Judgment :- J.B. Koshy, J. An important question of law was referred to the Division Bench by Justice M.R. Hariharan Nair disagreeing with the view taken by the Single Judge inSoumini v. State of Kerala (2001 (2) KLT 546 = 2001 (2) KLJ 37). According to the above decision, the notification empowering all the officers in the police department of and above the rank of S.I. etc. to exercise the power of entry, search-seizure and arrest without warrant or authorisation mentioned under S.42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 thereinafter referred to as NDPS Act) cannot be acted upon as the same is not placed before the Legislature and made it a Rule. S.42 of the NDPS Act (wrongly mentioned in the above judgment as rules) reads as follows: "42. S.42 of the NDPS Act (wrongly mentioned in the above judgment as rules) reads as follows: "42. Power of entry, search, seizure and arrest without warrant or authorisation: (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 the 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 peon, 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 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 resistance, 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 and any document or other article which he has reason to believe any furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (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 authorisation cannot be Obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-s.(1) or records grounds for this belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior." (underlining done by us only for emphasis) 2. The above section is very clear that the State Government has got power to issue general or special order authorising any officer in Police and other department superior in rank to a peon, sepoy or constable with power of entry, search, seizure and arrest without warrant or authorisation under S.42 of the Act. For that a rule need not be framed or proceedings for framing rules need not be accepted with. In exercise of the powers conferred under sub-s.(1) of Ss.42 and 67.of the NDPS Act, the following notification G.O. (MS) No.146/90/TD dated 22.10.1990 was published, empowering all officers of the Police department of and above the rank of S.I. of Police and all officers in the Excise Department of and above the rank of Excise Inspector to exercise the powers under Ss.42 and 67 of the NDPS Act: "In exercise of the powers conferred by subsection (1) of S.42 and S.67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) and in supersession of the order issued in G.O. (MS) No.137/85/TD dated the 7th November, 1985 and published as SRO No. 1516/85 in the Kerala Gazette Extraordinary No. 966 dated the 8th November, 1985, the Government of Kerala hereby empower all the officers in the Police Department of and above the rank of Sub Inspector of Police and all officers in the Excise Department of and above the rank of Excise Inspector to exercise the powers and to perform the duties specified in S.42 of the said Act within the area of their respective jurisdiction and also authorises the said officers to exercise the powers conferred upon them under S.67 of the said Act". 3. Government has got power under S.42(1) of the NDPS Act to authorise any officer as described in the Section by special or general order. The above quoted notification is a general order empowering all officers in the Police Department of and above the rank of Sub Inspector and in the Excise Department of and above the rank of Excise Inspector to conduct seizure etc. as authorised under S! 42 of the Act. The above quoted notification is a general order empowering all officers in the Police Department of and above the rank of Sub Inspector and in the Excise Department of and above the rank of Excise Inspector to conduct seizure etc. as authorised under S! 42 of the Act. Another reason stated by the learned judge in the above case is that the Officer who conducted the seizure in that case was not a station officer. No where in S.42 it is stated that power exercised under S.42 can be done by a Station Officer. We also hold that for empowering an officer to act under S.42, that Officer need not be in charge of a police station. 4. S.78 "deals with powers of the State Government to make rubles. S.78 reads as follows: 'Power of State Government to make rules: (1) Subject to the other provisions of this Act, the State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a) the conditions and the manner in which narcotic drugs and psychotropic substances shall be supplied for medical necessity to the addicts registered with the State Government and others under sub-s.(1) of S.71; (b) the establishment, appointment, maintenance, management, superintendence of centres established under sub-s.(1) of S.71 and appointment, training, powers and duties of persons employed in such centres; (c) any other matter which is to be, or may be, prescribed. (3) Every rule made by a State Government under this Act shall be laid, as soon as may be after it is made, before the Legislature of that State.'