Honble JAIN, J.–Accused appellant Raju Munim @ Rajendra Singh Meena has been convicted and sentenced by the Special Judge, N.D.P.S. Cases, Jhalawar, vide its judgment and order dated 4.6.2001, in Sessions Case No. 22/2000, under Section 8/21 of the N.D.P.S. Act, 1985 (for short, `the Act), to 12 years rigorous imprisonment and a fine of Rs. 1,00,000/-; in default of payment of fine, to further undergo one years additional rigorous imprisonment.

(2). Relevant facts, in brief, for disposal of this appeal are that Sub Inspector, Police Station, Bhawanimandi, lodged First Information Report at Police Station Bhawanimandi, on 29.6.2000, wherein it was alleged that he received a secret information from one informer and on that basis he reached at Tagar crossing. He directed Constable Ramesh Chand to bring two independent and respectable inhabitants of the concerned locality to attend and witness the search. He found one person of a description as stated by the informer. On asking, he disclosed his name as Raju Munim @ Rajendra S/o Heera Lal. Meanwhile Constable Ramesh Chand came back and told that no inhabitant of the locality is willing to attend and witness the search and seizure against the smuggler. Thereafter he directed two Constables Ram Prasad and Latoor Lal to attend and witness the search and seizure. He apprised the accused with his right about his search either before Magistrate or before Gazetted Officer. The accused gave his consent in writing of his search by him. Thereafter a search was conducted in presence of the witnesses. The contraband `smack, weighing 105 gram with two polythene bags, was recovered from the possession of the accused. 5 Gram smack was taken as estimated weigh of polythene bag. The net weigh of smack was 100 gram. He took two samples of 10 gram each and remaining 80 gram smack was sealed in packet. After investigation of the matter, charge-sheet was submitted in the case against the accused. The case was committed for trial to the Trial Court.

(3). The learned Trial Court framed charge against the accused appellant under Section 8/21 of the Act. The accused denied the charge and claimed to be tried. The prosecution examined eight witnesses and produced documentary evidence Exhibit P-1 to Exhibit P-22. Thereafter statement of the accused was recorded under Section 313 Cr.P.C. No evidence, oral or documentary, was produced on behalf of the accused, in defence. The learned Trial Court, after hearing the arguments of both the sides, convicted and sentenced the accused appellant as indicated above.

(4). The learned counsel for the accused appellant contended that PW-7 Yashwant Singh was only a Sub Inspector and was not In- charge of the Police Station, therefore, in view of the Notification No. F.1(3)FD/EX/85-1, dated 16.10.1986, issued by the State of Rajasthan, he was not a person authorized under Section 42 of the Act, therefore, as search and seizure was made in the present case by unauthorized person, therefore, there is a violation of mandatory provisions of Section 42 of the Act. He referred to the decisions of this Court in Bhanwar Lal vs. State of Rajasthan, 1999 Cr.L.R. (Raj.) 708 and Bherulal vs. State of Rajasthan, 2004 (1) Cr.L.R. (Raj.) 612.

(5). Learned counsel for the accused appellant further contended that in view of Section 50 of the Act the provisions of sub- section (4) of Section 100 of the Cr.P.C. were applicable in the present case in respect of search and seizure of the contraband and in view of sub-section (4) of Section 100 Cr.P.C. it was the duty of the recovery officer to call independent and respectable witnesses of the concerned locality before proceeding with the search. He contended that in the present case PW-7 Yashwant Singh directed PW-6 Ramesh Chand at 2.25 PM to bring two inhabitants of the locality but he did not make any sincere effort and made a report at 2.40 PM i.e., within fifteen minutes itself that no one is willing to attend and witness the search and seizure

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