JUDGMENT - LODHA R.M., J.:---The accused-appellant Babukhan alias Chini Babu s/o Rehamankhan who is the resident of Yasin Plot, Tajbag (Motha), Nagpur is convicted by the 6th Additional District and Sessions Judge, Nagpur for the offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the N.D.P.S. Act') and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to suffer further rigorous imprisonment for one year.

2. Testimony of P.W. 6 Bhaskar would show that he received an information in Crime Branch Office on 14-5-1991 at about 2.00 P.M. that the accused-appellant Babu Chini who was staying at Tajbagh (Motha), Nagpur possessed brown sugar and used to sell it to the customers. The said information was recorded in Station Diary Sanha (Ex. 37) and then the information was also reported to the superior Officer, namely, Shri Paraskar, Assistant Commissioner of Police by him (Ex. 31). On the basis of the said information, the Head Constable Bhaskar along with the Police Staff went towards Tajbagh. On enquiry being made about the accused-appellant Babukhan alias Chini Babu, he was informed that the accused was selling brown sugar on the road. Two panchas Vasant and Ibrahim Khan were called and they were explained the confidential information and were also asked as to whether they would act as panchas and which they willingly did. The accused-appellant Chini Babu was found near the bridge and the Police Party headed by P.W. 6 Bhaskar surrounded the accused Babukhan alias Chini Balu and he was asked as to whether the possessed brown sugar and thereafter search of the accused-appellant was taken. The accused-appellant was asked by P.W. 6 as to whether he wanted to have a search before Gazetted Officer or Executive Magistrate, but the accused-appellant refused. The accused-appellant was also asked to take search of Police and panchas which the accused-appellant did. Then personal search of accused was taken. On search of the person of the accused-appellant one closed plastic bag which had 11 small packets was found. The packets were opened and each packet was found to have brownish colour powder of about 50 m.g. Samples were taken and the remaining contents of the packets were sealed. Samples were wrapped and seal affixed. The samples were sent for chemical analysis and these were found to have brown sugar. The case was registered and the accused-appellant was arrested. The accused-appellant possessed contraband and the prosecution sought to prove its case during the trial by the evidence of P.W. 6, Bhaskar, Chemical Analyser's report (Exh. 27), copy of the Station Diary (Exh. 37), the copy of information as sent by P.W. 6 Bhaskar to the superior officer vide Exh. 31. The trial Court after considering the entire evidence on record oral as well as documentary held that the prosecution has been able to prove beyond reasonable doubt that the accused was found in possession of brown sugar and the mandatory provisions of the N.D.P.S. Act were complied with. The trial Court also found that the accused-appellant committed an offence punishable under section 21 of the N.D.P.S. Act and consequently convicted the accused for the offence punishable under section 21 of the N.D.P.S. Act and sentenced as aforesaid.

3. The aforesaid facts and the findings recorded by the trial Court have not been challenged by the learned Counsel Shri S.V. Deshpande, appointed by this Court on behalf of the accused-appellant. However, Mr. Deshpande, the learned Counsel for the accused-appellant strenuously urged that the prosecution case was affected because P.W. 6 Bhaskar was not empowered by the State either by general or special order to carry out search and arrest of the offender under section 42 of the N.D.P.S. Act. Mr. Deshpande urged that Bhaskar (P.W. 6) was only Head Constable and he was not competent to act under section 42 of the N.D.P

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