ORDER
M.B. Sharma, J.
1. This is bail application seeking bail for the two accused-petitioners in the case which was registered and in which a charge-sheet has been filed under the provisions of Narcotic Drugs And Psychotropic Substances Act, 1985 (for short, the ND & PS Act).
2. The facts of the case in brief are these. One Bhishm Dev, Sub Inspector Jhalawar camp Khanpur of the Narcotics Department received information from Mukhbir and sought instructions from Shri J. S. Negi, Superintendent, Control Room Kota, on keeping a watch near Ghati of Doongar village, it is alleged, that at about 12-30 p.m. three persons were seen carrying black rexine bag to be proceeding on road. They were asked to stop, but they made attempt to run away. One of them, namely Laxminarain, ran away throwing the bag and the other two persons were stopped. It is alleged that the persons who were stopped disclosed their names and also the name of the person who ran away. On being asked whether they want the search to be conducted before a Magistrate or a gazette officer, they are said to have told that they want that search should be conducted before a Panch. Search was taken, and from the bags which was thrown by Laxminarain more than 6 kg. opium was recovered. On the bags from the two persons opium weighing more than 5 kg and 3 kg were recovered. Samples were taken and sent to chemical analysis and on chemical analysis the samples were found to be of opium. Thereafter, a complaint was filed against the accused-petitioners and Laxminarain. The two accused-petitioners applied for bail before the learned Sessions Judge, Jhalawar who under his order dated October 26, 1989 dismissed their bail application.
3. The contention of the learned counsel for the petitioners is that there has been contravention of Section 42 of ND & PS Act inasmuch as required by Section 42 of the aforesaid Act ‘reason to believe’ that an offence punishable under Chapter IV has been committed was not recorded and this renders the entire search illegal. Learned counsel does not dispute that in view of the Notification No. SO.822 (E) Notification No. 6/85 F. No. 664/51/85 published in Gazette of India Exty.Pt.(ii)(3)(ii)P 1162 dated November 14, 1985, Sub-Inspector of Narcotic Department was authorised to take search, seize and arrest without warrant any person, if he had reason to believe that an offence under Chapter IV of the ND & PS Act has been committed. The aforesaid Notification reads as under:
“In exercise of the powers conferred by Sub-section (1) of Section 42 and Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby empower officers of an above the rank of Sub-Inspector in the departments of Central Excise, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau to exercise the powers and perform the duties specified in Section 42 within the area of the irrespective jurisdiction and also authorise the said officers to exercise the powers conferred upon them Under Section 67”.
The powers which have been conferred are to enter, search, seize and arrest without warrant or authorisation. Under proviso to Sub-section (1) of Section 42 of the aforesaid Act 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 the sunset and sunrise after recording the grounds of his belief. In my opinion Section 42 will apply only in case the search is to be effected in any building, conveyance etc. As already stated earlier, even it is not disputed that the Sub-Inspector has been authorised by the aforesaid Notification Under Section 42 of two ND & PS Act but as already stated earlier the contention is that reason to believe was not recorded and still the search was conducted. In my opinion, Section 42 will not apply to a case where a search was not to be taken in a building, conveyance or enclosed place and will apply to a case where the person authorised Under Section 42 of the ND & PS Act has reason to believe that an offence under Chapter IV of that Act has been committed. Section 43 of the aforesaid Act reads as under:
“43. Power of seizure and arrest in Public places — Any officer of any of the departments mentioned in Section 42 may —
43.(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed asnd alongwith 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 Chapter IV relating to such drug or substance;
43.(b) detain and search any person when he has reason to believe to have committed an offence punishable under IV and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation:– For the purposes of this section, the expression ‘Public place’ includes any public conveyance, hotel, shop or other place intended for use by or accessible to, the public.”
A reading of Section 43 will show that no recording of reasons in writing for belief that an offence under Chapter IV has been committed is necessary. To me there appears to be logic behind it. If an officer suspects that an offence has been committed under Chapter IV of the ND & PS Act in a public place, there can be hardly any time for him to record any reason in writing for his belief or to obtain warrant of authorisation. A bare comparative reading of Sections 42 and 43 will show that whereas Section 42 of the said Act applies to a case of entry into or search of any building etc., Section 43 of the Act applies to a case of search in public place, in which case it was not necessary to record reason for belief in writing and the officer suspecting that an offence under Chapter IV of the ND & PS Act has been committed could have proceeded to take search of the persons and seize the articles and arrest them. Learned counsel for the petitioner in support of his contention that the search was in contravention of Section 42 of the ND & PS Act has placed reliance on the case of K. L. Subhayya v. State of Karnataka, (1979) 2 SCC 115 : (AIR 1979 SC 711). In that case the court was dealing with Section 53 of the Karnataka Excise Act, 1965, Section 53 of that Act was extracted in that case which reads as under:
“If a Magistrate, upon information and after such inquiry (if any) as he thinks necessary, has reasons to believe that an offence Under Section 32 Section 33, Section 34, Section 36 or Section 37 has been, is being, or is likely to be committed, he may issue a warrant —
(a) for the search of any place in which he has reason to believe, that any intoxicant, still, utensile, implement, apparatus, or materials, which are used for the commission of such offence or in respect of which such offence has been, is being or is likely to be, committed, are kept or concealed, and
(b) for the arrest of any person whom he has reason to believe to have been, to be likely to be engaged in the commission of any such offence.”
The court said that Section 53 relates to a contigency where the statute enjoins that any inspector before searching a place must obtain a warrant from the Magistrate, Section 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. Section 54 of that Act has also been extracted in the aforesaid case which reads as under:
“Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an Officer in charge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under Section 32, Section 33, Section 34, Section 36 or Section 37 has been, is being or is likely to be committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief–
(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and
(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.”
It will therefore be clear that both Sections 53 and 54 of the Karnataka Excise Act relate to the case of search of a place and not of person. In my opinion therefore that authority has no application to the facts of this case. As already stated earlier in my opinion the case is covered by Section 43 of the ND & PS Act and I am unable to agree with the learned counsel for the petitioner that the search, seizure and arrest was illegal.
4. Looking to the quantity of opium said to have been recovered from the accused petitioners, I find no case for bail. The bail application is hereby dismissed.