JUDGMENT & ORDER : This appeal is directed against the judgment and order dated 21.12.2011 passed by the Special Court (ND & PS) Manipur in Special Trial (C) Case No.49 of 2008 whereby and whereunder the Special Court having found the appellant guilty of the charge convicted him for the offence punishable u/s 20(c) of the ND & PLS Act,1985 and sentenced him to undergo Rigorous imprisonment for a term of 10 years and to pay a fine of Rs. 1 lakh, with a default clause to further undergo R.I. for 2 months on account of non payment of fine amount. 2. The case of the prosecution is that on 9.2.2008 one Smt. N. (PW5) posted as Inspector of CPF Pallel, received an information at about 7:30 AM from an informer to the effect that someone would be carrying ‘Methamphetamine tablet’ numbering about 500-1000 from Moreh to Pallel Bazar. Such information was reduced in writing (Ext.P/6) by PW 5 and sent it under covering letter (Ext. p/5) to James Guite (PW 3) Superintendent, Customs Division Imphal. On receiving such information, the Superintendent, James Guite immediately informed him (PW 5) to form a team consisting of him (PW 5) Inspector M.A. Saha (PW 2) Sepoy R.K. Suresh Singh (PW 4), Hav. Y. Ibochouba Singh, (not examined), Sepoy Th. Dhaneshwor Singh (PW 6). Accordingly, it was constituted. They all proceeded towards Pallel Customs Check Post. At about 9 AM one Maruti Van bearing Regn. No. MN 01-K/3946 was seen coming from Moreh to Pallel bazaar. When it came nearer to them, they got the vehicle stopped at the Check Post and found 5 persons boarding on it. PW 5 introduced themselves to be the customs personnel of Pallel and asked occupants of the Maruti Van to allow them to search their bodies and belonging in presence of witnesses. Thereupon, two witnesses namely Millan Haokip (not examined) and H. Arun Singh (PW 7) were called. Thereafter, PW 5 asked the accused to give his option statement (P.12) as to whether he is willing to be searched in presence of the Magistrate or Gazetted Officer to which the accused gave his option to check his body in presence of them as well as witnesses. Upon search being made of the body of the accused nothing was found in his possession. Upon search being made of the body of the accused nothing was found in his possession. However, PW 5 and also the other members of the raiding party still had suspicion left with them that the accused must have been carrying some contraband articles and therefore the accused was brought before Superintendent, James Guite (PW 3) where witnesses and other members of the raiding party also came. During search of the body of the accused, one polythene packet was recovered which had been hidden by the accused under his undergarment. On opening of it, it was found that the said Polythene packet is containing 4 small polythene pouches containing 600 tablets of ‘Methamphetamine’ which was seized under inventory of goods (Ext.P/1). Upon weighing, weight of 600 table was found to be 200 gm. Accordingly, weighment chart Ext. P/11 was prepared in front of the members of raiding party and the witnesses and out of it two samples each of 5 tablet were prepared and were marked as S1, P1 (original) S1, P1 (duplicate) respectively. Rest of the tablets were packed separately. Each of the packets was sealed. Thereafter, the statement of the accused was recorded by R.K. Suresh Singh, PW 4 in presence of the witnesses and also in presence of PWs- 3 and 5 wherein the accused admitted possessing the tablets. After the formalities were completed the Superintendent, James Guite (PW3) submitted detailed seizure report (Ext.p/9) to the Asstt. Commissioner, Customs Division Imphal. Thereupon, PW-3 forwarded samples to the Dy. Director, Forensic Science, Guwahati. Upon examination, the report (Ext.P/10) was submitted opining therein that samples sent are ‘Methamphetamine’ tablets. 3. Upon completion of the investigation, PW 5 submitted complaint before the Court upon which cognizance of the offence was taken. When the trial was taken up, the prosecution in order to prove its case, examined as many as 7 witnesses. Of them PW 5 is the complainant who, in his evidence, narrated about the incident as has been stated above. Other Members of the raiding party namely Thounaojam Dhaneshwar Singh (PW.6), PW 4 R.K. Suresh Singh, PW 2 M.A. Saha supported the case of the prosecution as testified by PW.5. PW 7 Heisnam Arun, the independent witness, also supported the factum of recovery of the said contraband tablets. Other Members of the raiding party namely Thounaojam Dhaneshwar Singh (PW.6), PW 4 R.K. Suresh Singh, PW 2 M.A. Saha supported the case of the prosecution as testified by PW.5. PW 7 Heisnam Arun, the independent witness, also supported the factum of recovery of the said contraband tablets. PW 1, V. Hangjo, the Superintendent, Disposal Customs, has deposed that after seizure of these tablets, those were given to him in 3 sealed packets for safe custody which he, after making entry of it into the Register, kept in the custody. 4. After the closure of the prosecution case when incriminating evidences appearing against the appellant were put that upon option being given to him to be searched in presence of a Magistrate of Gazetted Officer, he opted to be searched in presence of them and upon search being made ‘Methamphetamine’ tablets were recovered. The accused admitted it. However, he took a plea that one Jangpao had handed over the said tablets at Pallel Gate which was seized from his possession by the customs officials. The trial court, having found the compliance of the provisions of Sections 41, 42 and 50 of the ND & PS Act being there and also the evidence of the witnesses worth reliable, recorded the order of conviction and sentence as aforesaid. 5. Being aggrieved with the judgment of conviction and order of sentence, this appeal has been preferred. 