JUDGMENT
R.C. Chopra, J.
1. The appellant stands convicted under Section 21 of Narcotics Drugs and Psychotropic Substances Act (hereinafter called ”the Act” only) by learned Additional Sessions Judge vide orders dated 12.2.2001. Vide orders dated 15.2.2001, he has been sentenced o undergo RI for 10 years and pay a fine of Rs. 1 lac. In default of payment of fine, he has been ordered to undergo further RI for 6 months. The case of the prosecution, briefly stated, is that on 4.11.1998, PW-7 SI Sunder Singh along with two Constables was patrolling the area near Electric Crematorium within the jurisdiction of PS Kotwali. At about 3.25 p.m., he received a secret information that one person would be coming there with some narcotics. The said information was reduced into writing and thereafter some persons from public were requested to join the raiding party but none agreed. At about 3.45 p.m., the appellant came there and on the pointing out of the informer, was apprehended. He was accosted and told that his search had to be taken. A notice under Section 50 of the Act was given to him so that he may get himself searched in the presence of a Magistrate or a gazetted officer. He declined. Thereafter, his personal search was taken and 10 gms. of heroin was recovered from the knot of his Tehmad. 2 gms. was taken out as sample. The sample as well as the remaining smack was sealed into separate parcels. Form CFSL was filled up. The case property along with Ruqqa was sent to the Police Station on the basis of which, FIR was registered. The case property was got deposited in the Malkhana by the SHO after putting his seals. In due course, the sample was sent to CFSL, Chandigarh from where a report Exhibit PW-8/A was received that it was heroin. After necessary investigations, the appellant was challaned. A charge under Section 21 of the Act was framed against the appellant to which, he pleaded not guilty. In support of its case, the prosecution examined PW-1 Constable Surinder Singh, who had taken the sample to CFSL, Chandigarh for analysis, PW-2 Head Constable Babu Lal, who was a member of the raiding party, PW-3 SHO Raja Ram, who had affixed his seals o the case property before its deposit into Malkhana, PW-4 ASI M.H. Khan, who had recorded the formal FIR, a copy of which was exhibited as Exhibit PW-4/A, PW-5 Head Constable Sardar Singh, who had received as well as sent the case property for Chemical analysis, PW-6 Constable Ashok Kumar, a member of raiding party, P/W-7 SI Sunder Singh, the Investigating Officer and PW-8 Dr. R.M. Tripathi, Senior Scientific Officer from CFSL, Chandigarh. After the close of the prosecution evidence, the appellant was exam ned under Section 313 Cr.PC. He denied the prosecution case and stated that the case against him was false. Learned Trial Judge, after considering the evidence on record and the submissions made by learned counsel for the appellant, held that the recovery of the contraband from the appellant stood proved. He found no infirmity in the procedure followed by the I.O. and in view of the report Exhibit PW-8/A held the appellant guilty under Section 21 of the Act. Learned counsel for the appellant has vehemently argued that the impugned conviction and sentence of the appellant is liable to be set aside inasmuch as the provisions of Section 42(2) of the Act were not followed. He relies upon a judgment in ”Beckoda Abdul Rahiman v. State of Kerala” reported in 2002(3) Scale P-564. In this judgment, reliance was placed upon the judgment ”State of Punjab v. Baldev Singh” . Learned counsel for the State, on the other hand, contends that Section 42 of the Act is not at all attracted to the facts of the present case as the contraband was not recovered from any building, conveyance or enclosed place. In support of his submissions, he relies upon a judgment of the Apex Court in ”State of Haryana v. Jarnail Singh and Ors.” . In the present case, there is no dispute that the contraband was recovered from the personal search of the appellant and was not recovered from any building, conveyance or enclosed place. In the Apex court judgment in ”State of Haryana v. Jarnail Sing and Ors.”(supra) the Apex Court considered the judgment in State of Punjab v. Baldev Singh (supra) and other judgments and came to the conclusion that Sections 42 and 43 contemplate two different situations. It was held that Section 42 contemplates e try and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to b complied with. There is no such proviso to Section 43 of the Act and, therefore, it is clear that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act. In this case the recovery was from personal search of appellant and as such, only Section 43 of the Act comes into play.
2. This Court is unable to agree with the contention made by learned counsel for the appellant that n view of the violation of Section 42(2) of the Act, the prosecution case is liable to fail. Learned counsel for the appellant has also argued that the stereo type statement made by the Investigating Officer that no public witness was willing to join the raiding party cannot be accepted. A perusal of the cross-examination of the Investigating Officer PW-7 shows that in spite of his making a statement that some passers-by were requested to join the raiding party but none agreed, he was not subjected to any cross-examination on this point nor any suggestion was given to him that he was deposing falsely in this regard. Therefore, it cannot be held that the statement of PW-7, I.O. that no public witness was willing to join the raiding party was not true or should not be believed. The notice under Section 50 of the Act has been proved on record as Exhibit PW-2/B. It had clearly notified to the appellant that he could ask for his search in the presence of a Magistrate or a gazetted officer. The appellant himself declined the offer and stated that since the contraband had been recovered from him, he was not insisting upon the joining of any Magistrate or gazetted officer in the the search. Sections 55 and 57 of the Act were also followed. Under the circumstances and in view of the evidence on record, this Court has no hesitation in holding that the prosecution had succeeded in establishing beyond reasonable doubt that 10 gms. of heroin was recovered from the appellant. The impugned conviction and sentence of the appellant, therefore, is upheld. In the result, the appeal fails and is dismissed.
