evidence that the house which was searched is of the accused-appellant. Panchnama Exh. 7 was drawn at the relevant time which bears the signatures of panchas. The learned Judge has not exhibited this panchnama. But so far as the signatures are concerned it is exhibited as the contents thereof are not admitted by the panchas. The say of panch Kanjibhai (PW1) is that he was called and was asked to sign and 8 to 10 signatures were taken. This witness has been declared hostile by the prosecution. Amarsingbhai (PW2) co-panch was also examined by the prosecution. He has also not supported the prosecution and for signatures he stated that as police personnel had asked to give signatures he has signed the papers and he has not read the same. He further stated that some 7 or 8 signatures were taken. Amarsingbhai (PW2) co-panch was also examined by the prosecution. He has also not supported the prosecution and for signatures he stated that as police personnel had asked to give signatures he has signed the papers and he has not read the same. He further stated that some 7 or 8 signatures were taken. He has denied the sealing procedure carried out in his presence. ( 7 ) ). The prosecution has examined Bhalchandra Baburao (PW6) working in the Prohibitions Squad who has stated that PI Borse received information that accused has stored opium and after verifying the said information they reached village Kadol. Chhaganbhai Bharvad (PW4) who at the relevant time PSI in Prohibitions Squad has also stated that on receipt of information they went to village Kadol and unearthed 44 kgs of opium from the house of the appellant. Thus from the evidence of police officers it is very clear that information was received that the appellant was dealing in opium and that was conveyed to the panchas and only thereafter raid has been carried out. Even in the complaint PI Borse has come out with the version that information was received that the appellant was dealing in opium where he was tethering cattle at village Kadol and complaint to that effect is at Exh. 11 a which is for an offence punishable under provisions contained in the NDPS Act. Thus it is very clear to us that information was with the police officer that the accused-appellant was dealing in opium illegally and raid was carried out after receipt of this information. The star witness Borse in chief examination at the initial stage stated that they came to village Kadol for carrying out raid for breach of (Bombay) Prohibition Act. But in the next sentence he has stated that to Panchas he has explained that the accused was keeping opium without pass or permit and dealing in the same. In the cross-examination he has stated that information which he received has been noted down in his personal diary and on further questioning he has shown his inability to produce the same before the court. Thus initial version that they came for carrying out raid for breach of Prohibition Act cannot be accepted as there is overwhelming evidence that there was information in advance that the accused was dealing in opium illegally. ( 8 ) ). Mr. Thus initial version that they came for carrying out raid for breach of Prohibition Act cannot be accepted as there is overwhelming evidence that there was information in advance that the accused was dealing in opium illegally. ( 8 ) ). Mr. A. H. Mehta learned Advocate for the appellant submitted that from the evidence of witnesses it is not established by the prosecution that the apellant can be said to be in conscious possession of opium. He further submitted that there is no clear cogent and convincing evidence to say that the premises which was searched was in exclusive possession of the accused and that others had no access. He further submitted that there is contradictory version about the room from which the articles were unearthed. PI Borse has stated that the accused was found in the first room and from Kotia (inside the room) SRP personnel unearthed the contraband articles. Mr. Mehta learned Advocate for the appellant wanted to place reliance on Panchnama with a view to point out that there is no clear evidence about the place from where the articles were recovered. But Panchnama is not an admitted document and therefore no reliance can be placed. So far as the evidence is concerned Mr. Mehta submitted that from the evidence of Gadhavi (PW5) it can be said that he has changed his version before the court because before the police his version was that from the Varanda portion the articles were unearthed and not from the room. This witness has given a different version. So far as other witnesses are concerned the evidence is consistent. Merely because Panchas are not supporting it cannot be said that the entire raid is a concocted one. It is not even suggested that any police officer had enmity with the appellant. There was no reason for the police officers to plant-in the manner in which the opium was secreted. Thus on 15-10-1986 police raided the premises of the appellant and unearthed articles cannot be doubted. ( 9 ) ). Mr. Mehta further submitted that the articles were seized on 15-10-1986 and the same has been received by Warden of the office of Senior Scientific Assistant Chemical Examiner on 29 while