Sections 42 and 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are independent of each other and Section 43 is applicable to public places or places of transit, while Section 42 is applicable to buildings, conveyances and enclosed places.

1. - This appeal is directed against the judjement dated 27th January 1988, passed by the learned Sessions Judge, Ajmer, in Sessions Case No. 25/86. Learned Sessions Judge convicted and sentenced the present appellant under the Narcotic Drugs and Psychotropics Substance Act, 1985, to 10 years rigorous imprisonment and a fine of Rs. 1,00,000/-. In case of default in payment of fine, accused appellant was further directed to undergo rigorous imprisonment for one year.

2. Prosecution story unfolded during the trial is that on 26th November, 1985 at about 4 A.M., ASI Bajrang Lal. Police Station Pushkar. accompanied by Constable Prem Singh and Mool Dan, left for patrolling duty in the Pushkar fair. While the two officials were having their Patrolling round, they were informed by an informant that one Hazari Gujar resident of Pagara who used to traffic in opium had brought opium and was around the Gujaron-ka-deora near the Brahmaji temple. On receiving this information all the three Police officials reached Gujaron-ka-Deora. There they found a man sitting on the Chabutra outside the Deora. The man had a bag in his hand. On search being taken of the bag. a packet of plastic paper containing opium was found in the bag. The opium recovered weighed 350 gms. in weight. Accused was asked as to whether he had any licence or permit for the possession of the drug to which he answered in negative, sample weighing 30 gms. was taken out of the substance recovered and was sealed in a separate packet. Rest of the recovered material was sealed in a separate packet. The accused was placed under arrest and was taken to the Police Station, Dara Pushkar, where the written report Ex. P. 3 was lodged by the ASI Bajrang Lal, where upon the FIR Ex. P. 4 was recorded. Accused was charged under Section 8/18 of the Act of 1985. Accused pleaded not guilty and claimed to be tried. During the trial the evidence of the prosecution and defence witnesses was recorded. Learned Sessions Judge found the accused guilty and convicted and sentenced him as referred above.

3. Learned counsel for the appellant has assailed the judjement of the court below on number of grounds. First of all, he submitted that the case is squarely covered by the judjement of this Court. He has cited before me the case of Nand Lal v. State of Rajasthan 1987 RCC 435 decided on 5-10-1987 . My brother Hon'ble Justice Dave while dealing with the provisions of Section 42 of the Act of 1985, held as under:

"Powers of investigation particularly detention, search, arrest and seizure are given to the officers of the rank of Sub-Inspectors and above the Sub-Inspectors and to the Deptt. Central Excise, Customs, Revenue Intelligence, and Central Economic Bureau."

"Investigation without authority of law-Effect-Amanulla Khan PW 1 who was only Head Constable was not authorised under the Act to search or get the accused in custody-Held, a Head Constable is also a constable and is certainly not a Sub-Inspector or Inspector of Police. He had no jurisdiction express or implied under the Act to exercise the powers under Section 42 and as such the very foundation of the case is without proper authority of law."

4. Learned counsel for the appellant has also cited before me the case of Umrav v. State of Rajasthan 1988 RCC 133 . My brother Hon'ble Mr. Justice Farooq Hasan has held as under:

"Section 42. Whether Police Officers-SHO or of the rank of Inspector had no jurisdiction or authority to make search, seizure in absence of specific notification under the Act and the trial and conviction of the accused is thus vitiated-Held, yes."

The State Government issued notification in exercise of powers under Section 42 of the Act authorising all Inspectors or S.I. of Police to exercise power under the Section on 16-10-1986 while the SHO P.S. Khandela searched and seized and arrested accused on 1-8-1986 without any such authority conferred by any special notification. Thus, the search was made by a police constable wit