Judgment Gopal Lal Gupta, J.-This appeal is directed against the Judgment dated 8-7-94 passed by the learned Sessions Judge. Sri Ganganagar convicting the appellant Gurdev Singh under Section 8 read with Section 15 of the NDPS Act and sentencing him to undergo R.I. for 10 years and pay a fine Of Rs. 1,000/ -: in default 6 months further R.I. 2. The prosecution case, in brief , is that on 18-5-93 PW 4 Kashi Ram, SI Police Station, Sadar, Sri Ganganagar received information from a ‘Mukhbir’ that a person was going towards Punjab taking powder of ‘Posta’ (Poppy). He therefore, went along with other police persons and two ‘motbirs’ on the Kachcha Rasta near Gunjal and there he found a Sikh Gentleman carrying one packet on his head and when accosted he disclosed his name as Gurdev Singh and told that he was having ‘Posta’. Shri Kashi Ram took out a sample from the dried crushed capsules of Poppy and sealed the same. The remaining article was also sealed. Thereafter, a report was lodged at the Police Station, Sadar, Sri Ganganagar where a case was registered. Sample was sent to the State Forensic Science Laboratory, Rajasthan, Jaipur and the Chemical Examiner reported that the sample gave positive test for the presence of chief constituent of opium and the sample is of dried crushed capsules of poppy. The police after completing the investigation, submitted a challan. The accused denied having committed any offence. The prosecution examined PW 1 Bhajanlal, PW 2 Badri Ram, PW 3 Jogendra Singh, PW 4 Kashi Ram, PW 5 Bhagwan Singh and PW 6 Makhan Singh. The learned Sessions Judge convicted and sentenced the appellant as above. .3. Arguments of learned Counsel for the appellant and the learned P.P. appearing for the State respondent have been heard and record perused. The contention of the learned Counsel for the appellant is threefold:- .(i) Shri Kashi Ram was not empowered to make seizure and arrest the accused; .(ii) It is not proved on record that the sample remained intact till it reached the FSL; .(iii) Themotbirs have not supported the recovery of contraband article from the accused and there are material contradictions in the statements of the two police officers. 4. 4. Asagainst this, the learned P.P. contends that the learned trial Judge has dealt with the contentions raised on behalf of the accused and there is no case to interfere in the finding of the learned trial Court. 5. KashiRam PW 4 who has made search and seized the article, was Sub Inspector at the relevant time. It has come in the statement that Shri Ravi Prakash was the SHO of the Police Station but he had gone out and as such he was incharge of SHO. Section 42 of the NDPS Act provides that an officer of the police who is empowered in this behalf by general or special order of the State Govt. may detain and search and if thinks proper arrest any person to whom 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. The State Govt. in this connection has issued 50 115 on 16th of Oct., 1986 which has been read by the learned trial Judge in his Judgment . According to this Notification only Inspector of the Police or the Sub Inspectors of Police who are posted as SHOs are empowered to exercise the powers mentioned in Section 42 of the Act. It is, thus, clear that Shri Kashi Ram who was only Sub Inspector could exercise the powers under Section 42 or Section 43 of the Act only when he was posted as SHO. The learned trial Court itself has observed at paras 24 & 25 of the Judgment that Shri Kashi Ram was not the empowered Officer. Of course, Shri Kashi Ram has deposed that he was incharge SHO but no documentary evidence to prove this fact has been produced on record and therefore, it has rightly been found that Kashi Ram was not the empowered officer to make search or seizure under Section 42 or 43 of the Act. 6. Of course, Shri Kashi Ram has deposed that he was incharge SHO but no documentary evidence to prove this fact has been produced on record and therefore, it has rightly been found that Kashi Ram was not the empowered officer to make search or seizure under Section 42 or 43 of the Act. 6. Thelearned trial Court has observed that in view of the observations in the case of State of Punjab vs. Balbir Singh 1994 SCC (Cri.) 634:(1994 CriLJ 3702) Shri Kashi Ram could make search and seizure under the provisions of the Code of Criminal Procedure. In my humble opinion this finding of the learned trial Judge is not sustainable. The Hon’ble Supreme Court in the aforesaid case has clearly observed as follows (Para 12 of CriLJ):- “If an arrest or search contemplated under the provisions of NDPS Act has to be carried out the same can be done only by competent and empowered Magistrate or officers mentioned therein.” It has further been observed as follows (Para 14 of CriLJ) :--“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 authorised it would perse be illegal and would affect the prosecution case and consequently vitiate the trial.” Of course, in this Judgment it has been observed that if the police officer while investigating a cognizable offence under the provisions of CrPC comes across any substance covered by the NDPS Act, the question of complying with the provisions of the Act including Section 50 would not arise. However, a reading of the statement of Kashi Ram (PW 4) and Jogendra Singh (PW 3) clearly goes to show that Kashi Ram had specific prior information that accused was taking substance covered by the NDPS Act. In this regard the statement of Kashi Ram (PW 4) is this that at 8 a.m. Mukhbir informed that a Sikh gentleman was going to Punjab and he had Poppy with him. It is thus crystal clear that Kashi Ram had already got the information that a Sikh gentleman was taking a substance covered by the Act. It cannot be said that in this case Shri Kashi Ram came across the substance while carrying out search or making investigation of a case. It is thus crystal clear that Kashi Ram had already got the information that a Sikh gentleman was taking a substance covered by the Act. It cannot be said that in this case Shri Kashi Ram came across the substance while carrying out search or making investigation of a case. At para 9 of the Judgment the Hon’ble Apex Court has clearly observed that the provisions of Chapter V are attracted when there is reason to believe that any person who is sought to be arrested and search