Shiv Kumar Sharma, J.-Instant appeal impugns the Judgment dated December 2, 2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh whereby the appellant was convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS’ Act) to suffer Rule 1. for 10 years and a fine of Rs. 1,00,000/-and in default to further suffer R.I. for two years.

2. The prosecution story runs as under: 3

Mr. R.C. Kaushal, Superintendent, Central Narcotics Bureau. Branch Singoli, on receiving the information regarding transit of opium in a jeep, proceeded to the spot on May 15, 1998. During the course of Nakabandi, four persons namely Jagbir Singh, Om Prakash, Mukhtyar Singh and Narendra Singh were found sitting in a jeep. Search ofjeep was conducted and in the cavity under the driver’s seat of the jeep, opium weighing 8 Kgs. and 600 gms. was found which was seized and sealed. The statement of all the four persons got recorded, they were arrested and complaint was filed against them under Section 8/18 of the NDPS Act in the Court of Special Judge, NDPS Cases, Chittorgarh. Charge under Section 8/18 of the NDPS Act was framed against the accused who denied charge and claimed to be tried. The prosecution in support of its case examined as many as six witnesses. The accused pleaded innocence in their statements under Section 313 Cr.P.C. The appellant got himself exam- ined as DW-1 and stated that he was not the owner of jeep and falsely implicated in the case. Learned Special Judge on hearing final submissions, convicted and sentenced the appellant as indicated above and acquitted co-accused Om Prakash, Mukhtyar Singh and Narendra Singh.

4. Learned counsel for the appellant canvassed that compliance of provisions contained in Section 42 of the NDFS Act was not made since information was communicated after conducting the search and seizure as is evident from the memo Ex.P-26A and the appellant is entitled to benefit of doubt. Reliance is placed on Kalua Laxman vs. State of Rajas than (1).

5. Per contra, learned Public Prosecutor contended that since the search and seizure was conducted by a Gazetted Officer, provisions contained in Section 42(2) of the NDPS Act are not attracted. Reliance is placed on M. Prabhu Lal vs. Assistant Director, Directorate of Revenue Intelligence (2), wherein their Lordships of the Supreme Court indicated as under:

“It is clear from Section 4 1(2) that the Central Government or State Government, as the case may be, can only empower an officer of a gazetted rank who can either himself act or authorize his subordinate on the terms stated in the section. Under Sub-section (I) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub-section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub-section (2) of Section 42. It is clear from the language of subsection (2) of Section 42 that it applies to an officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by sub-section (2) of Section 41, when such a Gazetted Officer himself makes an arrest or conducts search and seizure.”

6. SinceGazetted Officer himself made search and seizure and arrested the accused, 1 am of the view that checks incorporated in Section 42 are not available to the appellant.

7. Thenext submission of learned counsel for the appellant is that the prosecution has failed to establish beyond reasonable doubt that the opium was in the conscious possession of the appellant and he was the owner of the jeep. On the other hand, it is contended by the learned counsel for the appellant that the appellant himself admitted in his evidence that he was the owner of jeep, thus no interference is called for.

8. I have pondered over the submissions and carefully gone through the material on record. Appellant Jagbir Singh (D