witness Jamnadas Kanjibhai (PW8) Senior Scientific Assistant commenced analysis of the article on 1-6-1987. ( 9 ) ). Mr. Mehta further submitted that the articles were seized on 15-10-1986 and the same has been received by Warden of the office of Senior Scientific Assistant Chemical Examiner on 29 while witness Jamnadas Kanjibhai (PW8) Senior Scientific Assistant commenced analysis of the article on 1-6-1987. He has stated that the tin was sealed and one slip bearing signatures of Kanjibhai Parsottam and Amarsinh Virsingbhai was also at the bottom of the tin. In the crossexamination it is stated that till this witness commenced the analysis the muddamal article remained in the custody of the Warden. He has admitted that other samples were also received for analysis which were kept with the Warden. It is stated that the Warden keeps the samples in his cupboard. On the said cupboard there. is no supervision of this witness. The prosecution has not examined the carrier who took the sample from the police station to the office of the chemical examiner. PSI H. B. Chavda (PW10) who took over the investigation form the Head Constable commenced further investigation. The learned Advocate for the appellant submitted that the date 15 16 18 1987 21 1987 and 23-10-1987 should be read as 15-10-1986 16 1986 18 and 23-10-1986. Mr Dave learned APP could not dispute about reading the dates of 1986 instead of 1987. PSI Chavda has stated that on 18- 10-1986 Muddamal article was for warded but Jamnadas (PW8) the chemical examiner has stated that the same was received on 29 The prosecution has tried to suggest that immediately the article was sent to the laboratory. However the expert who is an independent witness has not supported the version of the prosecution to that effect. Therefore it is for the prosecution to explain as to where the article remained. In a case like this if the delay is not properly explained adverse inference should be drawn more particularly when the person with whom the article remained is not examined. We do not find any evidence as to where the article remained from 18-10-1986 to 28- 11-1986. In a case like this if the delay is not properly explained adverse inference should be drawn more particularly when the person with whom the article remained is not examined. We do not find any evidence as to where the article remained from 18-10-1986 to 28- 11-1986. It is also required to be noted that the article remained in the office of the chemical analyzer under the custody of the Warden for a period of 8 months in a cupboard which could be opened by persons working in the office and that was not under the direct control of the witness chemical analyzer. ( 10 ) ). It is required to be noted that NDPS Act was enacted in the year 1985 with a view to make stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances to provide for the forfeiture of the property derived from or used in illicit traffic in narcotic drugs and psychotropic substances to implement the provisions of the international Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. The object of the NDPS Act is to make stringent provision for control and regulation of operations relating to those drugs and substances. At the same time to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers certain safeguards should be provided which in the context should be observed strictly. In absence therefore it is necessary to see that the sample is forwarded to the chemical examiner at the earliest without any delay in a condition which would not raise any doubt about the identity of the article in question. If that safeguard is absent the case is to be viewed in a different angle. The prosecution was always to see that the seizure or attachment of any incriminating article is properly seized or attached by the police officer in the presence of Panchas. While attaching such article police officer has to see that proper seals in the presence of Panchas have been affixed. Article seized has to be sent to the chemical examiner as early as possible and if there is an inordinate or unreasonable delay on the part of the prosecution it is essential for the prosecution to explain and satisfy the court that the accused is not prejudiced. Article seized has to be sent to the chemical examiner as early as possible and if there is an inordinate or unreasonable delay on the part of the prosecution it is essential for the prosecution to explain and satisfy the court that the accused is not prejudiced. Not doing so may well be taken to affect the merits of the case as reasonable suspicion may arise about the possibility of the same being tampered with when lying at the police station. The prosecution has to complete the chain by examining the person with whom it was sent and if the article is sent by post then by producing the letter and providing the same in accordance with law. Even the evidence of chemical examiner discloses that slip bearing the signatures of panchas was at the bottom of the tin and from his evidence it is not clear whether after pasting slip on the tin seal was affixed so as to cover part of the slip and tin or not. Evidence must be clear to the effect that slip was pasted to cover up the lid of the