ORDER : 1. Heard learned Public Prosecutor and minutely gone through the order dated 25.10.2023. 2. The instant leave to appeal has been preferred by the State of Rajasthan again against the judgment dated 25.10.2023 passed by the learned Special Judge, NDPS Cases, Pratapgarh in Special Sessions Case No.40/2021 whereby the accused-respondent has been acquitted from the charge of offence under Section 8 read with 21 of NDPS Act. 3. The instant leave to appeal is reported to be barred by limitation as there is a delay of 35 days in filing the same. An application under Section 5 of the Limitation Act for condonation of delay has been preferred by learned Public Prosecutor. 4. For the reasons and grounds mentioned in the application, the same is allowed. 5. The leave petition be treated within limitation. 6. Now coming to the niceties of the case. Succinctly stated the facts of the case are that on 05.06.2021, one Himmat Bunkar, Sub-Inspector apprehended the accused-respondent and made his personal search after giving him a notice under Section 50 of the NDPS Act. It is alleged that 7 gram brown sugar came to be recovered from the pocket of the accused-respondent. The material was seized, the accused was arrested and after usual investigation, he was charge-sheeted. 7. After taking cognizance of the offence and framing of charges, the trial was commenced. After a full-fledged trial, the learned trial Court acquitted the accused-respondent from the charges for the reason of blatant non-compliance of Section 42 of the NDPS Act. 8. Several defects in the investigation have been noticed. Indeed, there is a defect in seizing sampling and sending the article to the FSL. As a matter of fact, no inventory has been prepared and no samples in the presence of Magistrate were taken for the purpose of sending the same to the FSL. As per the guidelines issued under Standing Order No.1/1989, it was incumbent upon the Seizing Officer to ensure taking samples of the contraband in the presence of Magistrate after making inventory. It has further been mandated by the legislature after insertion of Section 52 A of the NDPS Act. In a reasoned judgment passed by Hon’ble the Supreme Court in the case of Mohammed Khalid and another Vs. The State of Telangana passed in Criminal Appeal No(S). It has further been mandated by the legislature after insertion of Section 52 A of the NDPS Act. In a reasoned judgment passed by Hon’ble the Supreme Court in the case of Mohammed Khalid and another Vs. The State of Telangana passed in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be waste and was not considered worthy of being read in evidence. On the basis of this inter alia other aspects, Hon’ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:- “22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence.” 9. A further defect has been observed by the learned trial Court and this Court concurs with his observation. As a matter of fact, the seizure has been effected by Sub-Inspector Himmat Bunkar who was then In-charge of outpost Nogawa of Police Station Arnod. At the relevant point of time, one Ravindra Singh was posted as SHO of the Police Station. It is emanating from the judgment itself that not a single piece of evidence has been produced by the prosecution to show that the Sub-Inspector Himmat Bunkar was having charge of Police Station Arnod or he was posted as SHO Arnod at the relevant point of time. Even when he was examined as P.W.-5 in the trial, he introduced himself as Sub-Inspector and in-charge of the outpost. The daily Rojnamcha which is maintained by the Police Station does not contain any endorsement to this effect that either the Sub-Inspector Himmat Bunkar was SHO of the Police Station or he was given the charge of the police Station. In all the memos prepared by the Police, the nomenclature of the Seizing Officer has been mentioned as Sub-Inspector In-charge of outpost. In all the memos prepared by the Police, the nomenclature of the Seizing Officer has been mentioned as Sub-Inspector In-charge of outpost. Not a single piece of either oral or documentary evidence has been produced so as to show or suggest that the recovery was effected by a Police Inspector or by a sub-Inspector who was posted as SHO. 10. As per the S.O. issued by the Government Of India in the Year 1986, only the Sub-Inspectors of police, who are posted as SHO are authorized to make search and seizure under the NDPS Act. In this regard, this Court has passed a detailed order dated 09.11.2023 in S.B. Criminal Misc. II Bail Application No. 3678/2023 titled Satyanarayan @ Sattu S/o Jeetmal Jat Vs. State of Rajasthan; the relevant portion of the order is reproduced as under:- “7. While enacting Section 42 of NDPS Act, the legislature put a complete ban on authorities beyond the ones mentioned in the Section to carry out the functions under the Act. The legislature has clearly empowered the persons mentioned therein and it has also been specified through the notification No. F. 1(3) FD/EX/85-I, dated 16-10-86 as to who are authorised to do so. 8. Chapter V of the NDPS Act specifically provides that only the officers mentioned and empowered therein can give an authorisation to a subordinate to arrest and search if such officer has reason to believe about the commission of an offence and after reducing the information, if any, into writing. As per Section 42, only officers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information. The specific rank of the officer and ‘reason to believe’ are two important requirements that are needed to be complied with necessarily. Firstly, the Magistrate or the Officers mentioned therein are empowered and secondly, they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the Act. So far as the first requirement is concerned, it can be seen that the legislature intended that only certain Magistrates and certain Officers of higher rank are empowered and can act to effect the arrest or search. 