An authorized police officer has the right and duty to conduct investigation in all its stages, and the choice of the Gazetted officer for search lies with the Investigating Officer and not with the accused.

S.P. Khare, J.

1. Appellant-Dharmu has been convicted under Section 20(b)(i) of the Narcotic Drugs and Psycho tropic Substances Act, 1985 (hereinafter to be referred to as the 'Act') and sentenced to rigorous imprisonment for three years and to a fine of Rs. 5,000/-.

2. After hearing the learned counsel for both the sides and after careful scrutiny of the evidence on record, this Court is of the opinion that the conviction of the appellant for the aforesaid offence is well merited. T.S. Thakur (P.W. 1) was the A.S.I. at Bastar Chouki. He has deposed that on 14-1-1999 he was on duty in the weekly market and he saw accused Dharmu carrying two bags in a 'Kavar'. He asked the accused about the contents of the bags and he told him that there is Ganja in the two bags. He served the notice (Ex. P-3) on him apprising him of his right to be searched by a Magistrate or a Gazetted Officer. The accused opted to be searched by him. He searched the bags and found Ganja therein. It was weighed. There was five kilograms of Ganja in each bag. He took out sample from each bag and sealed it. He sent the report of search and seizure to the immediate official superior as per Ex. P-14. The samples were sent in sealed condition to the Forensic Science Laboratory and as per report (Ex. P-17) of the Assistant Chemical Examiner the commodity was found to be Ganja.

3. Section 42 of the Act is not attracted in the present case as the search was not from any "building, conveyance or enclosed place". The search was made in a public place in the weekly market. Section 43 applies to the seizure in a "public place". There was proper compliance with Sections 50 and 57 of the Act. The two Panch witnesses Anantram (P.W. 2) and Urdav (P.W. 4) have not supported the prosecution case. The testimony of the police officer in this case is fully reliable and that is supported by the documents prepared on the spot. The recovery of ten kilograms of Ganja from the possession of the accused is fully established.

4. It has been argued on behalf of the appellant that after the search and seizure by the A.S.I. there should have been further investigation by another police officer. Reliance is placed on the decision of Rajasthan High Court in Nathiya v. State (1992 (1) Crimes 537). In this case it has been held that "justice and fairplay" require that the investigation should have been carried out by an 'independent officer' who was not in any way a party to the recovery proceedings.

5. Section 51 of the Act provides that the provisions of the Code of Criminal Procedure, 1973 shall apply in so far as they are not inconsistent with the provisions of the Act to the "searches and seizures" made under the Act. According to Section 37 every offence punishable under the Act shall be "cognizable". Section 42 of the Act authorises "an empowered officer" to effect search and seizure. Section 156(1) of the Code gives power to a police officer to investigate any "cognizable case". According to Section 4(2) of the Code the offences under "any other law" shall be investigated according to the provisions of the Code subject to the provisions of the other law. The term "investigation" has been defined in Section 2(h) of the Code as including all proceedings under the Code for collection of evidence conducted by a Police Officer. In H.N. Hussain v. State of Delhi the Supreme Court has held that under the Code "investigation" consists of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whethe