Surjit Singh, J.—Heard and gone through the record.

2. Appellant has challenged the judgment of the Special Judge, whereby ii he has been convicted of an offence under Section 18(c) of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act, and sentenced to undergo rigorous imprisonment for three and a half year and to pay a fine of Rs. 25,000/- and in default of payment of fine to undergo simple imprisonment for a period of one year.

3. Case of the prosecution, as it emerges from the record/may be summed up thus. On 15.12.2003 when a police party, headed by PW-12 HC Sarbjeet Singh of CIA Staff Una, went towards Mehatpur in connection with routine patrolling, Constable Upnesh Kumar, who was already in the area of Mehatpur, informed HC Sarbjeet Singh that the present appellant had in his house large quantity of opium and that if search was conducted immediately the same could be recovered. That information was reduced into writing and sent to the Police Station for formal registration of the case. A copy of that information was also forwarded to the Superintendent of Police, Una, he being the immediate superior Officer of PW-12 Sarbjeet Singh. Thereafter, two witnesses, namely PW-1 Avtar Singh and PW-10 Ram Pal, were associated as independent witnesses. PW-12 HC Sarbjeet Singh accompanied by the above named two independent witnesses and PW-11 HHC Sher Bahadur went to the house of the appellant in village Sahoran. The appellant was found in the house. He was informed that his personal search and the search of his house were intended to be conducted. Thereafter, HC Sarbjeet Singh (PW-12) got his person searched from the appellant in the presence of the above named two independent witnesses. Then he carried out the search of the house of the appellant. A refrigerator was found lying beside one of the walls of the kitchen and behind that refrigerator a plastic bag was found kept concealed. The bag contained opium, which on weighment was found to be 740 grams. The opium was seized. Search and seizure Memo, was prepared. Two samples, each weighing 10 grams, were separated from the recovered opium. The samples and the bulk opium were made up into separate parcels and the same were sealed. One of the samples was sent to the Chemical Examiner, who reported that the sample contained opium.

4. Appellant was sent up for trial. He was charged with an offence under Section 18(c) of the Act. On his pleading not guilty, he was tried and was ultimately convicted and sentenced, as aforesaid.

5. Learned Counsel representing the appellant has submitted that the evidence regarding search and recovery is doubtful and does not inspire confidence. His further submission is that mandatory provision of the proviso to sub-section (1) of Section 42 of the Act had not been complied with.

6. I have gone through the record and considered the aforesaid submission of the learned Counsel, in the light of the evidence on record. As per prosecution version, search was conducted by PW-12 HC Sarbjeet Singh in the presence of two independent witnesses, namely PW-1 Avtar Singh and PW-10 Ram Pal. One of these two independent witnesses, namely PW-10 Ram Pal is involved in many criminal cases instituted against; him by the Police therefore he cannot be termed an independent witness, Further both these witnesses are not from the locality where the search was carried out. PW-1 Avtar Singh is resident of village Badala, which is at a distance of 5-6 Kms. from Sahoran where the house of the appellant, which was searched, is situated. PW-10 Ram Pal is resident of Mehatpur, which is at a distance of 2-3 Kms. from the village of the appellant. The explanation put forward by the Investigating Officer in not associating any responsible person of the area is that though the house of the appellant is situated in a thickly populated segment of the village, no man was found available in any of the houses in the neighbourhood of the appellant and t