9. So far as the first requirement is concerned, it can be seen that the legislature intended that only certain Magistrates and certain Officers of higher rank are empowered and can act to effect the arrest or search. 9. The notification No. F. 1(3) FD/EX/85-I, dated 16-10-86, published in Rajasthan Gazette Part IV-C (II) dated 16-10-86 on page 269 reads as:- S.O. 115.- In exercise of the powers conferred by section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No 61 of 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 are a 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.” 11. A plain reading of the standing order above reflecting that only the Inspector of Police is entitled to effect search and seizure of the contraband under the NDPS Act. The Sub-Inspector of Police who are posted as SHO are also given authority to effect search and seizure. It is manifesting from the perusal of the standing order that all Sub-Inspectors are not authorized and competent to effect search and seizure under the NDPS Act as it has been mandated that only the Sub-Inspectors who are posted as SHO can search and seize the articles under the NDPS Act. In the celebrated judgment as Roy V.D. Vs. State of Kerala reported in AIR 2001 SC 137 , Hon’ble the Supreme Court has enunciated the law in this regard. The relevant part is being reproduced hereinbelow:- 16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the Narcotic Drugs & Psychotropic Substances Act or make a complaint under Clause (d) of Sub-section (1) of Section 36A of the Narcotic Drugs & Psychotropic Substances Act. The relevant part is being reproduced hereinbelow:- 16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the Narcotic Drugs & Psychotropic Substances Act or make a complaint under Clause (d) of Sub-section (1) of Section 36A of the Narcotic Drugs & Psychotropic Substances Act. If follows that any collection of material, 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 under Section 41(2) of the Narcotic Drugs & Psychotropic Substances Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the Narcotic Drugs & Psychotropic Substances Act and use of such a material by the prosecution vitiates the trial. 18. It is well settled that the power under Section 482 of the Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence bases on such material butal so the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 of the Cr. P.C. to quash proceedings in a case like the one on hand, would indeed secure the ends of justice. 12. The NDPS Act is often called as Draconian law for the reason of having stringent provision of punishment and that is why, just to avoid misuse of the powers, certain mandates have been incorporated in the statute. The law in this regard is now no more res integra that non-compliance of Section 42 of the NDPS Act would vitiate the entire proceeding. 13. The learned trial Court has dealt with the above issue very prudently which in my view is a perfect observation in light of the legal provisions. The law in this regard is now no more res integra that non-compliance of Section 42 of the NDPS Act would vitiate the entire proceeding. 13. The learned trial Court has dealt with the above issue very prudently which in my view is a perfect observation in light of the legal provisions. The finding of acquittal is fully based upon cogent reasons requiring no interference by this Court. 14. Otherwise also, there has been a presumption of innocence in favour of every accused which is fortified and further strengthened by the judgment of acquittal by a competent Court. It is well-nigh settled principle of law that the appellate Court should show reluctance in making interference in the well reasoned judgment of acquittal and it should not make interference in the order unless it appears that the judgment of acquittal is a product of total misappreciation of evidence or the judgment of acquittal is passed in contravention of any legal provision or that the finding is reached without consideration of the material available on record. In a recent judgment, Hon’ble the Supreme Court in the matter of Mallappa & Ors. Vs. State of Karnataka passed in Criminal Appeal No.1162/2011 decided on 12.02.2024 has expounded the law in this regard. The relevant part has been reproduced herein below:- 36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The relevant part has been reproduced herein below:- 36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as: (i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive – inclusive of all evidence, oral or documentary; (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge; (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed; (iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal; (v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts; (vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court. 15. When it is appearing that the finding of acquittal does not require any interference, then there would be no justification to permit the State to prefer an appeal, since doing so would further burden the work of the High Court because even if the leave is granted, the appeal would have been dismissed for the reasons discussed above and therefore, this Court is of the view that present is not a case for granting leave petition to the State to prefer an appeal against the judgment of acquittal passed by the learned trial Court. There is no force in the leave petition. 16. Accordingly, the instant leave to appeal is dismissed. 17. The judgment of acquittal dated 25.10.2023 passed by the learned Special Judge, NDPS Cases, Pratapgarh is further affirmed by this Court.