Honble MITAL, J. – This appeal is directed against the judgment and order of sentence dt. 15.1.96 passed by learned Special Judge, Narcotic Drugs and Psychotropic Substance Cases (District and Sessions Judge), Hanumangarh. The appellant has been convicted under Section 8/15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as `NDPS Act) and sentenced to undergo 10 years R.I. and a fine of Rs. 1 lakh or in default to undergo two years R.I.

(2). Briefly stated, the prosecution case is that SHO Antar Singh received a Mu- khbir information that a person wearing white shirt and trousers with a bedding and one bag is sitting in the waiting hall of bus stand. Hanumangarh town and will proceed by Sadulshahar Bus. He is in illegal possession of poppy straw powder. This information was taken down as Ex. P-1 and forwarded to superior officer by wireless message Ex. P-3 and also entered in Rojnamcha 1552 Ex. P. 2. Station Ho- use Officer Antar Singh proceeded to the place with two motbir witnesses and the appellant was found sitting there who tried to go out but he was detained. After serving notice under Section 50 of the NDPS Act search was conducted and popply straw powder was recovered from bedding and the gunny bag. Two samples weighing 500 gms were taken and sealed on the spot marked A and B and remai- ning articles were also sealed in two packets mark C and D. The seizure memo prepared in the presence of motbirs is Ex. P-6 bearing specimen seal. The specimen seal memo Ex. P-13 was also prepared and a report Ex. P-18 was lodged to police station. The articles were deposited in the Malkhana after making entries Ex. 19 A. The chemical report of FSL, Jaipur Ex. P-21 showed that the article recovered from the possession of the appellant was containing the constituents of opium. Hence a challan was submitted against the appellant for the offence u/s 8/15 of NDPS Act and he was convicted as stated above.

(3). I have heard learned counsel for the petitioner and learned Public Prosecutor. It is argued on behalf of the appellant that Shri Antar Singh was not posted as SHO, Hanuman-garh town on 29.8.94 and therefore he was not empowered to conduct the search and seizure in this case. It is submitted that the prosecution has not produced any Rojnamachaentry also to prove that Shri Antar Singh PW 1 was working as incharge Police Station, Hanumangarh town. It is contended that even if Antar Singh is accepted to have worked as incharge of Police Station he cannot be considered as SHO posted at Police Station. My attention has been drawn to contradictions in the statements of Antar Singh PW 1 S.I. and Surendra Singh PW 7 SHO.

(4). Section 42 of the NDPS Act lays down that any officer of the department mentioned in this section superior in rank to peon, sepoy or constable empowered in this behalf by general or special order by the Central Government or State Government as the case may be, may take action as provided u/s 42 of the NDPS Act and conduct search and seize narcotic drugs or Psychotropic substances or any documents or other articles which may furnish evidence of commission of such offence as mentioned under chapter 4 of NDPS Act. State Government has empo- wered by Notification S.O.115 dt. 16.10.86 all the Sub-Inspectors posted as SHO to act under section 42 of the NDPS Act. I am of the view that the posting of SHO may be by special order or general order also. If a SHO of Police Station is out of the police station and if Sub-Inspector is working in his absence as Incharge SHO Police Station then that Sub Inspector is SHO for all purposes and he will be deemed to have been posted as such by general order making arrangement for work by Sub Inspector as incharge Police Station. No separate or specific order is again necessary for posting him as Station House Officer. The Sub Inspector though incharge, is SHO as posted there and he is, therefore, empowered to act under Section 42 of the NDPS Act.

(5). Learned counsel

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