tin so that the same cannot be tampered with. Mr. Dave learned Public Prosecutor could not point out from the evidence as to whether the article remained with the Warden for number of days or not. In a case like this the prosecution must establish the complete link or chain so as to prove that the article in question after seizure remained in the sealed condition and it reached the laboratory in the same condition and there was no chance of tempering. Thus in this case it can be said that it is not established beyond reasonable doubt that the chemical examiner analysed the same article which was seized from the house of the accused. In view of the non-explanation as to where the article was and in view of the inordinate and unreasonable delay it would not be prudent to accept the prosecution evidence. In a serious offence like the present one such looseness is required to be deprecated. ( 11 ) ). These are the major infirmities in the prosecution evidence. Mr. In view of the non-explanation as to where the article was and in view of the inordinate and unreasonable delay it would not be prudent to accept the prosecution evidence. In a serious offence like the present one such looseness is required to be deprecated. ( 11 ) ). These are the major infirmities in the prosecution evidence. Mr. Mehta learned Advocate for the appellant submitted that the police officer who searched the premise in question was not a police officer as empowered for search seizure and arrest of a person without warrant or authorization by general or special order of the State Government. He further submitted that the officer had information yet he has not taken down the same in writing. He further submitted that it was the duty of an officer to sent the copy of the same to his immediate official superior. Mr. Mehta further submitted that there is violation of Section 57 of the Act in 50 far as the officers has not made a full report of all the particular of arrest and seizure to his immediate official superior. Section 42 is the relevant section which reads as under: 42 Power of entry search seizure and arrest without warrant or authorization (1) 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 of the Central Government or of tile Border Security Force as is empowered in this behalf by general or special order by the Central Government. revenue intelligence or any other department of the Central Government or of tile 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 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 any 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 resistence 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 conveyance which he has reason to believe to be liable to confiscation under this Act any document or other article he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; (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 authorization cannot be obtained without affording opportunity for the concealment of evidence or facility the escape of an offender he may enter and search building conveyance or enclosed place at any time between sunset and sunrise after recording grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. Mr. Mehta learned Advocate submitted that the officer was not empowered as contemplated under Section 42 of the Act for search seizure and arrest without a warrant. Mr. Mehta learned Advocate submitted that the officer was not empowered as contemplated under Section 42 of the Act for search seizure and arrest without a warrant. He further submitted that the officer had information in advance which he has taken down in his diary but has not produced before the Court though he was called upon to produce. Mr. Mehta therefore submitted that it is also doubtful whether he recorded the information for onward transmitting the same to his immediate official superior. He therefore submitted that the evidence of this police officer is of a doubtful nature and the evidence is not acceptable. He further submitted that the prosecution has miserably failed to prove that the police officer who searched the premises in question was an officer empowered under Section 42 of the Act. The search was carried out on 15 So far the State Government is concerned in exercise of powers conferred by sub-section (1) of Section 42 of the NDPS Act the Government of Gujarat invest all police officers and above the rank of head constable in the State of Gujarat within the limit of their respective jurisdiction with the power of entry search seizure detention and arrest without warrant between sunrise and sunset. The notification has been published in the Gujarat Government Gazette Extraordinary Part IVB dated 15-6-1987. Therefore from the date mentioned in the notification the police officer in the instant case viz. PI Borse or any other officer above the rank of head constable exercising powers in his jurisdiction was authorized to exercise the powers under Section 42 of the Act. Mr Mehta therefore submitted that in the instant case the officer had no power to enter the premises or make any search or seize the article or to arrest the person without a warrant on that date. If the police officer had a reasonable information that the accused have committed