Judgment :- The prayer of the writ petitioner is to forbear the second respondent, Forest Ranger from conducting any investigation in terms of the case registered by him in OR.No.59/2005 dated 05.05.2005. 2. According to the petitioner, there are three civil cases pending between him and the Forest Department in the District Munsif Court at Dindigul. They were O.S.No.38/2003, O.S.No.309/2003 and O.S.No.399/2003. The petitioner claims that he had resisted the illegal felling of trees from the reserved forest. With a view to retaliate the petitioners move, the second respondent registered a case under Section 21(d)(g) of the Tamil Nadu Forest Act, 1882 as well as under Section 20(i) (a) and (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short NDPS Act), in OR.No.59/2005. It is contended that the second respondent has no power to deal with NDPS Act, as he was not authorized under Section 42 of the said Act. But on a remand requisition submitted by the second respondent, the Judicial Magistrate Court No.III, Dindigul remanded him to judicial custody on 27.04.2005. 3. The full particulars of the arrest was not given to the petitioner and he was desisted from putting forth all circumstances before the Judicial Magistrate, thereby depriving him the statutory and constitutional protection ensured under law. The fact that the petitioner was brought by a person who was not empowered under the NDPS Act before the Judicial Magistrate was improper and illegal. 4. The First Information Report which is the H Form under NDPS Act was prepared and filled up by the first respondent i.e., the Forest Guard at Sirumalai Range in Malayur Beat. It was mentioned that 1.500 kgs. of ganja along with some other items including cash of Rs.1,630/- was seized from the petitioner. It is contended by the petitioner that the seizure of ganja which is a narcotic substance cannot be dealt with under the Forest Act and has to be dealt with only under the NDPS Act. 5. The petitioner stated that the preparation of H form as well as sending the report seeking for a requisition from the Judicial Magistrate were all done illegally and contrary to the provisions of the NDPS Act. 5. The petitioner stated that the preparation of H form as well as sending the report seeking for a requisition from the Judicial Magistrate were all done illegally and contrary to the provisions of the NDPS Act. Likewise, it is contended that since the process of initiation of prosecution against the petitioner was contrary to the NDPS Act as well as the provisions of the Criminal Procedure Code, the proceedings must be quashed. 6. A counter-affidavit dated 24.07.2007 was filed by the Forest Ranger, Sirumalai Range. It was contended that the writ petition was not maintainable and there was no enmity between them and the petitioner. By virtue of G.O.Ms.Nos.161,162 and 163 Prohibition Excise (VII) Department, dated 12.08.1992, a Forest Officer is empowered to perform duties under the provisions of Section 42 of the said Act. The fact that the petitioner was in his possession of ganja was admitted and since the offence was committed within the reserved forest area, they were empowered to deal with the case. 7. It is therefore necessary to extract the following passage found in paras-7 and 8 from the counter-affidavit. "para-7:- I submit that the remand report had been prepared by the Forest Ranger and remanded through his subordinates is legally correct. The Ranger got powers as per the Tamil Nadu Forest Act 1882 and NDPS Act 1985. para-8:- As per the Section 247 of the Forest Code, the Forest Guard, i.e. the first respondent in this case has empowered to prepare offence report i.e. FIR under the basis of H-Namuna. He got powers to arrest Forest ofences including the NDPS act without warrant in the Forest offences those who done the Forest offence with imprisonment for one month or upwards in the Forest cases as per the Section 51 of Tamil Nadu Forest Act 1882. There is no violation of law. Further the senior officers i.e. second respondent and section officer i.e. Forester also present at the time of alleged seizure. The first respondent had done his duty as per the direction given by the second respondent and section officer in this spot. Here in this case P.W.1 and P.W.2 are the witnesses of this case. All the action taken by the second respondent in this spot through his subordinates." 8. The first respondent had done his duty as per the direction given by the second respondent and section officer in this spot. Here in this case P.W.1 and P.W.2 are the witnesses of this case. All the action taken by the second respondent in this spot through his subordinates." 8. G.O.Ms.No.161 Prohibition Excise (VII) Department dated 12.08.1992 delegates the power under Section 42(1) to various officers and the following portion from the G.O. is extracted here under: "Under Sub-section (1) of section 42 and Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985), the Governor of Tamil Nadu hereby empowers and respectively authorises the officers specified below for the purposes of the said Sections 42 and 67 of the said Act. Officers: 1. Police Officer not below the rank of a Head Constable in the State Police Department including Special Units. 2. Revenue Officer not below the rank of a Revenue Inspector in the State Revenue Department. 3. Excise Officer not below the rank of an Excise Inspector in the State Excise Department. 