JUDGMENT 1. - The petitioner has been convicted under Section 4/9 of the Opium Act, 1878 (for short, the Opium Act) and has been sentenced to undergo three months' rigorous imprisonment and a fine of Rs. 100/-, or in default of payment of fine to further undergo 15 days' rigorous imprisonment. The appellate court had sentenced the accused-petitioner as aforesaid while affirming his conviction under section 4/9 of the Opium Act recorded by the learned trial court under its judgment dated March 21, 1987. The trial court had sentenced the accused-petitioner to undergo one year's RI and a fire of Rs I,000/-, or in default of payment of fine to further undergo two months' simple imprisonment. 2. The facts are contained in the two judgments of the courts below and suffice it to say that as per the case of the prosecution it was on March 21, 1982 that when the two ASIs, namely Sarva Shri Tej Singh PW 1 and Udai Narain Singh PW 3 of Police Station Kotwali Bundi took a search of the. accused petitioner who was sitting in a bus No. RRG-7103, it was found that there was a bag with the accused petitioner and the bag contained 550 gms milk of opium There was also a notice of motor accident claim and also a pass for the petitioner to travel by bus. The petitioner was a driver of the RSPTC. A sample was taken and it was sent for analysis and on examination it was found by the Asstt. Director of the State Forensic Science Laboratory Jaipur under his report dated December 14. 1982 that the substance was opium. A charge-sheet was filed against the accused-petitioners. He was tried and was convicted and sentenced as aforesaid. 3. The defence of the accused-petitioner under Section 313 Criminal Procedure Code was that no opium was recovered from him and it was recovered from Pritam Singh, the driver of the bus and he (accused-petitioner) was wrongly held-up in case. 4. It was contended by the learned counsel for the petitioner that the search was taken by the two ASIs named above and the search was unauthorised and therefore the accused petitioner cannot be convicted. 4. It was contended by the learned counsel for the petitioner that the search was taken by the two ASIs named above and the search was unauthorised and therefore the accused petitioner cannot be convicted. Under Section 14 of the Opium Act so far as police officer is concerned, any officer of the police superior in rank to a peon or a constable who has reason to believe from personal knowledge or from information given by any person and taken down in writing that opium liable to confiscation under the Opium Act is kept or concealed in any building, vessel or enclosed place. may enter into any such building, vessel or place and seize the same. Learned counsel contends that at the relevant time it was only an officer of the rank of Sub Inspector of the Police who has been authorised by the State Government under Section 14 of the Opium Act who could have made the search and any officer of the police lower in rank than Sub Inspector i.e. ASIs could not have taken the search. It will be seen from various notifications issued by the State Government in exercise of the powers conferred on it under Section 14 of the Opium Act that vide notification No. 49(10)SR/51 dated May 7.1956 the State Government had authorised of or above the rank of Head Constable to make search, but the said notification was superseded by Notification No.D.145/59/37 dated April 28, 1959 and under the aforesaid notification all officers of police department of and above the rank of Sub Inspector were authorised. It can therefore be said that so far as Section 14 is concerned. the Police officer of and above the rank of Sub Inspector were authorised. But if an ASI goes on petrol duty and he finds opium on search, can it be said that the search was illegal, or if so what will be its effect. It is not the case that there was previous information. In routine the bus was proceeding and it was checked by the patrol party and they found the accused with a bag which contained milk of opium A bare reading of Section 14 of the Opium Act will show that that Section is only attracted when in consequence of some information that opium is illegally kept in a building. In routine the bus was proceeding and it was checked by the patrol party and they found the accused with a bag which contained milk of opium A bare reading of Section 14 of the Opium Act will show that that Section is only attracted when in consequence of some information that opium is illegally kept in a building. vessel or place, the building, vessel or place is entered into and search and seizure is made. A look at the Schedule to the Code of Criminal Procedure will show that it classifies the offences and so far as offences punishable for three years and more, are concerned, they are cognizable and non bailable triable by the Magistrate first class. The offences under the Opium Act being punishable with an imprisonment which may extend to three sears can be said to be cognizable offence If that be so, we will go by the Code of Criminal Procedure in so far as the power of police officer in relation to search and seizure is concerned. Section 14 of the Opium Act is not attracted in the present case. A look at Section 41 Criminal Procedure Code will show that a police officer has power to arrest without a warrant any person who has been concerned with any cognizable offence Therefore, in the circumstances of the present case where Section 14 of the Opium Act is not attracted while discharging patrolling duty if an ASI sees that a cognizable offence has been committed. he could arrest the accused and could seize the opium. Learned counsel referred to the case of Nandlal v. State of Rajasthan, Cr. LR (Raj 1987-698) . In that case the learned Judge was dealing with a case of investigation by unauthorised person under Section 42 of the NDPS Act which is in relation to power of entry search and Seizure without warrant. Learned counsel referred to the case of Nandlal v. State of Rajasthan, Cr. LR (Raj 1987-698) . In that case the learned Judge was dealing with a case of investigation by unauthorised person under Section 42 of the NDPS Act which is in relation to power of entry search and Seizure without warrant. Firstly that case does not apply to the facts of this ease and secondly with due respect to the learned Judge a distinction to be made in cases where there is prior information and reason to believe and in cases where there is no prior information and reason to believe, and arrest is made and search is conducted just while exercising patrolling duty It cannot be expected that if on search being taken a narcotic substance or opium is found, the ASI will ask the person to wait till the person authorised to make search comes and thereafter search will be conducted. Even assuming for the sake of argument that there was some irregularly in the search, I am of opinion that it will not affect the trial of the case if any incriminating material is recovered from the accused on the search being taken and if the ingredients of the offence are made out the accused will he guilty of the offence. 5. So far as the present case is concerned on record the courts below have recorded a finding that the milk of opium was recovered from the accused-petitioner and in exercise of re-visional power there is no question of interference in the findings of facts recorded by the two courts below. 6. It was last contended by the learned counsel for the petitioner that under the Opium Act the offence was punishable with imprisonment for three years and therefore Probation of Offenders Act was applicable and therefore the benefit of that Act should have been given to the accused-petitioner. In my opinion, the legislature has taken care for such cases and NDPS Act has been made. May be that under the Opium Act the benefit of probation could be extended but looking to the trend of ever-rising offences, I am of the opinion that no such benefit should be given to the accused-petitioner. But the accused-petitioner has already undergone some sentence and in my opinion the sentence of imprisonment already undergone by him shall meet the ends of justice. 7. But the accused-petitioner has already undergone some sentence and in my opinion the sentence of imprisonment already undergone by him shall meet the ends of justice. 7. Consequently, I partly allow the revision petition While maintaining the conviction of the accused-petitioner under Section 4/9 of the Opium Act I sentence him to the period of imprisonment already undergone by him. He is on bail. He need not surrender to his bail bonds, which are hereby discharged.Petition partly allowed. *******