6. Mr. M.I. Sharma, learned counsel appearing for the appellant submits that PW 5, Smt. N. Bhattacharjee, who claimed to have recovered the tablet on effecting search on the body of the deceased had not been authorised either by the State Govt. or central Govt. to make search, seizure and to arrest and thereby entire prosecution case gets vitiated even if search has been effected in presence of PW-3, a Gazetted Officer. In support of his submission learned counsel has referred to decisions rendered in case of S.S. Mohd Quadri vs. State of Kerala reported in 2000(7) Supreme 730; Karnail Singh Vs State of Haryana reported in 2009(8) SCC 539 and in case of Dilip & Anr. Vs. State of Madhya Pradesh 2007(1) SCC 450 . Thus, it was submitted that there has been absolutely no compliance of section 42 of the ND & PS Act. Vs. State of Madhya Pradesh 2007(1) SCC 450 . Thus, it was submitted that there has been absolutely no compliance of section 42 of the ND & PS Act. Further, submission which was made is that there has also been no compliance of Section 50 of ND & PS Act as it is the stand of the prosecution that it gave option to the accused for being searched in presence of the Magistrate or Gazetted Officer but the requirement of law is that Seizing authority should have made aware the accused of the rights of being searched in presence of Magistrate or Gazetted Officer and thereby there has also been no compliance of Section 50 of the ND & PS Act. In this regard, it was submitted that even if the search and seizure was made in presence of gazetted officer, it will not save the prosecution case from being vitiated. On this ground, learned counsel has referred to a case rendered in Ajay Kr. Vs. State of Jharkhand 2000(7) Supreme 730. Under the circumstances it was submitted that judgment of conviction and order of sentence is fit to be set aside. 7. As against this, learned counsel appearing for the department submits that the Inspector, PW-5, upon getting information of some persons coming towards Pallel Bazar with contraband tablet, reduced it in writing and communicated it to his superior, i.e. Superintendent, PW-3 who authorised immediately PW-5 to constitute a team to lay raid and to arrest the accused and thereby when the accused was apprehended, option was given in writing as to whether he wanted to be searched before a Magistrate or a Gazetted Officer. He opted to be searched at the spot. In spite of that he was taken by PW-5 and other members of raiding party before the Superintendent, PW-3 where search was made in presence of independent witnesses whereby the contraband tablets were recovered and thereby the authority made search and seizure absolutely in accordance with the provisions as contained in Section 41, 42 and 50 of the ND & PS Act and under the circumstances when the case of the prosecution has consistently been supported by the witnesses who were members of the raiding party including the independent witnesses, PW-7. The trial court was absolutely justified in recording the order of conviction and sentence which needs no interference by this Court. 8. The trial court was absolutely justified in recording the order of conviction and sentence which needs no interference by this Court. 8. Having heard the learned counsel appearing for the parties and on perusal of the records, I do find that it is the case of the prosecution that when PW-5, Inspector of the Customs did receive an information regarding a person coming towards Pallel with contraband medicine, he reduced it in writing and informed about such information to the Superintendent, PW-3 and thereafter PW-5 upon being authorised by him (PW-3) effected the seizure as has been stated above. The stand which has been taken by the defence is that PW-5, in terms of the provisions as contained in Section 42, has never been empowered by the State Govt. or the Central Government to make search and seizure and therefore search and seizure and also the arrest being illegal, entire case vitiates whereas the stand which has been taken by the Deptt. of Customs is that PW-5 did exercise powers in terms of the provisions as contained in Section 41 (2) of the Act. In order to resolve the controversy, the provisions of the Act needs to be taken notice of: "41. Power to issue warrant and authorisation, - (1) A Metropolitan Magistrate of a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe 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. (2) Any such officer of gazzetted rank of the departments of central excise, narcotics, customs, revenue intelligence of 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 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 in writing that any person has committed an offence punishable under chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a person, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place. (3) The Officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42. 42. (3) The Officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to 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 may 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 authorization 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 sun set and sun rise 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 forthwith send a copy thereof to his immediate official superior." 9. Sub-section (1) of Section 41 of the NDPS Act enables a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class who is especially empowered by the State Government in this behalf to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV of the said Act. Such a warrant may also be issued for the search of any building, conveyance or place in which he has reason to believe 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. Arrest or search under a warrant issued in this provision can be made at any time whether by day or by night. 10. Arrest or search under a warrant issued in this provision can be made at any time whether by day or by night. 