Honble GARG, J.–This appeal has been field by the accused appellant against the judgment and order dated 24.9.1986 passed by the learned Sessions Judge, Balotra in Sessions Case No.8/86 by which he convicted the accused appellant for the offence under Section 8/18 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act) and sentenced him to undergo ten years RI and to pay fine of Rs.One lac, in the default of payment of fine, to further undergo RI for one year.

(2). The facts giving rise to this appeal, in short, are as follows:-

On 17.1.1986, P.W.1 Khangar Khan, ASI in Police Station Samdari District Barmer while on patrolling alongwith Bhanwar Singh and Nawal Kishore (PW2) near Sarhad Melee Bandha, received a secret information from mukhbir to the effect that accused appellant Kesaram used to deal in illegal business of opium and he had opium in his possession at his house. Thereafter, he alongwith two motbirs PW5 Madha Ram and PW6 Heera Ram reached the house of the accused appellant where he was found and he was informed about the mukhbir information. Thereafter, search of the house of the accused appellant was conducted and in the house, there were three jhumpas belonging to the accused appellant and in one of the jhumpas, one earthen pot containing black substance was recovered and on being tasted, it was assessed that it was nothing, but contraband opium and on being asked, the accused appellant told that he had no valid licence to keep that opium. Thereafter, the opium was weighed and its weight was found to be 70 grms., out of which, one sample of 30 grms. was taken for the purpose of chemical analysis. PW1 Khangar Khan prepared the fard of search and seizure on the spot and the same is Ex.P/2. The accused appellant was arrested through arrest memo Ex.P/4. PW1, Khangar Khan chalked out regular FIR Ex.P/6 and he first kept the recovered articles in his possession and, thereafter, handed over the same to PW3 Rewant Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/7A. Thereafter, one sample was given to PW4 Baburam, who after obtaining forwarding letter Ex.P/9 from SP, Barmer, deposited he same in FSL, Jaipur on 21.1.1986 and got receipt Ex.P/8. The FSL report is Ex.P/12, where it was stated that the sample contained in the packet was opium having 3.84% (Three point eight four percent) Morphine.

(3). After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session.

On 1.5.1986, the learned Sessions Judge, Balotra framed charges for the offence under Sections 8/18 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial.

During trial, the prosecution in support of its case examined as many as 6 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant under Section 313 Cr.P.C. was recorded. In defence, three, witnesses were produced by the accused appellant.

After conclusion of trial, the learned Sessions Judge, Balotra through his judgment and order dated 24.9.1986 convicted the accused appellant for the offence under Section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter- alia that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the said offence.

Aggrieved from the said judgment and order dated 24.9.1986 passed by the learned Sessions Judge, Balotra, this appeal has been filed by the accused appellant.

(4). In this appeal, the learned counsel appearing for the accused appellant has made the following two submissions:-

1. That on the relevant day, PW1 Khangar Khan was simply ASI in the Police Station, Samdari and thus, as per the provisions of Section 42 of the NDPS Act, PW1 Khangar Khan, who was ASI, was not authorised to make search

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