some other offence not punishable under NDPS Act and have raided the premises and articles in question are found then in that case the moment the articles are found which would be punishable under the provisions contained in NDPS Act the concerned officer from that stage will have to act according to the provisions contained in the NDPS Act Mr. Mehta further submitted that the police officer has to follow the said stringent provisions scrupulously. Mehta further submitted that the police officer has to follow the said stringent provisions scrupulously. The provisions make it obligatory that such of those officers mentioned in Section 42 (1) of the Act on receiving the information should reduce the same to writing while carrying out the arrest or search as provided under Section 42 (1) of the NDPS Act and as that mandatory provision is not followed in this case the prosecution case must fail. For this purpose he pressed into service a decision in the case of State of Punjab v. Balbirsing reported at 1994 (3) SCC 229. Mr. Mehta has placed reliance on this judgment with a view to point out that there is a failure to comply with the mandatory requirement and that would affect the prosecution case and would vitiate the trial. From that purpose Mr. Mehta has invited our attention to the judgment and particularly to the following paras : xxx xxx xxx the object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein on receiving an information should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42 (1 ). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial. 25 The questions considered above arise frequently before the trial Court. Therefore we find it necessary to set out our conclusions which are as follows: (2a) Under Section 41 (1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered then such search or arrest if carried out would be illegal. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41 (2) and 42 (1) can Act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers the same would be illegal. (2-C) Under Section 42 the empowered officer if has a prior information given by any person that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42 (1) if such officer has to carry out such search between sunset and sunrise he must record the grounds of his belief. (3) Under Section 42 (2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42 (1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not will be a question of fact in each case. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. 12 As against this learned Public Prosecutor submitted that the police officers are entitled to investigate the offence which is cognizable one. Section 156 of Criminal Procedure Code empowers any officer in-charge of a police station without the order of Magistrate to investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Therefore according to him these powers are not affected. So far as search is concerned Section 165 authorises the police officer to exercise the powers and make a search. Mr. Dave learned APP submitted that the officer carrying out the search would be acting under the provisions of Crpc viz. Section 165 of Crpc and even if there is no strict compliance of the provisions of Crpc then such search would not per sebe illegal and would not vitiate the trial. It is not possible to accept the contentions of the learned APP as the Apex Court has in clear terms observed that likewise only empowered officers or duly authorised officers enumerated in Sections 41 (2) and 42 (1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers the same would be illegal. It is also required to be noted that the Apex Court has observed in paras 12 and 13 as under: ( 12 ) ). Nand Lal v. State of Rajasthan is a case where a police head constable and a station house officer were not empowered to carry out investigation and it was contended that the whole investigation was illegal and consequently the trial was vitiated. The Rajasthan High Court held that for launching the prosecution or for initiating the proceedings under the Act the authority doing so must have a clear and unambiguous power. The Rajasthan High Court held that for launching the prosecution or for initiating the proceedings under the Act the authority doing so must have a clear and unambiguous power. In Bhajan Singh v. State of Haryana it was observed that only officers empowered under the Act can take steps regarding entry search seizure and arrest and that the relevant provisions of the Act are mandatory. In Umarao v. State of Rajasthan it was held that the search made by a police constable without jurisdiction and investigation made by an officer not empowered vitiate the trial. In Shanti Lal v. State of Rajasthan it was similarly held that search and arrest made by SHO who was not authorized under the Act were illegal. ( 13 ) ). Therefore if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorized it would per se illegal and would affect the prosecution case and consequently vitiate the trial. Thus an arrest or search contemplated under Section 42 is made by an officer not empowered or authorized it would per se be illegal and affect the prosecution case and consequently vitiate the trial. Therefore the contention of the learned APP cannot be accepted. 