JUDGMENT 1. - This appeal is directed against the judgment dated 12-5-93, passes by the Sessions Judge, Bhilwara, by which the learned Sessions Judge convicted and sentenced the accused-appellants for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act. 2. The appellants were tried by the learned Sessions, Judge, Bhilwara, for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act (in short, "the-Act). According to the prosecution case on 14-5-92, PW 6 Pramod Kumar Sinha, the District Excise Inspector, Narcotic Bureau Bhilwara, along with Raghunath Pandey and Ram Gopal Driver, was on general checking duty and was proceeding on a jeep to Octroi Post No. 2 of Bhilwara, at about 3.30 p.m. near Circuit House, Bhilwara. The Checking Pan saw two suspects standing near the Circuit House, Bhilwara, carrying a brief-case, some suspicion arose, the jeep was stopped and an enquiry was made from the suspects they disclosed their names as Manak Lal and Ganesh Ram. The brief-case, which they were carrying, was searched in the presence of two Motbir witnesses, viz., PW 1 Shanti Lal and PW 5 Shanker Lal. Before making the search the accused were informed that if they wanted to get themselves checked in the presence) a gazetted officer or a Magistrate tale search can made in their presence. The accused-appellants showed their desire that they have no objection if the search is made by Mr. Promod Kumar Sinha. Pramod Kumar Sinha and other members of the checking party thereafter gave their search to the accused and thereafter the search of the brief case carried by the accused, was made. On search, 6.850 kgs of opium was found in the briefcase. Two samples of 25 grams each were taken from the opium. The opium and the two samples were separately sealed and the accused were arrested. The sample of the opium was sent by Pramod Kumar Sinha for F.S.L. examination through PW 4 Prahlad, who deposited the same at the Forensic Science Laboratory, Nimach. After chemical examination, the sample was found to be that of opium. The prosecution, in support of its case, examined seven witnesses. PW 1 Shanti Lal and PW 5 Shanker Lal are the two Motbir witnesses, in whose presence the accused were searched, the opium was recovered and seized and the accused were arrested. After chemical examination, the sample was found to be that of opium. The prosecution, in support of its case, examined seven witnesses. PW 1 Shanti Lal and PW 5 Shanker Lal are the two Motbir witnesses, in whose presence the accused were searched, the opium was recovered and seized and the accused were arrested. PW 1 Shanti Lal is an employee of the Narcotics Department. Both these witnesses have not supported the prosecution case and they were declared hostile. PW 2 Raghunath Pandey was the member of the Checking Party, who along with Pramod Kumar Sinha, went on general checking duty in a jeep and saw the accused standing near Circuit House, Bhilwara, and who, on the directions of Pramod Kumar Sinha and in his presence, searched the briefcase and recovered the opium. PW 3 Ram Gopal was the driver of the Jeep, in which the checking party was proceeding towards the octroi post No. 2, Bhilwara, for general checking and in the way saw these two accused-appellants standing near the Circuit House, the jeep was stopped, the suspects were searched and on search the opium was found in the brief-case carried by the accused. PW 4 Prahlad is the Constable in the Excise Department, who took the sample for F.S. L. examination to the aforesaid laboratory at Nimach and handed-over the same at the Laboratory and obtained the receipt Ex. P.9 PW 6 Pramod Kumar Sinha was the Inspector in the Excise Department, who was on a general checking duty and while on checking duty on 14-5-92, he suspected the two persons (accused-appellants) who were standing near the Circuit House, Bhilwara, and carrying a brief-case. On suspicion being arose, the jeep was stopped and the enquiry was made from the accused and on search of the brief-case, 6.850 kgs. of opium was recovered. Two samples of 25 grams each were taken from the opium and the opium as well as the two samples were sealed and the accused were arrested. He thereafter lodged the report. The samples and the sealed opium were kept in his possession because the District Excise Officer, who was the in charge of the Double Lock, was on touring duty. The samples and the remaining sealed opium were deposited in the Malkhana. The sample was sent for chemical examination on the next day through PW 4 Prahlad-the Constable of the Excise Department. The samples and the remaining sealed opium were deposited in the Malkhana. The sample was sent for chemical examination on the next day through PW 4 Prahlad-the Constable of the Excise Department. The accused-appellants did not produce any evidence in defence. The learned Sessions Judge, after trial, convicted the accused-appellants for the offence under Section 8/18 of the Act and sentenced each of them to ten years rigorous imprisonment and a fine of Rs. 1,00,000/- each and in default of payment of fine further to undergo three years' rigorous imprisonment. It is against this judgment that the appellants have preferred this appeal. 