JUDGMENT 1. - This appeal has been filed against the judgment dated 10.8.1993 passed by the Special Judge, NDPS Act Cases, Jaipur District (Sessions Judge Jaipur District) whereby he convicted the appellants for the offence under section 8/18 of the NDPS Act (hereinafter to be referred as the Act) and sentenced each of them to undergo rigorous imprisonment for 10 years' and a fine of Rs. one lac. 2. In short, the prosecution case is that on 22.5.1992, Shri A.K. Saxena, Sub-Inspector, Central Bureau of Narcotics (CBN) along with other employees of the Narcotics Department were on duty at Check Post No. 5 for checking the vehicles. At about 5.30 a.m. on 23.5.1992, a bus of RSRTC No. RJ-14 P-1699 coming from Chittorgarh to Jaipur was checked in the presence of Driver Kanhaiyalal and Conductor Radhey Shyam. At the time of checking, two persons were found sitting on Seats No. 37 and 38 having one suitcase. The suitcase was not locked. On opening it, a plastic bag containing opium was found. On weighing, it was found 7.600 kg. The opium was seized in the presence of motbirs, sample was taken for chemical analysis, after completing all the formalities, a charge sheet was filed in the Court against the appellants because they were not having any licence for keeping or carrying the opium. 3. After hearing the arguments, charge under section 8/18 of the Act was framed but the accused denied the charge and claimed trial. 4. The prosecution has examined 7 witnesses in support of its case. PW 1 Kanhaiya Lal and PW 2 Radhey Shyam are driver and conductor respectively, but both of them have not supported the prosecution case, as such were declared hostile. PW 3 Om Prakash, PW 4 Surendra Singh and PW 5 Bhagwan Singh are the Constables of Narcotics Department, PW 6 A.K. Saxena is the sub-Inspector, PW 7 Mahesh Kumar is the Inspector of Narcotics Department. Statements of accused under section 313 Cr.P.C. were recorded, they denied all the allegations of the prosecution witnesses. 5. After hearing the arguments, the learned Special Judge held that opium weighing 7.600 kg. was recovered from the possession of the accused persons and as such appellants were convicted and sentenced as indicated above. Hence this appeal. 6. Statements of accused under section 313 Cr.P.C. were recorded, they denied all the allegations of the prosecution witnesses. 5. After hearing the arguments, the learned Special Judge held that opium weighing 7.600 kg. was recovered from the possession of the accused persons and as such appellants were convicted and sentenced as indicated above. Hence this appeal. 6. The learned counsel appearing on behalf of the appellants submitted that in this case search, seizure, arrest was conducted and made by PW 6 Shri A.K. Saxena, Sub-Inspector, Narcotics Department, but according to the provisions of Section 42 of the Act he was not empowered in this behalf by the Central Government, therefore, the search and seizure was without jurisdiction and both the independent witnesses PW 1 Kanhaiya Lal and Radhey shyam have not supported the prosecution case. The mandatory provisions of Sections 50, 55, 57 have not been complied with, therefore, the whole trial of this case stands vitiated. The prosecution has come with a case that attache was found on the thighs of both the accused persons, but it is not possible at all, moreover, the prosecution case itself has been demolished by the prosecution witnesses. There are material contradictions and infirmities in the statements of prosecution witnesses and the prosecution has failed to prove the conscious possession of the appellants over the attache. The prosecution has failed to prove that the samples of the opium remained intact after seizing till it reached in the FSL. Therefore, this appeal be allowed and the appellants be acquitted. 7. The main thrust of the argument of the learned counsel for the appellants is that the search and seizure was conducted by an unauthorized person in clear violation of mandatory provisions of the Act. I have gone through the statements of the prosecution witnesses and perused Ex. P/1, seizure memo of opium, Ex. P/2 and P/3 arrest memos of accused appellants and Ex. P/10, FIR of the case. According to the prosecution case, the bus was checked by Shri A.K. Saxena, Sub-Inspector, Narcotics Department, therefore, prosecution has to prove that Shri Saxena was empowered by the Central Government to make search and seizure of the opium. It is not disputed that Shri Saxena at the point of time was Sub-Inspector in Narcotics Department. Section 42 of the Act enables certain officers duly empowered in this behalf by the Central Govt. or the State Govt. It is not disputed that Shri Saxena at the point of time was Sub-Inspector in Narcotics Department. Section 42 of the Act enables certain officers duly empowered in this behalf by the Central Govt. or the State Govt. to enter into and search any building, conveyance or enclosed place for the purposes mentioned therein without any warrant or authorisation. It is not every officer who is authorised to carry out search without warrant. The Central Government has by notification No. 6/85/F No. 664/51/85-Opium Vide S.O. 822(E) dated 14.11.1985 as amended by S.O. 3776 dated 1.11.1986 empowered the officers of and above the rank of Sub-Inspector in the Department of Narcotics to exercise the powers and perform the duties specified in this section within the area of their respective jurisdiction. 8. It has been held by Hon'ble the Supreme Court in the case reported in State of Punjab v. Balbir Singh, in 1994 Criminal.L.R. (SC) 341 , as under : "If a police officer without any prior information as contemplated under the provisions of the NDPS Act make a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Criminal Procedure Code and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during search or arrest there is a chance recovery of any narcotics drug or psychotropic substance then the police officer who is not empowered should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. Likewise only empowered officer or duly authorised officer as enumerated in Section 41(2) & 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 any one other than such officer, the same would be illegal". Likewise only empowered officer or duly authorised officer as enumerated in Section 41(2) & 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 any one other than such officer, the same would be illegal". In this case it has been submitted by the learned Public Prosecutor that the search and seizure was conducted under the supervision of Shri Mahesh Kumar, Inspector Narcotics who was present throughout there as stated by him and he was authorised by the said notification issued by the Govt. of India. Therefore, the search and seizure has been made by an empowered officer. 9. A bare perusal of the Ex. P/1 - search Memo, Ex. P/2 - Arrest Memo, Ex. P/3 - Panchriama, Ex. P/4 - Seal Impression Memo and Ex. P/5 - site plan etc. shows that all the documents bear the signatures of Shri Saxena. Not a single memo has been signed by Shri Mahesh Kumar. Moreover, Ex. P/1 the search memo shows that notice under section 50 of the Act was given orally by Shri Saxena and not by Shri Mahesh Kumar, thereafter, search was made by Shri Saxena, in my opinion, by mentioning the name of Shri Mahesh Kumar in Ex. P/1 is not the compliance of Section 42 of the Act. The learned Public Prosecutor could not show me any notification issued by the Central Govt. under section 42 of the Act empowering the Sub-Inspector of the Narcotics Department for making search and seizure under the Act. 10. Therefore, the search and seizure was not made by the duly empowered officer as contemplated under section 42 of the Act, the conviction of the appellants under section 8/18 of the Act is liable to be set aside on this ground alone. 11. Accordingly, the appeal is allowed, the conviction of the accused appellants under section 8/18 of the Act and the sentence imposed upon them for the same are hereby set aside. The appellants be released forthwith, if not required in any other case.Appeal allowed. *******