/ 5. For vesting an officer with powers under S.42 of the NDPS Act, no Rule need be framed. Even where Rules are necessary with regard to licenced premises similar' powers are given to officers of the Excise and Police Departments. For example R.72 of the Kerala N.D.P.S. Rules, 1985 authorises all officers above the rank of Excise Inspector and all officers of the Police Department of and above the rank of Sub Inspector can conduct inspection in the licenced premises. R.72 of the Kerala N.D.P.S. Rules reads as follows: 72. For example R.72 of the Kerala N.D.P.S. Rules, 1985 authorises all officers above the rank of Excise Inspector and all officers of the Police Department of and above the rank of Sub Inspector can conduct inspection in the licenced premises. R.72 of the Kerala N.D.P.S. Rules reads as follows: 72. Powers - All Officers of the Excise Department of and above the rank of Excise Inspector and all officers of the Police Department of and above the rank of Sub Inspector may (1) enter and inspect any place in which narcotic drugs other than prepared opium are kept for sale or for such other use as provided under these rules.... (2) (3) 4 to ease By special or general order State Government can empower an officer under S.42(1) of the NDPS Act. 6. Proviso to S, 42 is very clear. No external aid is necessary for interpretation. As we have discussed earlier, notification empowering all officers of the Police Department of and above the rank of Sub Inspector etc. to exercise powers under S.42 of the NDPS Act need not be placed before the Legislature and formalities for making rules under S.78 need not be complied with and such an officer need not be a station officer. Therefore, we overrule the judgment in Soumini v. State of Kerala (2001 (2) KLT 546). The Additional Sub Inspector of Police is having the rank of Sub Inspector of Police. We hold that under the notification, he is empowered to act under S.42 of the NDPS Act. 7. Now we may deal with the facts of the case. The prosecution case is that on 8.2.1997 the Additional Sub Inspector of Kasba Police Station on receipt of the reliable information that auto driver Sasi (the accused ) is engaged in the sale of brown sugar near Kalluthan Kadavu Colony at Kasba amsom. After intimating the official superior, the police party headed by the Additional Sub Inspector proceeded to the spot and at about 5.50 P.M. located the accused standing near an electric post on the southern road margin of Mooriyad-Jail Road Junction near KaUuthan Kadavu Colony. After intimating the official superior, the police party headed by the Additional Sub Inspector proceeded to the spot and at about 5.50 P.M. located the accused standing near an electric post on the southern road margin of Mooriyad-Jail Road Junction near KaUuthan Kadavu Colony. The accused was stopped by the S.I. and conveyed to him in the presence of independent witnesses that it is suspected that he is having in possession of brown sugar and he will have to be searched and that he is entitled to insist for the presence of a gazetted officer or a Magistrate and the same was communicated to him in writing. The accused declined the offer and consented to be searched ;by the police and he gave his consent in writing also. There upon the Sub Inspector on frisking the body of the accused, recovered a match box from the left hand side pocket of the shirt of the accused and on opening the match box it was found that the same contained 12 gilt paper packets. On opening the above packets it was found that the same contained brown sugar, a narcotic drug. The accused was arrested and the gilt paperpackets were weighed and was found to be having 2 gms. The entire quantity was taken into custody, packed and sealed along with the match box and shirt of the accused. The police party returned to the police station at about 7 P.M. along with the accused and the material objects. The matter was reported to the Circle Inspector of Police. Crime No. 51 of 1997 was registered under S.21 of the NDPS Act. The accused and the MOs were produced before the Court on 9.2.1997 itself. As per the order of the court on the next day he was produced and samples were sent by the Sessions Court for analysis. The prosecution examined PWs.1 to 5 and the brown sugar packets, seized shirt and match box were marked as MOs.1 to 3. Ext. P7 is the chemical examiner's report. The Additional Sub Inspector of Police who searched the body and seized the material was examined as PW1. PW2 was the Head Constable accompanied the Addl. Sub Inspector of Police. PWs. 3 and 4 are the witnesses to the seizure as well as mahazar. They are independent witnesses. PWS is the Circle Inspector of Police, Kasba, who conducted the investigation. 8. PW2 was the Head Constable accompanied the Addl. Sub Inspector of Police. PWs. 3 and 4 are the witnesses to the seizure as well as mahazar. They are independent witnesses. PWS is the Circle Inspector of Police, Kasba, who conducted the investigation. 8. Three grounds were pleaded before us. First ground is that the brown sugar along with the packets were found and weighed together. Weight was found to be 2 gms. The actual weight of brown sugar is not known. Notification No. S.O.827(E) published in Gazette of India Part II specified small quantity for the purpose of S.27 of the Act in relation to heroin or drug commonly known as brown sugar or smack as 250 ml.gms. or less. The brown sugar seized was in 12 packets. Before the trial court the accused had no case that the brown sugar seized is below 250 ml.gms. or less and, therefore, he will be entitled to the benefit of S.27 in the matter of sentence as only small quantity was seized. Considering the fact that the seized brown sugar is 2 gms. in 12 gilt paper packets and no plea was made before the authorities that the weight of seized brown sugar is below 250 ml.gms., we see no ground to interfere with the matter on this ground. Not even a suggestion was made to the prosecution witnesses regarding the same. If objection was raised at the investigation or trial stage, brown sugar could have been weighed and weight of paper could have been deducted. No such contention was raised before the trial court or in the appeal memorandum. 