GOPAL LAL GUPTA, J.

( 1 ) KINGSLEY and Casmir, Nigerian Nationals stand convicted under Section 8/21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the Act) and sentenced to undergo 10 years R. I. with fine of Rs. 1 lac by the learned Special Judge, Udaipur (Sessions Judge, Udaipur) by his judgment dated 1. 3. 1994.

( 2 ) THE prosecution case is this. On 1. 1. 1993 P. W. 2 Prem Raj Rathore, Sub inspector, Central Narcotics Bureau, Udaipur received a secret information that Ishakha Sb Amosa, Nigerian National living in Sector No. 4 Hiranmagri and Kingsley and Casmir, Nigerian Nationals residing in Manwa Kheda had received heroin. On this information, he proceeded to Sector No. 4 Hiranmagri alongwith other members of the Bureau and Motbirs Sh. Girdharilal (P. W. 5) and She S. N. Nayar (P. W. 6 ). The house of Ishakha was searched but nothing objectionable article was recovered. Thereafter, the party led by Shri Rathore proceeded to Manwa Kheda and reached the house of Pradeep Kumar. He called two persons, namely, Kingsley and Casmir came out. Shri Rathore told them that he wanted to take the search of the house and the accused consented to search and when the house was searched a polythene bag containing heroin was recovered from below the pillow cover lying on the cot. On weighing it was found to be 1 Kg. 310 grams. The Sub-Inspector also found a scale and weights under the cot. He took out the sample from the recovered heroin and sealed it. He also sealed the remaining articles. After the receipt of the report of the Chemical Examiner, Ex. P. IS, a challan was submitted against both the accused.

( 3 ) BOTH the accused denied having committed any offence. The prosecution examined eight witnesses. P. W. 1 Hira Lal Constable, P. W. 2 Prem Raj Rathore, S. I. P. W. 3 Raghuveer Singh, Constable, P. W. 4 Deep Singh, Constable and P. W. 7 Durga Lal, Constable are the employees of Narcotics Bureau, who were members of the raiding party. P. W. 5 Girdhari Lal and P. W. 6 S. N. Nair were associated in the search and seizure as Motbirs. P. W. 8 Nathi Lal Mitollya had conducted investigation. The accused in their statements recorded under Section 313 Cr. P. C. stated that the witnesses have given false statements and they did not know anything. Accused Kingsley stated that he was student of Shivaji University, Kolfiapur and he went to Udaipur only on 28. 12. 1992 and that on 1. 1. 93 when he was in the market alongwith Casmir, they were accosted by the corps and asked if they were Nigerians and on their saying yes, they were caught. Accused Casmir also stated that he went to Udaipur only on 29. 12. 1992 alongwith his wife and was with Kingsley in the market when he was caught. The accused did not examine any witness in defence. The learned special Judge, after hearing the learned counsel for the parties and considering the evidence, convicted the accused as above. Hence, these represented and jail appeals.

( 4 ) I have heard Mr. Mehta, learned counsel for the appellants and Mr. Joshi, learned counsel for Union of India and perused the record of the case.

( 5 ) THE contention of Mr. Mehta, learned counsel for the appellants is three fold: (i) that it is not proved on record that there was compliance of Section 42 of the Act; (ii) that the Sub-Inspector was not authorised to make a search and seizure without obtaining warrant from the Magistrate under Section 41 of the Act; and (iii) that the statements of the accused recorded under Section 67 of the Act could not be read in evidence as these statements were hit by Article 20 (3) of the Constitution of India. The case of State of Punjab v. Balbir Singh, Saiyed Mohd. v. State of Gujarat,r. B. Shah v. D. K. Guha, and Narcotics Control Bureau v. Gani Khan, have been referred to. As against this, the learned counsel appearing for the Union of India submits that there is a presumption of the official acts having been clone In accordance