Judgment G.L. Gupta, J.-Mana Singh and Mahendra Singh have preferred these appeals calling in question their conviction under Section 8/15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 recorded by the learned Special Judge, N.D.P.S. Cases, Hanumangarh vide Judgment dt. 21-12-95. They were sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs. One lakh each, in default to undergo two years R. I. more. 2. Theprosecution case, in short, is that on 6-9-92 Sher Singh, Sub-Inspector, who was Station House Officer of Police Station Sangariya, along with the police party left the police station at 11 a.m. for patrol duty. At the bus stand, Sangariya, he was informed by a ‘Mukhbir’ that two persons one wearing white shirt and trousers and the other wearing red colour shirt - were taking poppy powder on the Sardulsahar road. Shri Sher Singh recorded this information and proceeded towards the Sardulsahar road along with ‘Motbirs’. He found two persons on the road, who, on asking, disclosed their names as Mana Singh and Mahendra Singh. Shri Sher Singh told them that he wanted to search them. He also informed them of their right to give their search in the presence of the Magistrate. The two persons told him that he could himself search them. They had two bags with them. Sher Singh smelling poppy powder, in the bags, took sample from both the bags and sealed them. He thereafter took the accused persons to the police station and registered a case. After the completion of the investigation a challan was filed. 3. The learned Special Judge framed charges Under Section 8/15 of the N.D.P.S. Act against both the accused who pleaded not guilty. The prosecution examined P.W.I Brijlal, P.W. 2 Rajhans, P.W.3 Shaltan Singh, P.W.4 Sher Singh and P.W.5 Girdhari Ram. Accused in their statements Under Section 313 Cr. P.C denied accusation. They did not examine any witness in defence. After hearing the counsel for the parties, the learned Special Judge, held that the poppy power was recovered from both the accused persons, for which they did not hold licence. He, therefore, convicted and sentenced them as stated above. 4. Thefirst contention of Mr. Kalla and Mr. P.C denied accusation. They did not examine any witness in defence. After hearing the counsel for the parties, the learned Special Judge, held that the poppy power was recovered from both the accused persons, for which they did not hold licence. He, therefore, convicted and sentenced them as stated above. 4. Thefirst contention of Mr. Kalla and Mr. Mehta was that Shri Sher Singh was not the Inspector of Police and therefore he was not authorised to take sample from the bags of the appellants and the entire proceedings are vitiated. According to them, the appellants are entitled to be acquitted on this ground alone. They referred to the Government Notification No. 50115 dt. 16-10-1986 and placed reliance on the case of Ram Swaroop vs. State of Rajasthan 1996 Raj Cri C 582: 1996 CriLJ 4059. Their further contention was that the compliance of Section 42(2) was not done and therefore on that ground also the appellants are entitled to acquittal. Reliance was placed on the case of State of Punjab vs. Balbir Singh 1994 SCC (Cr) 634 : 1994 CriLJ 3702. They also urged that there was non-compliance of Section 50 as the accused were not informed of their right to be searched in the presence of Gazetted Officer. 5. On the other hand Mr. Rathore supported the Judgment of the trial Court. He contended that it is amply proved on record that Shri Sher Singh was Station House Officer of the Police Station on 6-9-92 and therefore he was empowered to take samples. He submitted that the recovery was made from public place and therefore, Section 42 was not applicable. 6. I havecarefully considered the above arguments. Section 42 of the N.D.P.S. Act provides that an officer of the Police department can be empowered by the State Government by general or special order to make search and seizure under the Act. In exercise of the powers of Section 42 of the N.D.P.S. Act the State Government issued notification dt. 16-10-86 where in it was stated that all Inspectors of Police, and Sub-Inspectors of Police, posted as Station House Officer were authorised to exercise the powers mentioned in Section 42. It is not disputed Shri Sher Singh was not the Inspector at that time. However, the prosecution case is that he was Sub Inspector and was Station House Officer on 6-9-92 as the Inspector was out on duty. It is not disputed Shri Sher Singh was not the Inspector at that time. However, the prosecution case is that he was Sub Inspector and was Station House Officer on 6-9-92 as the Inspector was out on duty. Sher Singh in his statement deposes that the S.H.O. Shri Richhpal Singh was away on Government duty from 5-9-92 to 8-9-92 and he was Incharge of the Police Station on 6-9-92. He also proves the ‘Rojnamcha’ entry No. 354 Ex. P17 in this connection. It has come in his cross-examination that in the challan papers it has not been stated that Richhpal Singh, S. H. 0. was out on duty. On the basis of this fact this contention has been raised that Shri Sher Singh was not the Station House Officer on 6-9-92. 