9. As the second point it was averred that evenlf the Sub Inspector of Police has got power to seize materials under S.42 of the NDPS Act, he has no power to keep the materials with him. Since it was kept by him till it was produced before Court, there is violation of Ss.52 and 55 of the NDPS Act as admittedly PW1, Sub Inspector, was not the police officer in charge of the police station. It was also submitted that there was delay in forwarding the accused and the articles to the police station and to the Court. S.52(3) of the NDPS Act reads as follows: "52. It was also submitted that there was delay in forwarding the accused and the articles to the police station and to the Court. S.52(3) of the NDPS Act reads as follows: "52. Disposal of persons arrested and articles seized: (1) (2) (3) Every person arrested and article seized under sub-s.(2) of S.41, S.42, S.43 or S.44 shall be forwarded without unnecessary delay to - (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under S.53. (4) II It is submitted that the materials were produced before the Court only on 10th and the Sub Inspector who seized the materials was not in charge of the station. In this connection S.55 was also relied on. S.55 reads as follows: "55. Police to take charge of articles seized and delivered - An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station." The F.I.R. shows that accused as well as the seized materials were brought to the police station immediately and entrusted with the Circle Inspector of Police (who was in charge of the station) and a case was registered on the same day. Therefore, there is no violation of S.52 of the NDPS Act. 10. Ext. P6 is the forwarding note issued by the Circle Inspector of Police forwarding the accused as well as the seized materials to the Magistrate. Apart from the above, the remark report also shows that the accused as well as the seized materials were produced on 9.2.1997 itself without any delay. Materials were seized only after 5.30 on 8.2.1997. As ordered by the Sessions Court, they were kept with the Police and it was again produced on 10.2.1997, the next day. So, there was no delay. Materials were seized only after 5.30 on 8.2.1997. As ordered by the Sessions Court, they were kept with the Police and it was again produced on 10.2.1997, the next day. So, there was no delay. The officer in charge of the police station shall take charge of and keep in safe custody al l articles seized does not mean that he kept it with person the above articles. As explained in Joseph v. State of Kerala (1995 (1) KLT 545), under S.55, an officer in charge of a police station to whom articles seized under this Act within the local area of that police station are taken for delivery shall allow any officer who accompanied such articles to affix the seal. The Calcutta High Court in T. Paul Kuki v. State of West Bengal ((1993) 3 Crimes 660 (Cal) (DB)) held that provisions of S.55 are merely directory and not mandatory and the searching officer has an option of depositing the seized articles in the local police station. Apart from the above, since the accused as well as the seized articles were produced in the police station immediately after seizure and also before court on the next day itself and the seized articles were brought to the police station, sealed and a crime was registered on the same day of seizure, no prejudice is caused to the accused. There is no delay and there is no violation of S.52 or 55 of the NDPS Act. In this connection we also refer to the decision of the Supreme Court in State of Punjab v. Balbir Singh (AIR 1994 SC 1872). Here there is no contention that mandates of S.57 of the NDPS Act are violated and actually it was complied with. There is no undue and unexplained delay and no prejudice is caused to the accused by the proceedings adopted and there is substantial compliance of the Section in all respects. (See Joseph Fernandez v. State of Goa (1996 Crl.L.J. 822 bombay). 11. Finally it was argued that evidence was not properly appreciated and punishment imposed is very hard. Evidence adduced will very clearly shows that the articles were seized from the person of the accused. Two independent witness attested the seizure and signed the mahazar. They were also examined in this case. 11. Finally it was argued that evidence was not properly appreciated and punishment imposed is very hard. Evidence adduced will very clearly shows that the articles were seized from the person of the accused. Two independent witness attested the seizure and signed the mahazar. They were also examined in this case. Accused person himself in writing informed that he can be searched by PW1 after informing him his rights regarding search and seizure. Only minimum sentence was awarded by the court below. We see no ground to interfere with the conviction and sentence passed by the lower court. The Criminal Appeal is, therefore, dismissed. \