3. It is contended by the learned counsel for the appellants that the mandatory provisions of Sections 42 and 50 of the Act have not been complied with and, therefore, the trial and the conviction of the appellants stand vitiated. It has, also, been contended by the learned counsel for the appellants that the samples and the remaining opium recovered from the appellants have not been produced in the Court and, therefore, it cannot be said that the sample, which was sent for chemical examination, was recovered from the appellants and was that of the opium. It has, also, been contended by the learned counsel for the appellants that there are material contradictions in the statements of the witnesses regarding the recovery of the opium, the packets which were sealed and the accused from whose possession the brief-case was recovered. Some of the witnesses have stated that the brief-case was recovered from the possession of accused Manak Lal while the other witnesses have stated that it was recovered from the possession of accused Ganesh Ram. It has, also, been contended by the learned counsel for the appellants that the Malkhana Register does not bear the signatures of PW 4 Prahlad, Constable, who took the sample for F.S.L. examination to the aforesaid Laboratory at Nimach. The investigation was conducted by the same person who had made the recoveries, arrested the accused and lodged the report. Lastly, it is contended that the link evidence that the seals on the samples remained intact throughout is missing. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below. 4. I have considered the submissions made by the learned counsel for the parties. 5. Lastly, it is contended that the link evidence that the seals on the samples remained intact throughout is missing. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below. 4. I have considered the submissions made by the learned counsel for the parties. 5. The first contention, raised by the learned counsel for the appellants, is that the compliance of Section 42 of the Act has not been made, which vitiates the trial. Section 42 of the Act requires that if any authorised person has reasons to believe from the personal knowledge or on the information taken down in writing that any offence punishable under Chapter IV of the Act has been committed by a person and has reasons to believe that the search warrant or authorisation cannot be obtained without affording opportunity for concealment of evidence or facility for the escape of the offence then after recording the grounds of his belief and dispatching the same to his immediate officer superior, he may enter into and search the building or the conveyance at any time between the Sun-set and the Sunrise and Section 43 of the Act empowers such officer to seize in any public place or there is in transit any narcotic drug or psychotropic substance, in respect of which he has reason to believe that any offence punishable under Chapter IV has been committed and shall, also, confiscate any conveyance along with such substance. In the present case, Section 42 of the Act is not applicable as PW 6 Pramod Kumar Sinha had no prior information regarding the commission of any offence under Chapter IV of the Act. He was on a general checking duty and during that duty, he suspected these two appellants and searched them and recovered the opium and, therefore, there was no question of recording the belief or information in writing. Section 42 of the Act is not applicable in such matters and, therefore, there was no question of recording the reasons or the belief. The contention, raised by the learned counsel for the appellants, is, therefore, devoid of any force. 6. The next contention, raised by the learned counsel for the appellants is that the compliance of Section 50 of the Act has not been made. The contention, raised by the learned counsel for the appellants, is, therefore, devoid of any force. 6. The next contention, raised by the learned counsel for the appellants is that the compliance of Section 50 of the Act has not been made. Section 50 of the Act casts a duty upon the authorised officer, who is about to search any person under the provisions of Sections 41.42 and 43 of the Act that if any such person so requires to take him to any gazetted officer mentioned in Section 42 of the Act or before the nearest Magistrate and if such request is made by the offender to be searched before them, the concerned officer may detain him until he is produced before such gazetted officer or the Magistrate. In the present case.i the accused-appellants were given an option that if they so desired the search can be made before a gazetted officer or a Magistrate but the accused showed their desire that they had no objection if they are searched by Pramod Kumar Sinha and thereafter the search was made in the presence of two Motbir witnesses.) This fact finds mention in the recovery memo EX. P. 3, which is also, signed by the accused- appellants. The compliance of Section 50 of the Act has, therefore, been made in the. present case. The contention, raised by the learned counsel for the appellants is, therefore, devoid of any force. 7. The next contention, raised by the learned counsel for the appellants is that there is a discrepancy in the statements of the various witnesses regarding the recovery of the brief' case and the sealing of the samples. PW2 Ragunath has stated that the brief -case was in the hands of Nanak Ram while Ram Gopal has stated that the brief-case was in the hand of Ganesh Ram and Ganesh Ram was standing by his side. There appears to be some typographical error in the statement of PW3 Ram Gopal regarding the name of the accused in whose possession the brief-case was found, because the sentence, which when translated into English, reads as under:- "The brief case was in the hand of Ganesh and Ganesh was standing by his side." This suggests that, in fact, the brief-case was in the hand of accused Manak Lal and accused Ganesh was standing by his side. Therefore f there is no material contradiction on this point. It seems that due to some typographical error the name of Ganehs was typed in placed of Manak Lal as the person in whose hand the brief-case was found. So far as the packing in which the samples of the opium were taken is concerned, PW2 Raghunath and PW6 Pramod Kumar Sinha have stated that the samples were taken in the polythene bags and this finds support from the report of the F.S.L. examination, in which it has been specifically mentioned that the sample was received ms polythene bag. So far as the statement of PW3 Ram Gopal regarding the seizure and sealing of the