13 Mr. Dave learned APP relied upon a decision in the case of Aslambhai Ibrahimbhai v. State of Gujarat reported at 1989 (2) GLH 547 . The court has not considered the effect of non-compliance of Section 57 as in that case there was compliance of Section 57. In the instant case we are not concerned with the public place but we are concerned with a premises of a person which has been searched by the police officer who was not empowered by the State Government at the relevant time and here was no report made by police officer under Section 57 of the Act. Thus it is clear that the said decision is not applicable to the facts of this case. Mr. Dave submitted that in the aforesaid decision this Court has taken the view that the police officer has to follow the procedure under the Criminal Procedure Code and if that is followed the conviction would not be vitiated. He has relied upon para 3. 13 which reads as under: 3. Mr. Dave submitted that in the aforesaid decision this Court has taken the view that the police officer has to follow the procedure under the Criminal Procedure Code and if that is followed the conviction would not be vitiated. He has relied upon para 3. 13 which reads as under: 3. 13 in our view the provisions of the Criminal Procedure Code would be applicable to the investigation enquiry and trial except for which specific contrary provisions are made under the Act. Under Section 4 (2) of the Criminal Procedure Code all offences under any other law shall be investigated inquired into tried and otherwise dealt with according to the provisions contained in the Criminal Procedure Code. Under Section 37 of the Act the offences punishable under the Narcotic Act are cognizable ones. Under Sections 2 (c) of the Criminal Procedure Code cognizable offence means an offence for which a police officer is entitled to arrest without warrant. Therefore for the offences punishable under the Narcotic Act a police officer is entitled to investigate the offence in accordance with the provisions of the Criminal Procedure Code. However taking into consideration the seriousness and the gravity of the offence the Legislature thought it advisable that apart from the police officers who are entitled to investigate under the Criminal Procedure Code the powers be given to other officers and therefore; specific provisions are made to that effect in the Act. ( 14 ) ). Mr. Dave by reading Sections 41 42 43 and 53 of the NDPS Act submitted that other officers are also empowered and that does not mean that the police officer who is investigating the offence under the Act is not required to follow the Criminal Procedure Code. He has relied upon the following observations made in para 3. 13 as under: to the other officers limited powers are given. Under Section 53 the Central Government or the State Government as the case may be is entitled to invest any officers of the department mentioned therein with the powers of an officer-incharge of police station for the investigation of the offences under the Act. From the aforesaid discussion it would be clear that if the competent police officer has investigated the offence under the Act there is no question of following any procedure other than the procedure prescribed under the Criminal Procedure Code. Mr. From the aforesaid discussion it would be clear that if the competent police officer has investigated the offence under the Act there is no question of following any procedure other than the procedure prescribed under the Criminal Procedure Code. Mr. Dave submitted that therefore the police officer has independent powers to make search or seize the property or to arrest a person as the offence is cognizable one. It is not possible to agree with this submission because Apex Court after considering Section 42 in detail has held that if such arrest or search is made under the provisions of NDPS. Act by anyone other than an officer empowered under the said provisions the same would be illegal. If the police officer was not at all required to get authority from the State Government there was no need to empower the officers in this behalf by general or special order of the State Government under Section 42 of the Act. ( 15 ) ). The fact that the State Government has issued Notification No. GH-L-15- NDS-1007 10577 (II) M dated 15-6-1987 which is published in the Gujarat Government Gazette Extraordinary Para B destroys the submission made by learned Additional Public Prosecutor. It is under this notification all police officers of and above the rank of head constables in the State of Gujarat are empowered with the power of entry search seizure detention and arrest without warrant. Thus it is clear that the officers above the rank of Head Constable were empowered under Section 42 of the Act on the aforesaid date and not prior thereto. The contention is raised by the learned APP that the offence being cognizable the police officer is authorized to exercise the powers under the Criminal Procedure Code. That aspect has been considered by the Apex Court. Section 51 reads as under: 51 Provisions of the Code of Criminal Procedure 1973 to apply to warrants arrests searches and seizures. The