JUDGMENT 1. - Challenge in this appeal is to the judgment dated 8th June 1990 whereby the learned Sessions Judge, Jhalawar, acquitted the accused respondent, Chothmal in the offence under Section 8 read with Section 18 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as 'Act 1985'). 2. The nub of the appellant's story is : That at about 1.00 a.m. in the night of 3rd March, 1988 P.W. 1 Kamru Juma Khan went for patrolling duty along with P.W. 6 Ram Narain S.H.O. P.S. Bhawanimandi, in the city. During patrolling, when they reached at Railway Station Tiraha, Bhawanimandi, they found a person moving towards Railway Station in a manner arousing suspicion. It is alleged that they stopped that person and on interrogation, he identified himself to be Choth Mal son of Champa Lal Meena, resident of Bhawanimandi. Having found this person in suspicious circumstance, P.W. 1 Kamru Juma Khan took his search and found two canvas bags tied inside his underwear (costume). The police party minutely observed both the canvas bags, opened them and found opium lying therein. Shri Khan took two samples each of 30 grams opium from each packet and sealed them properly. He recovered two bags of opium vide Memo Ex.P-1, prepared site plan Ex.P-2, and completed the proceedings with regard to search and seizure of opium. P.W. 6 Ram Narain lodged First Information Report Ex.P-7 and commenced investigation. The Investigating Officer recorded statements of the witnesses under Section 161 of Cr.PC., sent the samples for chemical examination to F.S.L. and after usual investigation sent the accused for trial to the Competent Court. 3. The accused, Chothmal, was indicted for the offence under Section 8 read with Section 18 of the Act 1985, who pleaded not guilty and claimed trial. The prosecution has examined only 6 witnesses to prove its case. In his explanation under Section 313 of Cr.P.C., the accused claimed innocence. On completion of trial, the Court acquitted the accused-respondent as indicated here in above. 4. Heard learned Public Prosecutor appearing for the State and with his assistance scanned the material available on record. 5. The prosecution has examined only 6 witnesses to prove its case. In his explanation under Section 313 of Cr.P.C., the accused claimed innocence. On completion of trial, the Court acquitted the accused-respondent as indicated here in above. 4. Heard learned Public Prosecutor appearing for the State and with his assistance scanned the material available on record. 5. The learned Public Prosecutor has assailed the impugned judgment mainly on this ground that the learned trial Court has not properly appreciated the evidence of the prosecution witnesses and merely on the ground of there being minor contradictions in the statements of prosecution witnesses, acquitted the accused-respondent. Learned Public Prosecutor contended that the recovery of two bags each containing 2 Kg. of opium is proved beyond reasonable doubt from the evidence of P.W. 1 Kamru Juma Khan, P.W. 5 Ramesh Chandra Sharma and P.W. 6 Ram Narain. Their evidence does (not ?) stand to be jettisoned merely for the reason that these witnesses belong to police department. The learned trial court has committed an error in acquitting the accused respondent, as such, impugned judgment be set aside and accused respondent should be convicted and punished i accordingly. 6. Fact situation emerging from material may be summarised thus : (i) Power of search, seizure and arrest in the instant appeal has been exercised by an unauthorized officer P.W. 1 Kamru Juma Khan, A.S.I. of Police Station Bhawanimandi. (ii) This power was exercised in the presence of S.H.O. Police Station Bhawanimandi. (iii) It is alleged that accused had tied two canvas bags near his abdomen inside the undergarment. Each bag contained 2 Kg. opium. (iv) P.W. 6 Ram Narayan, S.H.O. Police Station, Bhawanimandi lodged the F.I.R. Ex.P-7 and P.W. 1 Kamru Juma Khan conducted the investigation who was junior in rank to the officer who lodged the report. 7. Having reflected over the submissions advanced by both the parties and ruminated over the statements of both P.W. 1 Kamru Juma Khan and P.W. 6 Ram Narain, it is observed that P.W. 1 Kamru Juma Khan was not competent to exercise the powers of search, seizure and arrest under Section 42 of the Act 1985 as also the Notification No. S.O. 115 dated October 16, 1986 issued therein. Section 42 Notification No. S.O. 115 dated October 16, 1 1986 envisages as underSection 42 : S.O. 115 : In exercise of powers conferred by section 42 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (Act No. 61 of 1986 the State Government hereby authorises all 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 Inspectors or S.H.O. of the Police Station concerned." 8. Thus, Notification authorised all the inspectors of police posted as Station House Officers to exercise powers mentioned in Section 42 of Act of 1985. Proviso to this notification permits the exercise of these powers by police officer other than police inspector of the area concerned but he is required to hand over the person arrested and articles seized to the concerned police inspector or SHO of the police station concerned. In the instant appeal, P.W. 1 Kamru Juma Khan, A.S.I., went on patrolling alongwith S.H.O. of police station Bhawanimandi but the power to search, seizure and arrest under Section 42 of the Act has been exercised by an incompetent and unauthorised officer of the rank of A.S.I. of Police Station, Bhawanimandi. It has been held by the Hon'ble Supreme Court in a catena of judgments that the provisions of Section 42 of Act of 1985 are mandatory in nature and the non-compliance of these provisions causes prejudice to the accused, resulting in failure of justice or mis-carriage of justice. 9. Now turning to the compliance of the provisions of Section 50 of the Act 1985, it is noticed that no notice as contemplated under Section 50 was given by P.W. 1 Kamru Juma Khan to accused before taking his search. 10. In the case of Beckodan Rahim v. State of Kerala, 2002(1) WLC (SC) Cri. 515 : 2002(4) SCC 229 , the Hon'ble, Apex Court has held that the safeguards mentioned in Section 50 are intended to serve a dual purpose to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. 515 : 2002(4) SCC 229 , the Hon'ble, Apex Court has held that the safeguards mentioned in Section 50 are intended to serve a dual purpose to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. Section 50 has been introduced with the obvious intent to avoid any harm to innocent persons and to avoid raising of allegation of planting or fabrication by prosecuting authorities. It is now well settled by the catena of judgments of the Hon'ble Supreme Court as also this Court, that the provisions of Section 50 are mandatory in nature and the empowering authority is required to make strict compliance thereof. 11. In the instant appeal, firstly, power of search and seizure has been exercised by the unauthorised and incompetent police officer and, secondly, no compliance of the mandatory provisions of Section 50 of the Act 1985 has been made by him, which undeniably and undoubtedly vitiates the trial. 12. The learned trial court in its detailed judgment has very tangibly observed that the Seizure Officer has not made the compliance of Section 55 and 57 of the Act 1985 also. From the perusal of the relevant material: available on record, it is found that the police officer has acted very negligently and carelessly and flouted the mandatory provisions of the Act of 1985. Surprisingly, the accused was nabbed by the police and 4 Kg. opium is alleged to have been recovered from his possession but on account of his negligence, bad investigation and non-compliance of the mandatory, provisions of Act 1985 by the police officer, the accused respondent has been acquitted in this case. The learned trial Court has critically analysed and properly appreciated the evidence of prosecution witnesses in great detail and has considered all the possible aspects required in such cases. The impugned judgment of the learned Trial Court is cogent, and well merited. It suffers from no infirmity and I find myself in unison with the finding of acquittal arrived at by the learned trial court and thus impugned judgment calls for no intervention. 13. For these reasons, the State appeal being devoid of merit stands dismissed. The accused-respondent is on bail. He need not surrender and his bail bonds stand discharged.State Appeal Dismissed. *******