The mandatory provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 must be strictly complied with, and the prosecution bears the burden of proving that the recovery officer was competent or authorized to conduct the search and seizure.

1. - This appeal arises out of the judgment and sentence passed on 25.2.99 by learned Special Judge, N.D.P.S., Cases, Bhilwara in Sessions Case No. 265/97, whereby the appellant Bhanwar Lal has been held guilty under Section 8 read with 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the Act') and sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rupees one lac: in default to further undergo rigorous imprisonment for six months.

2. The prosecution case is that Sub-Inspector Ratan Lal, Police Station, Kotwali, Bhilwara received a secret information on 9.11.97 that a person wearing Jerkin of military colour and pent will pass from a Railway culvert near Kashipuri, Harijan Colony with opium in his possession. This information was reduced into writing and he rushed to the spot with police constables and two motbirs. It is alleged that the appellant Bhanwar Lal came on a motorcycle at about 10.00 PM. who was stopped by the raiding party. A memo under Section 50 of the Act was also served but the appellant consented to give his search to Sub-Inspector Ratan Lal, who recovered from the pockets of the Jerkin two plastic small bag contained 500 Gms. opium in each. Samples were taken and sealed on the spot. The remaining contraband article was also sealed. The report of the F.S.L. Indicated that the article recovered from the appellant was contraband item i.e. opium. The charge-sheet was submitted against the appellant who was prosecuted under Section 8 read with 18 of the Act and after trial the impugned judgment and sentence as stated above was passed by the trial court.

3. I have heard the arguments of learned counsel for the appellant and the learned Public Prosecutor and also perused the evidence on record. It is contended that the compliance of the mandatory provision under Section 42(2) of the Act has not been made because the copy of the secret information has not been forwarded to the official superior and it vitiates the trial. It is further argued that Shri Ratan Lal the recovery officer was Sub-Inspector and not appointed Station House Officer and therefore he was not competent under Section 42 of the Act to conduct the search and recovery of the alleged contraband item. The learned Public Prosecutor supported the to impugned judgment and submitted that the provisions laid down under Section 42 of the Act are not applicable in the facts and circumstances of the case because the appellant was going on public road on motor cycle. He was stopped and interrogated and thereafter the recovery was made from him in a public place. It was, therefore, not necessary for the recovery officer to send a copy of the secret information to the superior officer because Section 43 of the Act is applicable in this case. Shri Ratan Lal was Sub-Inspector at the relevant time, but he was holding the charge of the police station because Shri Pram Singh, S.H.O. was out of station. As such Ratan Lal was performing the duties of Station House Officer. However, the learned counsel for the appellant vehemently argued that the prosecution has failed to establish by cogent and conclusive evidence that S.H.O. Prem Singh was out of station and Ratan Lal was acting as Station House Officer.

4. I have given my careful consideration to the rival contentions. The learned trial court has dealt with this argument and came to the conclusion that in all the documents prepared on the soot in connection with the search and recovery, Ratan Lal has designated himself as incharge Police Station and the witnesses have also stated that Prem Singh, S.H.O. had gone out for official work. The learned trial court took the view that non-production of the Rojnamcha entry to prove handing over and taking over of the charge and non-production of S.H.O. Prem Singh as a witness is inconsequential. I find myself unable to agree with the findings of the learned trial court particularly when the appellant has alleged that a false ca