JUDGMENT : 1. - The appellant was accused on the file of learned Special Judge NDPS Cases Chittorgarh bearing Sessions Case No. 22/01. The learned Special Judge vide judgment dated August 7, 2002 convicted and sentenced the appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') to undergo rigorous imprisonment for ten years and fine of Rs. one lac, in default to further suffer rigorous imprisonment for one year. Meaningful question arises for consideration in the instant appeal is as to whether Inspector or Sub- Inspector of Police who is not posted as Station House Officer is empowered to exercise the power under Section 43 of the Narcotic Drugs And Psychotropic Substances Act. 2. Brief resume of the case is that Rameshwar Prasad (PW.9) who as posted as Station House Officer at Police Station Chittorgarh on April 4, 2001 had to attend a meeting summoned by the Superintendent of Police in connection with law and order problem. Around 5.30 PM Rameshwar Prasad handed over charge to Praveen Vyas, Sub-Inspector (PW.2) and proceeded to attend the meeting. Entry was incorporated in Rajnamcha Ex.P-24 in this regard. Praveen Vyas thereafter on receiving secret information about illegal possession of opium went to the spot where the appellant was allegedly found carrying opium weighing 6 kg. (two packets of 3 kg. each). Recovery memo (Ex.P-3 of opium and motor cycle was drawn at 8.00 PM. The appellant was arrested and on completion of investigation charge-sheet was filed. Charge under Section 8/18 Narcotic Drugs And Psychotropic Substances Act was framed. The appellant denied the charge and claimed trial. The prosecution in support of its case examined as many as eleven witnesses. In the explanation under Section 313 Criminal Procedure Code the appellant claimed innocence. Two witnesses were examined (by) the defence. The learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated above. 3. The only contention of Mr. M.L. Garg, learned counsel for the appellant is that since Praveen Vyas Sub-Inspector was not posted as SHO, he could not exercise the powers under Section 42 of Narcotic Drugs And Psychotropic Substances Act. Thus the whole proceedings (are) vitiated and the appellant deserves to be acquitted. My attention has been drawn to Notification No. F1(3)FD/ED/85-1 dated October 16, 1986 which reads thus : "S.O. 115. Thus the whole proceedings (are) vitiated and the appellant deserves to be acquitted. My attention has been drawn to Notification No. F1(3)FD/ED/85-1 dated October 16, 1986 which reads thus : "S.O. 115. In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 the State Government hereby authorise all Inspectors of Police, and Sub-Inspectors of Police posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with immediate effect : Provided that when power is exercised by Police Officer other than Police Inspector of the area concerned, such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or SHO of the Police Station concerned." 4. Per contra, Mr. K.R. Bishnoi, learned Public Prosecutor supported the impugned judgment and canvassed that the objection raised on behalf of the appellant is devoid of merit since the appellant was found possessing opium illegally. 5. Before proceeding further, I intend to consider the provisions of Section 42 of the Narcotic Drugs And Psychotropic Substances Act, which reads as under:- "Section 42. K.R. Bishnoi, learned Public Prosecutor supported the impugned judgment and canvassed that the objection raised on behalf of the appellant is devoid of merit since the appellant was found possessing opium illegally. 5. Before proceeding further, I intend to consider the provisions of Section 42 of the Narcotic Drugs And Psychotropic Substances Act, which reads as under:- "Section 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 including para-military forces or armed forces as it empowered in this behalf by general of 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 persons knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act 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 may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; 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 this Act : 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-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." 6. A look at the aforesaid provisions goes to show that Section 42 of Narcotic Drugs And Psychotropic Substances Act empowers the officers of the specified department to carry out search, seizure and arrest in any public places in respect of any narcotic drug or psychotropics substances. Powers under Section 42 can be exercised if the convened (concerned ?) officer has reason to believe that the offence relating to narcotic drugs or psychotropics substances has been committed. As already noticed the notification dated October 16, 1986 empowers only those Inspectors or Sub-Inspectors of Police to exercise the powers under Section 42 of Narcotic Drugs And Psychotropic Substances Act who are posted as Station House Officers. 7. In Sajjan Abraham v. State of Kerala, (2001)6 SCC 692 , their Lordships of Supreme Court while considering the provisions of Section 42 of Narcotic Drugs And Psychotropic Substances Act indicated that the said section is mandatory and strict compliance is required. 8. In Chhunna @ Mehtab v. State of M.P., (2002) 9 SCC 363 , the Apex Court indicated that non-compliance of the provisions of Section 42 of Narcotic Drugs And Psychotropic Substances Act vitiates the trial. 