has committed any offence punishable under Section 4 of the Act. It has been further observed at Para 11 of the Judgment as follows :-- …...under Section 42 only officers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information....” In the instant case Kashi Ram had received information that a Sikh gentleman was having poppy and therefore, it cannot be said that the search and seizure and the arrest had been made by Shri Kashi Ram when he was acting under the general powers of the Code of Criminal Procedure. It may be noted that even Kashi Ram was conscious of this fact and he has deposed that he had asked the accused that if he wanted he could be taken for search before a magistrate or a Gazetted Officer. In these circumstances, the finding of the learned trial Judge that in this case Shri Kashi Ram had found the accused in possession of the substance covered under the Act while proceeding under the general powers of the CrPC cannot be sustained. 7. As already stated, Shri Kashi Flam being Sub Inspector only was not empowered to act under Section 42 and 43 to make search, seizure and arrest of the accused. In the case of Umrao vs. State of Rajasthan (1988) 2 Raj LW 25 and Shantilal vs. State of Rajasthan (1989) 1 Crimes 276 (Raj.) which case have been referred to in the Judgment of Balbir Singh, it has been held by this Court that when search and arrest is made by an officer not empowered, the trial is vitiated. In the case of Umrao vs. State of Rajasthan (1988) 2 Raj LW 25 and Shantilal vs. State of Rajasthan (1989) 1 Crimes 276 (Raj.) which case have been referred to in the Judgment of Balbir Singh, it has been held by this Court that when search and arrest is made by an officer not empowered, the trial is vitiated. In this case also it has to be held that since Shri Kashi Ram was not the empowered officer to act under Section 42 and 43, the search and arrest becomes illegal and the conviction cannot be sustained. 8. Coming to the second contention of learned Counsel for the appellant the observations of the Apex Court in the case of State of Rajasthan vs. Daulat Ram A1R1980 SC 1314, 1980 CriLJ 929 (1980) 3 SCC 303 relied upon by the learned Counsel for the appellant may be usefully referred to. In that case it has been observed as follows:-“When the sample of opium changed several hands before reaching the public analyst, and the person in custody of samples are not examined, the inevitable effect will be that the prosecution has failed to rule out the possibility of the sample being changed or tampered with during the period in question.” It has been held by this Court in the case of Biram vs. State 1988 CriLR (Raj) 718 that if the prosecution does not establish that the seal on the samples remained intact till they reached the FSL, the benefit of suspicion goes to the accused. 9. TheFSL report is Ex. P/6. A perusal of the report shows that the sample was received under letter No. 350 dated 14-6-93 sent by the S.P. Sri Ganganagar. However, copy of this letter dated 14- 6-93 has not been produced in the case. Instead the prosecution has produced a copy of the letter dated 29-5-93 (Ex. P15). PW 5 Bhagwan Singh is the Constable who has taken the sample to the FSL. He has proved the acknowledgment receipt Ex.P/1 1. According to this document also the sample was sent vide letter dated 14-6-93. It is, thus, clear that the sample was not sent to the FSL vide letter Ex.P/15 and the letter under which the sample was sent has not been produced in the case. He has proved the acknowledgment receipt Ex.P/1 1. According to this document also the sample was sent vide letter dated 14-6-93. It is, thus, clear that the sample was not sent to the FSL vide letter Ex.P/15 and the letter under which the sample was sent has not been produced in the case. Besides that, according to Makhan Singh PW 6 he had handed over the sample to Shri Bhagwan Singh on 30-5-93 but Bhagwan Singh brought back the sample with an objection on 2-6-93 and then again he handed over the sample to Bhagwan Singh for taking to the FSL. It is, thus, clear that the sample remained in the hands of Bhagwan Singh from 3 0-5-93 to 2-6-93 and there were some objections also by the FSL and the sample was not accepted by the FSL authorities. However, Bhagwan Singh (PW 5) does not say that he had taken any sample to the Laboratory on 29-5- 93. He has also not deposed that he had kept the sample from 30-5-93 to 2-6-93 in fact. He only says that he had taken the sample on 16-6-93. It is, thus, clear that the sample did not remain with Makhan Singh from 30-5-93 to 2-6-93 and there is no evidence that the seal remained intact during that period. It is also clear that the FSL had refused to accept the samples because of certain objections. In these circumstances, the contention of the learned Counsel for ‘the appellant that as the seals of the samples were not intact so the FSL did not accepted the sample, cannot be held to be without any foundation. In any case, it becomes suspicious that the sample remained intact or not till it reached the FSL on 16-6-93. 10. Coming to the third contention, it may be staled that both the Motbirs PW 1 Bhajanlal and FW 2 Badri Ram have not supported the search and seizure from the accused near Gunjal. There appears a material contradiction in the statements of Jogendra Singh and Kashi Ram. According to Kashi Ram (PW 4) when the packet was opened it was found to contain two cartons. However, Jogcnder Singh PW 3 deposed that there were only two bags in each of the two cartons. It is thus, clear that Jogendra Singh and Kashi Ram Police Officers contradict each other on a material point. According to Kashi Ram (PW 4) when the packet was opened it was found to contain two cartons. However, Jogcnder Singh PW 3 deposed that there were only two bags in each of the two cartons. It is thus, clear that Jogendra Singh and Kashi Ram Police Officers contradict each other on a material point. This circumstance further dis credits the prosecution case. 11. As a result of the foregoing discussions, there is no hesitation in saying that the conviction of the appellant cannot be maintained. Appellant is entitled to acquittal. Consequently. I allow this appeal and acquit appellant Gurdev Singh of the offence under Section 8/15 NDPS Act. He is in jail. He will be released forthwith if not required in any other case.