JUDGMENT : A.P. Thaker, J. 1. The appellant-State has preferred the present appeal under Sec. 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order dated 14-5-2007 passed by the Special Judge, Panchmahal at Godhra (hereinafter be referred to as "the trial Court") in Special (N.D.P.S.) Case No. 2 of 1998 whereby the trial Court has acquitted the original accused-respondent herein for the charges levelled against her. 2. Brief facts of the present case is that on the day of incident, when the complainant along with one Police Constable Bharatsinh were on patrolling near Santarampura S.T. Stand at about 10-30 hours, he received information that one lady sitting in S.T. Stand possessed with opium. Therefore, both of them went to the scene of offence and found one lady in suspicious condition and after introducing themselves as Police personnel, they asked her name and also told her that the information about the stock of opium lying with her, and at that time, she narrated her name and also accepted that she was having 1.400 kilogram opium which was kept in one basket. It is the case of the prosecution that, thereafter, she was asked regarding pass or permit, but she did not have any such documents, and accordingly, the Police personnel took her to the Police Station, and thereafter, she was arrested and panchnama was prepared regarding seizure of the muddamal articles as well as body condition of the accused and the same was sent to the F.S.L. and after necessary investigation, the concerned police has filed the charge-sheet before the learned Judicial Magistrate, First Class. 2.1. That as the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class has committed the same to the Court of Sessions wherein it was registered as Special (N.D.P.S.) Case No. 2 of 1998. 2.2. After verifying the documentary evidence, the learned Special Judge has framed the charge against the lady accused and it was explained to the accused, the accused has pleaded not guilty and the evidence of the prosecution was recorded. After recording of the evidence of the prosecution, a statement under Sec. 313 of the Code of Criminal Procedure was recorded wherein the accused has denied of having committed any such offence and has pleaded that she is innocent and she neither examined herself nor examined any defence witness thereof. 2.3. After recording of the evidence of the prosecution, a statement under Sec. 313 of the Code of Criminal Procedure was recorded wherein the accused has denied of having committed any such offence and has pleaded that she is innocent and she neither examined herself nor examined any defence witness thereof. 2.3. After considering the evidence on record and after hearing both the sides, the trial Court has ultimately acquitted the accused-respondent from the charges levelled against her. 2.4. Being aggrieved and dissatisfied with the said judgment and order of acquittal, the State has preferred this appeal inter alia contending that the evidence of the Police personnel has not been properly appreciated by the trial Court and the trial Court has committed serious error of law and fact. It is prayed by the prosecution to quash and set aside the impugned judgment and order of acquittal and to pass necessary order of conviction and punishment against the accused. 3. Heard Mr. K.P. Raval, learned Additional Public Prosecutor for the appellant-State at length and none has appeared on behalf of the respondent-accused. Perused the material placed on record. 4. Mr. K.P. Raval, learned Additional Public Prosecutor for the appellant-State has, by referring to the evidence on record, submitted that the accused was arrested with opium and necessary formalities were carried out by the Investigating Officer and the Police personnel has identified the accused and have supported the case of the prosecution. According to him, though the independent panchas have turned hostile, but the recovery of the opium from the accused is substantiated by the evidence of the Police personnel, and therefore, the trial Court ought to have accepted the version of the prosecution and ought to have convicted the accused and punished her. He has prayed to allow the present appeal. 5. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. However, appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 6. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person, and therefore, the decision is to be characterised as perverse. 7. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime with which he is charged. 8. Considering this well settled principles of law, on perusal of the material placed on record, it is found that the prosecution has examined seven witnesses and has produced necessary documentary evidence thereof. It is the case of the prosecution that the complainant-Bhurabhai Lunjabhai Pargi, the Police constable has received the information that one lady, who was sitting in the S.T. Bus Stand, having possessed opium with her. It is the case of the prosecution that the complainant-Bhurabhai Lunjabhai Pargi, the Police constable has received the information that one lady, who was sitting in the S.T. Bus Stand, having possessed opium with her. It is the case of the prosecution that at that time, other Police Constable Bharatsinh Raysinh has also accompanied him and they found that one lady, in suspicious condition, was sitting in Santarampur S.T. Bus Stand and on asking her, she has narrated her name and also stated that she is having 1.400 kilogram opium with her. It is the case of the prosecution that thereafter, the Police personnel have introduced themselves and ultimately, they brought the lady to the Police Station wherein after preparing panchnama, she was arrested and muddamal article was sent to the F.S.L. for analysis. 