7. I do not find any substance in this contention. There is categorical statement of Shri Sher Singh that he was S.H.O. on 6-9-92 as Shri Richhpal Singh was out on Government duty. It is not of much significance that this fact has not been stated in the challan that Shri Richhpal Singh was away from the headquarters. In order to ascertain the truthfulness of the version of Sher Singh I have called the ‘Rojnamcha’. It starts from 6-9-92. There is entry in the ‘Rojnamcha’ on 8-9-92 at S. No. 66, which reads that Richhpal Singh, C. I. had returned from Govt. duty and he had left the police station on 5-9-92 vide entry No. 311. There is, therefore, no doubt in the correctness of the statement of Shri Sher Singh that he was S. H.O. on 6-9-92. 8. Thecase of Ram Swaroop (1996 CriLJ 4059) (supra) does not help the appellants as in that case the prosecution had not proved that the officer who conducted the search and seizure was working as S.H.O. which fact is amply proved in the instant case. The first contention of the learned counsel is thus without substance. 9. Coming to the second contention, it may be stated that this recovery was not made from any building, conveyance or enclosed place. The recovery was made from the public place and therefore Section 42 of the Act was not applicable. The seizure was in exercise of the power Under Section 43. The requirement of sending a report to the immediate superior is not there in Section 43 of the Act. The recovery was made from the public place and therefore Section 42 of the Act was not applicable. The seizure was in exercise of the power Under Section 43. The requirement of sending a report to the immediate superior is not there in Section 43 of the Act. Even if the SHO recorded the information of the ‘Mukhbir’ yet provisions of Section 42(2) were not applicable. This legal position is clear by the observations of their Lordships of the Apex Court in the case of State of Punjab vs. Balbir Singh 1994 CriLJ 3702 (supra) at para 10 of the report, which are reproduced hereunder (at page 3711 of CriLJ) :We may mention here that Section 43 which deals with the power of seizure and arrest in public places is slightly different from Section 42 in certain respects. Under this provision any empowered officer under Section 42 has the power to seize, detain, search or arrest in public place or in transit if he has reason to believe that an offence punishable under Chapter IV relating to such drug or substance has been committed and seize any document or other article which may furnish evidence of the commission of such offence and can seize any animal or conveyance or article liable to confiscation and can detain and search any person similarly. The empowered officer while acting under Section 43 need not record any reasons of this belief This section also does not mention anything about the empowered officer having prior information given by any person or about recording the same, as compared to Section 42. 9. In view of this legal position, the case relied on by learned counsel for the appellants is of no help to them. 10. Thecontention of non-compliance of Section 50 is also without substance. There is clear evidence on record that Shri Sher Singh informed both the appellants of their right of search in the presence of the Magistrate. This fact has been deposed by Sher Singh and also by H. C. who was present at the time of search and seizure. This fact is also borne out from the document Ex. P-2 in which it has been stated that the accused were informed of their right of search in the presence of the Magistrate. They refused to exercise their right and told that Sher Singh could make a search then and there. This fact is also borne out from the document Ex. P-2 in which it has been stated that the accused were informed of their right of search in the presence of the Magistrate. They refused to exercise their right and told that Sher Singh could make a search then and there. It is not the requirement of law that the accused should be given both the options of search viz, in the presence of Magistrate and Gazetted Officer. If one option was given it was sufficient in the eye of law Vide Manoharlal vs. State of Rajasthan 1996 (1) JT (SC) 480 : 1996 CriLJ 1367. Therefore, there was no contravention of Section 50 of the Act. 11. No other point was pressed. 12. Consequently, both the appeals are without substance and are dismissed.