provisions of the Code of Criminal Procedure 1973 (2 of 1974) shall apply in so far as they are not consistent with the provisions of this Act to all warrants issued and arrests searches and seizures made under this Act. Under the Criminal Procedure Code provisions are made with regard to warrant search arrest and seizure. The provisions of the Code of Criminal Procedure 1973 (2 of 1974) shall apply in so far as they are not consistent with the provisions of this Act to all warrants issued and arrests searches and seizures made under this Act. Under the Criminal Procedure Code provisions are made with regard to warrant search arrest and seizure. However Section 52 lays down that the provisions of Code of Criminal Procedure shall apply insofar as they are not go inconsistent with the provisions of this Act to all warrants issued and arrest searches and seizures made under this Act. Section 165 of the Criminal Procedure Code is a general provision. It empowers an officer in-charge of a police station or police officer making an investigation if he has reasonable grounds for believing anything necessary for the purpose of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay such officer may after recording in writing the grounds of his belief and specifying in such writing so far as possible the thing for which search is to be made search or cause search to be made for such thing in any place within the limits of such station. This power of search which is general in nature is quite different than from Section 42 of the NDPS Act. Under Section 165 of Criminal Procedure Code officer incharge of a police station or a police officer can exercise the power relating to search. So far as Section 42 of the NDPS Act is concerned officer being a superior in rank of constable of the police department of a State Government if he is empowered in this behalf by general or social order of the State Government and if he has reason to believe from personal knowledge or information given by any person and taken down in writing then can exercise powers under Section 42 for search seizure and arrest. Mr. Daves contention that the officer having information which would attract the provisions contained in Section 42 shall not apply and therefore he can search cannot be accepted in view of the decision of the Apex Court referred to hereinabove. ( 16 ) ). Mr. Daves contention that the officer having information which would attract the provisions contained in Section 42 shall not apply and therefore he can search cannot be accepted in view of the decision of the Apex Court referred to hereinabove. ( 16 ) ). Mr. Dave learned APP relying on para 6 of the judgment in the case of State of Punjab (supra) submitted that the non-compliance would amount to irregularity and the effect of the same would depend upon the facts and circumstances of each case. Therefore according to him even if a police officer is not empowered the case cannot be straightaway thrown out. We have considered the facts and circumstances of the case and we have come to the conclusion that the accused is required to be acquitted not only on the ground that the search is in contravention of the provisions contained in Section 42 of the NDPS Act. The Supreme Court after considering the provisions contained in Sections 41 and 42 has held that the provisions contained in Section 42 being mandatory in nature the failure to comply with this requirement affects the prosecution case and therefore vitiate the trial. Therefore it goes without saying that the provision being mandatory in nature it must be complied with. ( 17 ) ). Section 57 also provides for making a full report of all particulars of arrest and seizure to his immediate official superior within 48 hours after such arrest or seizure. By immediate official superior the Legislature intended to mean that official superior to the department only. If the police officer is raiding then he has to inform his superior within 48 hours. We find that there is no compliance of the said provision. The said provision has been made with a purpose and the purpose obviously would be to have certain checks on the investigating agency as the offence under Chapter IV of the NDPS Act is very serious and is punishable to the minimum sentence of 10 years and a fine of Rs. 1 lakh and when there is non-compliance of the provisions by police officers and more particularly when the identity of article examined is not proved to the satisfaction the same cannot be relied upon to base conviction. 10 Prosecution case is not supported by independent evidence. 1 lakh and when there is non-compliance of the provisions by police officers and more particularly when the identity of article examined is not proved to the satisfaction the same cannot be relied upon to base conviction. 10 Prosecution case is not supported by independent evidence. As delay in sending the sample and chance of tampering cannot be ruled out it would not be safe to base conviction and hence we allow this appeal. The order of conviction and sentence is quashed and set aside. The accused is acquitted. Bail bond shall stand cancelled. Mr. Mehta learned Advocate for the appellant is not claiming muddamal and the same is to be confiscated. .