9. The object of Narcotic Drugs And Psychotropic Substances Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. 10. As already noticed Rameshwar Prasad (PW.9) was posted as SHO and while he proceeded to attend the meeting the charge of police station was handed over temporarily to Praveen Vyas, Sub-Inspector, (PW.2). Rameshwar Prasad came back to the police station 7.30 PM, as is evident from the cross-examination of Praveen Vyas, who deposed that as per report incorporated in rojnamcha No. 168 Rameshwar Prasad came back to Police Station at 7.30 PM. 11. Rameshwar Prasad came back to the police station 7.30 PM, as is evident from the cross-examination of Praveen Vyas, who deposed that as per report incorporated in rojnamcha No. 168 Rameshwar Prasad came back to Police Station at 7.30 PM. 11. Thus the facts situation that emerges in the case is as under:- (i) Praveen Vyas (PW.2) was not posted as SHO in the Police Station and he was temporarily holding the charge of Police Station Chittorgarh from 5.30 PM till 7.30 PM on April 4, 2001. (ii) Recovery memo of opium and motor cycle was drawn by Praveen Vyas at 8.00 PM on April 4, 2001 after the charge of the Police Station Chittorgarh was assumed by Rameshwar Prasad SHO. 12. It hardly need be emphasised that Rameshwar Prasad, SHO, Police Station Chittorgarh was alone empowered to exercise powers under Section 42. While enacting Section 42 of Narcotic Drugs And Psychotropic Substances Act the Legislature put a complete ban on the authorities beyond one mentioned in the Section to carry out the functions under the Act. The legislature has clearly empowered the persons mentioned therein or who are authorised to do so by the notification. 13. Reference may be made to Nand Lal v. The State of Rajasthan, 1987(3) Crimes 629 , wherein in a similar situation this court observed as under:- (Para 17) "I have carefully gone through the cases cited above and have no hesitation in reaching the conclusion that for launching the prosecution or for initiating the proceedings the authority doing so must have a clear and unambiguous power. In criminal cases while enacting such provision the legislature puts a complete ban on the authorities beyond one mentioned in the section to carry out the functions under the Act. In Section 42 of the Act the legislature has clearly empowered the persons mentioned therein or who are authorised to do so by notification. The legislature intended that a peon, sepoy or constable should in no case be empowered to enter search or seize or arrest a person without warrant. In Section 42 of the Act the legislature has clearly empowered the persons mentioned therein or who are authorised to do so by notification. The legislature intended that a peon, sepoy or constable should in no case be empowered to enter search or seize or arrest a person without warrant. It also did not empower in the Act even the police officers unless there was a notification in that behalf and as quoted by me above the officers of the police department had been empowered only by notification dated October 16, 1986 and thereto the Government authorised the Inspectors of Police and Sub-Inspectors of Police who too were posted as Station House Officers a person accused of a crime particularly like the one where the legislature provides a minimum sentence of ten years and a fine of Rs. 1,00,000.00, it is essential that the intention of the legislature must be carried out in letter and spirit, the accused has right to expect a fair investigation and a fair trial keeping in view the basic concept that justice should not only be done but it should appear to have been done, has facing a trial by itself as an ordinal. A Head Constable is also a Constable and is certainly not a Sub-Inspector or Inspector of Police and in the instant case PW.1 Amanulla Khan was admittedly not Station House Officer of GRP Police Station, Ajmer. I have also quoted his statement in extenso where he was admitted that he had gone to the police station after ten minutes of the search of which he had no jurisdiction express or implied. Even the SHO PW.6 Ram Chandra had no jurisdiction vested in him on November 21, 1985 and as such very foundation of the case is without proper authority of law. I need not go into other points raised as this alone is sufficient to dispose of this case." (Underlining is mine) 14. While dealing with a case under Suppression of Immoral Traffic Act, their Lordships of the Supreme Court in Delhi Administration v. Ram Singh ( AIR 1962 SC 63 ) indicated that police officers not specially appointed as Police Officer cannot investigate the offences under Suppression of Immoral Traffic Act, even though they are cognizable offences. 15. While dealing with a case under Suppression of Immoral Traffic Act, their Lordships of the Supreme Court in Delhi Administration v. Ram Singh ( AIR 1962 SC 63 ) indicated that police officers not specially appointed as Police Officer cannot investigate the offences under Suppression of Immoral Traffic Act, even though they are cognizable offences. 15. I need not go into other points involved in the case as in my opinion the point raised alone is sufficient for disposal of the case. 16. For these reasons, I allow the appeal and set aside the impugned judgment dated August 7, 2002. I acquit the appellant of the charge under Section 8/18 of the Narcotic Drugs And Psychotropic Substances Act. The appellant, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.Appeal allowed. *******