Page 145 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] QUASIM ALI v. SAJAL BARAN DAS 679

an offence or suspected offences as provided under the provi-
sions of CrPC 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 sub-
stance 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 hap-
pens 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 rea-
son 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 empow-
ered officers or duly authorized officers as enumerated in Sec-
tions 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 con-
travention, that would affect the prosecution case and vitiate
the conviction.
(2-C) Under Section 42(1) the empowered officer if has a prior in-
formation given by any person, that should necessarily be tak-
en down in writing. But if he has reason to believe from per-
sonal knowledge that offences under Chapter IV have been
committed or materials which may furnish evidence of com-
mission 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 be-
tween sunset and sunrise, he must record the grounds of his
belief.
To this extent these provisions are mandatory and contraven-
tion of the same would affect the prosecution case and vitiate
the trial.
(3) Under Section 42(2) such empowered officer who takes down
any information in writing or records the grounds under pro-
viso to Section 42(1) should forthwith send a copy thereof to
his immediate official superior. If there is total non-
compliance of this provision the same affects the prosecution
case. To that extent it is mandatory. But if there is delay
EXCISE LAW TIMES  1st June 2020  145