samples is concerned, though he has stated in the cross-examination that it was taken in the empty packet of cigarettes but this fact does not find mention in the recovery memo. This statement appears to have been given by PW3 Ram Gopal on account of some misunderstanding or due to lapse of memory. PW4 Prahlad, who took the sample for F.S.L. examination to the aforesaid Laboratory has, also, stated that the samples were in the empty cigarettes packet. His statement is based merely on the past practice of the checking parties to keep the samples in the empty cigarettes packets. He has stated that he has said so only on the past practice otherwise he has no knowledge that in which packet the samples were than. This discrepancy is, therefore, of no avail as the person, who had taken the samples and sealed them and the other persons, in whose presence the samples were taken and kept in possession, have stated that the samples were kept in the polythene bags. Thus, there is no material discrepancy in the statements of the prosecution witnesses. The contention, raised by the learned counsel for the appellants, is, therefore, devoid of any force. 8. The next contention, raised by the learned counsel for the appellants is that the search, seizure and the recoveries were made and the F.I.R. were lodged by the same person who, later on, conducted the investigation, which vitiates the whole trial and the conviction of the appellants stand vitiated and they deserve to be acquitted. I have gone-through the record. The next contention, raised by the learned counsel for the appellants is that the search, seizure and the recoveries were made and the F.I.R. were lodged by the same person who, later on, conducted the investigation, which vitiates the whole trial and the conviction of the appellants stand vitiated and they deserve to be acquitted. I have gone-through the record. Alter going through the record of the case, I am of the opinion that after the search, seizure, arrest and lodging the report, the investigation was made by PW6 Pramod Kumar Sinha. In view of the latest judgment of the Hon'ble Supreme Court in the State of Punjab v. Balbir Singh, 1994 (2) JT SC 108 , it is clear that the investigation can be conducted by the same person who has made the search, seizure, arrest and lodged the F.I.R. It has been held by the Supreme Court in The State of Punjab v. Balbir Singh , that:- "When a police officer carrying-on the investigation including search, seizure or arrest, empowered under the provisions of the Cr.P.C. comes across a person being in possession of the narcotic drug or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the Act, also, then he must follow thereafter the provisions of the N.D.P.S. Act and continue the investigation as provided thereunder. If, on the other hand, he is not empowered, then the obvious thing he should do is that he must inform the empowered officer under the N.D.P.S. Act who should thereafter proceed from that stage in accordance with the provisions of the N.D.P.S. Act." The position of law, which emerges from the judgment of Balbir Singhs case is that it is only the empowered officer who can conduct the investigation and if an empowered officer comes across a person being in possession of the narcotic drug or psychotropic substance and had made the search, seizure and arrested the accused under the Act then he can proceed with the investigation. It is not necessary, as per the view taken by the Hon'ble Supreme Court that it is only the other officer who should proceed with the investigation and the person, who has made the search or seized the article or arrested the accused or lodged the report, becomes dis-entitled to carry-on the further investigation. It is not necessary, as per the view taken by the Hon'ble Supreme Court that it is only the other officer who should proceed with the investigation and the person, who has made the search or seized the article or arrested the accused or lodged the report, becomes dis-entitled to carry-on the further investigation. The officer who has seized the article, arrested the accused and lodged the report, can be said to be a complainant only in a technical sense in view of the Explanation appended to sub-section (d) of Section 2 of the Act, which defines the word complainant.An inclusive definition of investigation has been given in sub-clause (b) to Section 2 of the Code of Criminal Procedure, according to which investigation includes all the proceedings under the Code for the collection of evidence. conducted by a police officer or by any person (other than a Magistrate) who is authorised by the Magistrate in this behalf. As per the definition, it consists of: (i) proceeding to the spot; (ii) the arrest of the suspected offender; (iii) the collection of evidence relating to the commission of the offence; (iv) the search of the place and seizure of the things; (v) ascertainment of the facts and circumstances and preparation of the site-plan etc.; (vi) recording the statements of various witnesses; and (vii) thereafter to form an opinion whether from the evidence collected by the investigating officer, any case to proceed with against the accused is made out. Thus, if after receiving the information from some secret source when the investigating officer proceeded towards the place to arrest the accused and to make the search and seizure and he found that some contravention of the provisions of the N.D.P.S. Act has been made then it is in the process of investigation. The Act does not envisage the investigation by two separate persons-one, upto the stage of arrest of the accused, search and seizure and thereafter by the another officer. The investigating Officer, who made the search, seized the article, arrested the accused and lodged the report, who was authorised under the N.D.P.S. Act to investigate, was. thus, competent to proceed with the investigation in view of the latest