Honble TIWARI, J.–This appeal is directed against the judgment dated 28.9.93 passed by the Special Judge, NDPS Act Cases, Jaipur (District & Sessions Judge, Jaipur District) in Criminal Case No. 53/92 whereby, he convicted the appellants for the offences under Section 8/18 of the NDPS Act, 1985 (hereinafter to be referred as `the Act) and sentenced each of them to undergo rigorous impri- sonment for 10 years and a fine of Rs. one lac. (2). In short, the facts of the case are that on 31.1.92, Shri Ashok Kumar Saxena. Sub Inspector, Central Bureau of Narcotics (CNB) checked the truck bearing No. C-II-7982 near village Kukas. Shri Gurmit Singh Driver, Jujhar Singh Cleaner, Paramjeet Singh owner and the present appellants in all 5 persons were found in it. At the time of search a brief case was found in the possession to the appellants, 2.200 kgs. of opium was found in it. The opium was seized, sample was taken for chemical analysis which was found to be of opium and after completion of investigation, a charge sheet was filed in the Court against all the five persons u/Ss. 8/18, 8/29 of the Act. (3). After hearing the arguments charge under Sec. 8/18 of the Act framed against the appellants and under Section 8/29 of the Act against driver, cleaner and owner of the truck was framed. All of them denied the charge and claimed trial. (4). The prosecution in support of its case examined eight witnesses; PW 1 Om Prakash Head Constable, PW 2 Bhagwan Singh Constable, PW 3 Ashok Kumar Saxena Sub Inspector, PW 6 Nand Lal Rai Inspector, PW 7 Mahesh Kumar Inspector, PW 8 Surendra Singh Constable of Central Narcotics Department, and PW 4 Mool Chand and PW 5 Radhey Shyam were the motbirs, but they have not supported the prosecution case, as such were declared hostile on the request of prosecution. (5). Statements of accused persons were recorded under Section 313 Cr.P.C. They have denied all the allegations and circumstances appearing against them in the prosecution evidence and examined DW 1 Balchand in their defence. (6). After hearing the arguments and on the basis of evidence adduced before him, the learned Special Judge held, that 2.200 kgs. (5). Statements of accused persons were recorded under Section 313 Cr.P.C. They have denied all the allegations and circumstances appearing against them in the prosecution evidence and examined DW 1 Balchand in their defence. (6). After hearing the arguments and on the basis of evidence adduced before him, the learned Special Judge held, that 2.200 kgs. opium was recovered from the possession of the appellants, therefore, convicted and sentenced them under Section 8/18 of the Act as mentioned above, but acquitted accused Gurmit Singh Driver, Jujhar Singh cleaner and Paramjeet Singh, owner of the truck for the offence under Section 8/29 of the Act. Therefore, this appeal has been filed by the present appellants. (7). I hve heard the learned counsel for the appellants as well as learned Public Prosecutor at length and carefully perused the record. (8). The contention of the learned counsel for the appellants is that in this case search, seizure and arrest was conducted and made by PW 3 Shri Ashok Kumar Saxena. Sub Inspector, Central Bureau of Narcotics, 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, seizure was without jurisdiction. Both the independent motbirs have been declared hostile because they have not supported the prosecution case. The mandatory provisions of Sections 50, 52, 57 have not been complied with, therefore, the whole trial of the case stands vitiated. The pro- secution has come with a case that brief case was found in the possession of accused appellants. There is no proof that the brief case was belonging to the appellants or it was in conscious possession of the appellants, other persons were also travelling in the truck. Therefore, appellants cannot be convicted merely on the basis that a brief case containing opium was found in the truck. There are ma- terial contradictions and infirmities in the statements of prosecution witnesses, the prosecution case itself has been demolished by the prosecution witnesses. The prosecution has failed to prove that the sample of the opium remained intact after seizing till it reached in FSL. Therefore, this appeal be allowed and appellants beacquitted. On the other hand, the learned Public Prosecutor has supported the judg- ment of the trial Court and has submitted that after compliance of mandatory provisions of the Act, opium was seized. Therefore, the appeal be dismissed. (9). Therefore, this appeal be allowed and appellants beacquitted. On the other hand, the learned Public Prosecutor has supported the judg- ment of the trial Court and has submitted that after compliance of mandatory provisions of the Act, opium was seized. Therefore, the appeal be dismissed. (9). The main thrust of the argument of the learned counsel for the appellants is that the search and seizure was conducted by an unauthorised 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/3 arrest memo, Ex.P/8 seal impression memo, Ex.P/9 site plan and Ex.P/12 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 seize 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. 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 14.11.85 as amended by S.O. 3776 dated 1.11.86 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. (10). It has been held by Honble the Supreme Court in the case reported in State of Punjab vs. Balbir Singh (1) 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 Cr.P.C. 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 requirement 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. Likewise only empowered officer or duly authorised office r as enumerated in Secs. 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 any one other than such officer, the same would be illegal. (11). In this case it has been submitted by the learned Public Prosecutor thatthe 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. (12). A bare perusal of Ex.P/1 Seizure memo of opium, Ex.P/3 to Ex.P/7 arrest memos, Ex.P/8 seal impression memo, Ex.P/9 site plan and Ex.P/12 FIR 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 Sec- tion 42 of the Act. The learned Public Prosecutor could not show me any notification issued by the Central Government under Section 42 of the Act empowering the Sub-Inspector of the Narcotics Department for making search and seizure under the Act. (13). 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 appellant under Section 8/18 of the Act is liable to be set aside on this ground alone. (14). Accordingly, the appeal is allowed; the conviction of the accused appellants underSection 8/18 of the Act and the sentence imposed them for the same are hereby set aside. The appellants be released forthwith, if not required in any other case.