( 1 ) THE present petition is filed under Sec. 439 of the Criminal Procedure Code for hail.

( 2 ) SHORT facts are that on 5-4-1989 when the present petitioner was on the Platform No. 2 of Vapi Railway Station he was arrested on suspicion by Valsad Railway Police. The informant had suspected the petitioner and had asked certain questions which were not replied by the petitioner properly and therefore the informant checked the bag of the petitioner from which very strong smell was coming out and he found Brown Sugar in that bag It appears that subsequently the petitioner was brought to Valsad Railway Police Station and produced before the Head Constable Ramchandra Ragho where the panchas were called and the search of the petitioner was taken in the presence of panchas. It appears that near about 1 Kg. Heroin was found and the contraband was sealed and seized after 50 grams was taken out for sample and seized as per the panchnama. Thereafter the samples of contraband articles were sent to the Chemical Analyser. It appears from the report of the Chemical Analyser that the contents of exhibit A and B are found to be Morphine Diacetyl Morphine (Heroin) papavani. Narcotine and Methagyalone. Along with it there was one covering letter wherein it was stated that the packets marked as A and B were with intact seals and one small piece of paper with a case number and the name of Vajirbhai Amirbhai and Jitendra Harishankar Thakur were also mentioned in the said chit.

( 3 ) MR. David learned Advocate appearing for the petitioner has raised numerous points before me. The first point is with regard to Chemical Analysers report and he submits that it is not the same muddamal which was alleged to have been recovered from the petitioner and sent it to Chemical Analyser. He places reliance on the small respects of than matter which is mentioned in the panchnama while in the report of the Chemical Analyser nothing is mentioned with revered to such. In that view of the matter according to him some different substance was sent to the Chemical Analyser. It is pertinent to note that there is no substance in this contention because muddamal was seized in the presence of panchas and samples weretaken and were sealed in two packets which were marked as A and B and they were sent to Chemical Analyser. They were received by the Chemical Analysers office with seals in tact. In that view of the matter at this stage this contention cannot be accepted. It is a matter of trial.

( 4 ) THE second point which is raised before me is that the investigation is carried on by Head Constable and as it was seized from the public place Sec. 43 would apply and therefore Head Constable has no authority. What is mentioned in the opening of Sec. 43 of Narcotic Drugs Nc Psychotropic Substances Act 1985 is any officer of any of the Departments mentioned in Sec. 42 may discharge the duties mentioned in Sec. 43. Now when there is a mention of Sec. 42 in Sec. 43 it is very clear that the Legislature has employed the shorthand? instead of reproducing what is stated in Sec. 42 and therefore those officers who are authorised for the purpose of search and seizure under Sec. 42 would also be entitled to search and seize the goods in public place as mentioned in Sec. 43.

( 5 ) IT is also contended before me that Head Constable cannot be unit to be Police Officer and he relies on the judgment of the Rajasthan High Court in the case of State v. Jagmolaram 1989 Crimes Vol. I 314 What the learned Judge has observed is that Sec. 43 also excludes Police Constable and Head Constable being a Constable he cannot be said to be an officer. This judgment cannot be relied upon because the Police officers are defined in Sec. 2 (11) of the Bombay Police Act wherein it is defined that Police Officer means any member of the Police Force appointed or deemed to be appointed under the said Act. When that is 80 Police Constable or Head Constable is a member of the Police Force and therefor