judgment of the Supreme Court in the case of the State of Punjab v. Balbir Singh . The investigating Officer, who made the search, seized the article, arrested the accused and lodged the report, who was authorised under the N.D.P.S. Act to investigate, was. thus, competent to proceed with the investigation in view of the latest judgment of the Supreme Court in the case of the State of Punjab v. Balbir Singh . There is no provision either in the N.D.P.S. Act or in the Code of Criminal Procedure, according to which any illegality or irregularity in the investigation would render the trial illegal. In the absence of any such provision, any irregularity or illegality in the investigation, thus, cannot vitiate the trial or conviction. The learned Sessions Judge has, therefore, not committed any illegality or irregularity in convicting and sentencing the accused-appellants and the appeal, filed by the appellants, deserves to be dismissed. 9. The next contention, raised by the learned counsel for the appellants is that the samples and the opium seized were not produced in the Court; which vitiates the trial. In support of its contention, learned counsel for the appellants has placed reliance over Valsula v. The State of Kerala, AIR 1994 SC 117 . In this case, i.e., Valsula v. the State of Kerala , on which reliance has been placed by the learned counsel for the appellants, the sample was sent for F.S.L. examination after a delay of more than three months and there was no evidence worth on record to suggest that the seized articles were kept in the Malkhana in the same sealed condition and, therefore, in those circumstances the Apex Court held that "there was no evidence whatsoever, at all, to show with whom the sealed articles were lying and assuming that it was in the custody of the Officer In-charge of the Police Station, who seized it, there is again no evidence to show whether it was seized and kept there." The Supreme Court further opined that the evidence adduced by the prosecution is wholly insufficient to conclude that what was seized from the appellant was sent for chemical examination. The evidence produced by the prosecution was found to be insufficient regarding search, seizure and sending the samples and the investigation was found to be perfunctory and it is only in that circumstances that the Apex Court had acquitted the accused. The evidence produced by the prosecution was found to be insufficient regarding search, seizure and sending the samples and the investigation was found to be perfunctory and it is only in that circumstances that the Apex Court had acquitted the accused. The judgment, on which reliance has been placed by the learned counsel for the appellants is distinguishable and is not applicable in the present case. In the present case there is specific evidence on the point in the form of evidence of PW2 Raghunath, PW3 Ram Gopal, PW6 Pramod Kumar Sinha and PW7 Ravindranath Yadav that the accused were) searched near the Circuit House, Bhilwara, and the opium was recovered from them. The opium as well as the samples were seized and sealed and PW6 Pramod Kumar Sinha has stated that the sealed articles remained in the 11 same sealed condition since the date of recovery till they were deposited with Ravindranath Yadav after his return from the tour. The, samples were sent for F.S.L. examination on the next day and PW4 Prahlad has specifically; stated that the samples were sent in a sealed condition and the seals on the samples remained intact throughout the period i.e., since the date they took them from Pramod Kumar Sinha till the same were deposited in the aforesaid Laboratory for F.S.L. examination. The report of the F.S.L. clearly shows that the seals on the sample tallied with the specimen seal and the seals were intact. The link evidence regarding the seals on the samples is, therefore, complete. The contention, raised by the learned counsel for the appellants, on this point, is, therefore, devoid of any force. 10. The next contention, raised by the learned counsel for the appellants is that the signatures of the carrier, i.e., PW4 Prahlad, were not found in the Malkhana Register relating to the Samples. It has been stated by PW6 Pramod Kumar Sinha that before the sample was sent for F.S.L examination, the register, was not available as PW 7 Ravindranath Yadav- the District Excise Officer-in whose possession the register was lying, was touring duty and, therefore, the entry in the register was made after his return from the touring duty. In this view of the matter, if there is no signatures of PW4 Prahlad Constable who took the sample for F.S.L. Examination to the aforesaid Laboratory at Nimach. In this view of the matter, if there is no signatures of PW4 Prahlad Constable who took the sample for F.S.L. Examination to the aforesaid Laboratory at Nimach. in the Malkhana Register then it was merely an irregularity as the sample was sent with out making an entry in the Malkhana Register and does not prejudice the case of the appellants in any way. 11. The next contention, raised by the, learned counsel for the appellants, is that the search and seizure were made by PW2 Raghunath, who was not an authorised officer under the Act to do so and, therefore, the whole trial stands vitiated. The contention, raised by the learned counsel for the appellants, is wholly devoid of any force because in the present case the recovery, search etc. were made in the presence of PW6 Pramod Kumar Sinha who was an authorised officer under the Act. It was as per the directions and instructions of Pramod Kumar Sinha that the search and seizure were made and PW2 Raghunath assisted him in this work and, therefore, the search and seizure cannot be said to be made by PW2 Raghunath and the same were actually made by PW6 Pramod Kumar Sinha. 12. In the result, I do not find any merit in this appeal and the same is hereby dismissed.Appeal dismissed. *******