9. It reveals from the evidence of Police personnel Bharatsinh Raysinh, P.W. 5 at Exh. 13 that he has also stated in his chief-examination that he has received information that one lady is in S.T. Stand having illegally possessed opium, and therefore, he along with Bhurabhai Lunjabhai rushed to the S.T. Bus Stand and found one lady in suspicious condition, and thereafter, after making necessary inquiry, they have brought her to the Police Station wherein she was arrested after preparing necessary panchnama and the opium was recovered from her. 10. It reveals from the evidence of the Investigating Officer that he has stated that as the investigation was handed over to him, he has carried out further investigation and arrested the accused and prepared panchnama of arrest as well as recovery of the muddamal and he has taken the sample of 24 grams and sent it to the F.S.L. for necessary analysis. 11. It reveals from the evidence of the panch-witness that he has not supported the case of the prosecution regarding the arrest of the accused and seizure of the muddamal article from her and all the samples thereof. 12. Now, at this juncture, it is worth to refer to Sees. 41, 42, 43 and 50 of the N.D.P.S. Act. The same reads as under: "41. 12. Now, at this juncture, it is worth to refer to Sees. 41, 42, 43 and 50 of the N.D.P.S. Act. The same reads as under: "41. Power to issue warrant and authorization :- (1) A Metropolitan Magistrate or 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 this Act, 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 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. (2) Any such officer of gazetted rank of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government including the para-military forces or the armed forces 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 this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence 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 place, may authorise 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 or himself arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-sec. (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-sec. (2) shall have all the powers of an officer acting under Sec. 42." "42. (3) The officer to whom a warrant under sub-sec. (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-sec. (2) shall have all the powers of an officer acting under Sec. 42." "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 including para-military forces or armed forces 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 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-sec. (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. "43. Power of seizure and arrest in public place :- Any officer of any of the departments mentioned in Sec. 42 may- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company." 50. Conditions under which search of persons shall be conducted:-(1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Sec. 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-sec. (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. [(5) When an officer duly authorised under Sec. 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Sec. 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-sec. (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior]." 13. The entire case of the prosecution is based on the evidence of the Police personnel. Now, admittedly, the case of the prosecution is under the provisions of Sees. 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter be referred to as "the N.D.P.S. Act"). From the evidence on record, it clearly transpires that the information was received by one Police constable, but he has not reduced in writing nor informed his higher officer. It appears from the evidence of the prosecution that the Police constables have no authority to search or seizure or arrest anybody under Sec. 42 of the N.D.P.S. Act. It also reveals that no warrant has been issued by the higher officer under Sec. 41 of the N.D.P.S. Act. Further, it also reveals that at the time of search of the accused, the provisions contained in Sec. 50 of the N.D.P.S. Act, regarding informing her as to her desires to be searched before the Magistrate or Gazetted Officer, has not been fulfilled in this case. It also reveals that the accused being lady, under Sec. 50(iv), no lady can be searched by male person, except lady. Thus, on reading of entire evidence on record, it clearly transpires that there is a breach of mandatory provisions of Sees. 41, 42, 43 and 50 of the N.D.P.S. Act. It also reveals that the accused being lady, under Sec. 50(iv), no lady can be searched by male person, except lady. Thus, on reading of entire evidence on record, it clearly transpires that there is a breach of mandatory provisions of Sees. 41, 42, 43 and 50 of the N.D.P.S. Act. Therefore, as there is a breach of mandatory provisions of the N.D.P.S. Act, no conviction can be made on the evidence of the police personnel. 14. On perusal of the impugned judgment and order of acquittal, it clearly appears that the trial Court has acquitted the accused only on the basis of the breach of the mandatory provisions of the N.D.P.S. Act. The observations and the conclusion reached by the trial Court are substantiated by the evidence on record, and therefore, there is no error on factual as well as legal committed by the trial Court. 15. For the foregoing reasons, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order dated 14-5-2007 passed by the learned Special Judge, Panchmahal at Godhra in Special (N.D.P.S.) Case No. 2 of 1998 is hereby confirmed. Bail-bond stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.