4. Forest Officer not below the rank of a Forester in the State Forest Department." (Emphasis added) Therefore, on the strength of the above G.O., it is contended that the Forest Ranger is above the Forester and hence the proceedings initiated was legally valid. 9. Heard the arguments of Mr.T.Selvam, learned counsel for the petitioner and Mr.S.Ramasamy, learned Additional Advocate General assisted by Mrs.V.Chellammal, learned Special Government Pleader and have perused the records. 10. The learned Additional Advocate General contended that the offence is a serious offence. In the present case, even though the Forest Guard prepared the H Form, the Form-95 was prepared only by the Forest Ranger. But the copy of Form H found in the typed-set and sent to the Court dated 27.04.2005 contains the signature of the Forest Guard only. That is not disputed by the respondents. 11. Even the averment found in para-8 of the counter-affidavit extracted above mentions about the Forest Ranger and Forester being present at the time of alleged seizure and that the Forest Guard merely carried out the directions issued by his Superiors. 12. That is not disputed by the respondents. 11. Even the averment found in para-8 of the counter-affidavit extracted above mentions about the Forest Ranger and Forester being present at the time of alleged seizure and that the Forest Guard merely carried out the directions issued by his Superiors. 12. By placing reliance upon the judgment of the Supreme Court in Babubhai Odhavji Patel and others v. State of Gujarat reported in 2006(1)Supreme Court Cases (Cri) 73, the learned Additional Advocate General submitted that in that case the Supreme Court held that all provisions are not mandatory in character but at time they can be directory. For this purpose, the emphasis was made on para-8 of the said Judgment, which reads as follows: "The learned counsel further contended that the seized articles were no kept in proper custody and that there was violation of Sections 52,55 and 57 of the NDPS ACt. He placed reliance on Valsala v. State of Kerala. We do not think that there is much force in this contention. This Court in Gurbax Singh v. State of Haryana held that these provisions are not mandatory provisions and they are only directory. In the present case, we do not find any serious violation of these provisions. The prosecution adduced evidence to prove that these provisions have been substantially complied with and the Sessions Judge discussed these matters in detail and accepted the prosecution case." (Emphasis added) 13. But however the Supreme Court in Dilip and another vs. State of M.P. reported in 2007(1) Supreme Court Cases 450 it was observed in para-6 which is as follows: "It is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided therefor in terms of Sections 41,42 and 50 of the NDPS Act should be complied with." 14. In the same decision, the Supreme Court also referred the judgment of the earlier judgment in State of Punjab v. Balbir Singh reported in 1994(3) SCC 299 . In that judgment, the Supreme Court dealt with extensively the scope of Sections 42 and 50 of the NDPS Act. It is necessary to refer to the following passage found in para-25 of the judgment: "25. The questions considered above arise frequently before the trial courts. In that judgment, the Supreme Court dealt with extensively the scope of Sections 42 and 50 of the NDPS Act. It is necessary to refer to the following passage found in para-25 of the judgment: "25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences 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 requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic 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. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 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 anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial." (Emphasis added) 15. Fortifying the same judgment, the Supreme Court in paragraph-25 (5) had stated as follows: "On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the Magistrate, would amount to non-compliance with Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact." (Emphasis added) 16. Therefore, it is clear that the safeguard given under Sections 42(1) and 50 are mandatory. The present case in so far as the seizure was made by the Forest Guard to whom the power has not been delegated under Section 42(1) and he had also prepared the H- Form shows the infringement of the provisions of the NDPS Act. Therefore, it is clear that the safeguard given under Sections 42(1) and 50 are mandatory. The present case in so far as the seizure was made by the Forest Guard to whom the power has not been delegated under Section 42(1) and he had also prepared the H- Form shows the infringement of the provisions of the NDPS Act. The contentions of the petitioner are that he was disabled from defending himself before the Magistrate to whom requisition was given and he was also remanded for custody were all glaring violations of the provisions of the NDPS Act and merits acceptance by this Court. 17. Under such circumstances, the recovery of narcotic substance and requisition made by the respondents in OR.No.59/2005 will stand quashed. This Writ Petition is ordered accordingly. However, there will be no order as to costs. Consequently, connected M.P.No.1 of 2007 is closed.