10. Sub-section (2) of Section 41 of the NDPS Act entitles any officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force who has been empowered in that behalf by general or special order of the Central Government, or any officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in that behalf by general or special order of the State Government, to arrest a person or search a building, conveyance or a place or to authorize any officer subordinate to him but superior in rank to a peon, sepoy or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night. 11. Sub-section (3) of Section 41 of the NDPS Act says that the Officer to whom a warrant under sub-section (1) is addressed and the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under Section 42. 12. Sub-section (1) of Section 42 of the NDPS enumerates the powers of any such officer as is specified therein and who is duly empowered by the Central Government or the State Government, as the case may be. If he has reason to believe either from personal knowledge or on information given by any person and taken down in writing, that (a) any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed; or (b) 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, he may exercise the following powers, between sunrise and sunset. They can: (1) enter into any building and search any such building, conveyance or place and if faced with any resistance, break open any door and remove any such obstacle to such entry; (ii) seize: (a) such drug or substance and other materials any other article or any animal or conveyance which has reason to believe to be liable to confiscation under the Act and (b) any document or other article which he has reason to believe may furnish evidence of the commission of any offence relating to such drug or substance: and (iii) 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. The proviso to sub-section (1) says that an empowered officer may also enter into any building, conveyance or enclosed place at any time between sunset and sunrise if he has reason to believe that a search warrant or authorisation cannot be obtained without of evidence or facility for the escape of an offender but in such a case before so proceeding he is enjoined to record the grounds of his belief. 13. Sub-section (1) of Section 42 contains a procedural directive to the officer who takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto to send forthwith a copy thereof to his immediate official superior. 14. It is thus, seen that for exercising powers enumerated under sub-section (1) of Section 42 at any time whether by day or by night a warrant of arrest or search issued by a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class who has been specially empowered by the State Government in that behalf or an authorisation under sub-section (2) of Section 41 by empowered officer is necessary. Without such a warrant or an authorisation, an empowered officer can exercise those powers only between sunrise and sunset. However, the proviso permits such an empowered or authorized officer to exercise the said powers at anytime between sunset and sunrise if he has reason to believe that such a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender and he records the grounds of his belief.” 15. Regard being had to these provisions, one can easily come to the conclusion that no officer, other than the empowered officer, can exercise power under section 42 of the ND & PS Act and further it comes down that any collection of materials, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer u/s 41(2) of the ND & PS lacks sanction of law and is inherently illegal and as such the same cannot form basis of a prosecution. 16. In the instant case, on going through the entire records, one would find that search, seizure and arrest has been effected by PW-5 in exercise of powers u/s 41(2) of the ND & PS Act. As it is the case of prosecution as noticed earlier that PW-5, on getting information, did reduce it in writing (Ext. p/6) and communicated it by his letter (Ext. p/5) to PW -3, the Superintendent, who has categorically deposed that on getting such information, he authorised PW 5 to constitute a team and to lay raid and to arrest the accused. Thus, evidently authorisation is there. Further, it does appear that PW-3, a Gazetted Officer on getting information in writing, did inform about the seizure to his superior officer vide his letter (Ext.P/9). So far as empowerment of PW-3, in terms of provision as contained in Section 41(2) of the ND & PS Act is concerned, it has never been raised by the defence in course of the trial. Even no suggestion to that effect has been given. In such event, submission advanced on behalf of the defence at this stage is not acceptable that PW-3 had not been empowered. Going further in the matter, it be stated that PW-5 upon being authorised, laid raid along with the other raiding party and made search of the person of the accused in presence of PW-3 as well as other person including the independent witnesses and recovered the contraband tablets and this was done after the accused was given option of being searched in presence of the Magistrate or Gazetted Officer to which he never opted which is evident from Ext. P/12 and the accused even in his statement u/s 313 Cr. PC has never denied rather admitted this fact. P/12 and the accused even in his statement u/s 313 Cr. PC has never denied rather admitted this fact. Under the circumstances, there has been no contravention of the provisions of Section 50 of the ND & PS Act. Furthermore, there appears to be substantial compliance of the provisions as contained in Section 41 of the ND & PS Act. 17. Under the circumstances, I do not find any illegality with the judgment and order passed by the trial court and hence it is hereby affirmed. In the result, this appeal fails and accordingly it is dismissed.