JUDGMENT Kuldip Chand Sood, J.—This Jail appeal arises out of the judgment of the learned Sessions Judge Kullu dated April 22, 2002 whereby the respondent, hereinafter referred to as "the accused" was convicted for offences punishable under Sections 18 and 20 of the Narcotic Drugs and Psycho tropic Substances Act, 1985, (Act for short) and sentenced to suffer: (a) Rigorous imprisonment for five years and a fine of rupees two lacs. In case of default in the payment of fine, to suffer further imprisonment for six months for the offence under Section 18 of the Act and. (b) Rigorous imprisonment for five years and fine of rupees 2 lacs and in case of default in the payment of fine, further imprisonment for six months. 2. Both the sentences were directed to run concurrently. Prosecution case: 3. On September 27, 2001, Assistant Sub Inspector Kanwar Singh, Incharge, Police Post Bhuntar had laid nakka at Dalasni bridge. At about 5.30 a.m. he received secret information that a person travelling in a three-wheeler with registration No. HP-05/1626 coming from Tharas side was carrying Charas. This information was reduced in writing (Exhibit PW1/ A) by Assistant Sub Inspector Kanwar Singh and sent to the Office of the Superintendent of Police, Kullu, through constable Chand Parkash (PW2). A three-wheeler (HP-05-1626) was intercepted at Nakka at about 5.50 a.m. This vehicle was being driven by Jeet Ram (PW6). Accused was sitting on the back seat with a bag on his lap. Assistant Sub Inspector conveyed to the accused, his intention to search the bag, he was carrying and asked him if he wanted to be searched in the presence of a Gazetted Officer or Magistrate. Accused opted and consented in writing for his search by the Police by a memorandum Exhibit PW6/B. A.S.I. Kanwar Singh (PW8) gave his search to the accused by a memorandum Exhibit PW6/A. Thereafter, he searched the bag carried by the accused. From the bag, wrapped in a muffler, two polythene packets were recovered. One of the packets contained Charas and the other opium. The Charas weighed to be 800 gms. And the opium 50 grams. The samples were drawn separately from Charas as well as opium and the remaining contents were sealed in two different packets. From the bag, wrapped in a muffler, two polythene packets were recovered. One of the packets contained Charas and the other opium. The Charas weighed to be 800 gms. And the opium 50 grams. The samples were drawn separately from Charas as well as opium and the remaining contents were sealed in two different packets. Proceedings were drawn by a memo Exhibit PW6/C. Information, by ruka Exhibit PW8/A, was sent to the Police Station Kullu for registration of the case on the basis of which a formal F.I.R. Exhibit PW4/A was recorded by Sub Inspector Kaur Singh (PW4). A special report was prepared and handed over by Kanwar Singh Sub Inspector to the Deputy Superintendent of Police. Samples so drawn were sent to the Chemical Examiner who found the samples to be that of Charas and opium. 4. Learned Sessions Judge by the impugned judgment found that the recovery of Charas as well as opium as claimed by the prosecution was in fact made from the bag carried by the accused in the three-wheeler and accordingly convicted and sentenced the accused, as notice above. 5. Dis-satisfied, the appellant is in appeal. 6. As Counsel, appointed by the accused, withdrew from the case on the instructions of the accused and accused represented that he was in no position to engage another Counsel, Mr. Anup Chitkara, Advocate was appointed as Counsel for the accused. 7. Heard Mr. Anup Chitkara, learned Counsel for the accused and Mr. Ashok Chaudhary, learned Additional Advocate General. 8. The entire evidence was reappraised with the assistance of learned Counsel for the accused and the learned Additional Advocate General. 9. So far the question of recovery of the contraband from the bag carried by accused is concerned, it is not disputed. 10. It is the evidence of both A.S.I. Kanwar Singh (PW8) and L.H.C. Tara Chand (PW7) that at about 5.50 a.m., three-wheeler No. HP 05-1626 was stopped at Naka. The Driver of the three-wheeler disclosed his identity as Jeet Ram. Accused was found sitting with a bag on his lap on the rear seat and gave his name as Naginder Pal. Accused was then informed about the information to the effect that he was carrying contraband. The Driver of the three-wheeler disclosed his identity as Jeet Ram. Accused was found sitting with a bag on his lap on the rear seat and gave his name as Naginder Pal. Accused was then informed about the information to the effect that he was carrying contraband. He was asked if he wanted to be searched before a Magistrate or a Gazetted Officer but accused preferred to be searched by the Police, as is apparent from the Memo Exhibit PW6/B. It is the evidence of Sub Inspector Kanwar Singh that no independent witness could be associated with the search as it was early hours in the morning and the place was isolated. From the search of the bag, it is the evidence of both these witnesses, two polythene packets wrapped in a muffler were recovered. One of the packets contained Charas while the other packets contained opium. Both the Charas and opium were weighed which were found to be 800 gms. and 50 gms. respectively. Two samples of 25 grams each were separately taken from the Charas and sealed in an empty cigarette packet. Similarly two separate samples of 10 grams each were taken, packed and sealed. The remaining Charas and opium were separately packed and sealed in packets. NCB forms were filled. Specimen seal impressions were taken. Memorandum Exhibit PW6/C regarding the proceedings of seizure was drawn. Ruka Exhibit PW8/A was prepared and sent to the Police Station for registration of the case. 11. It is interesting to note that accused put a suggestion that Jeet Ram was driving the three-wheeler from Panarsa side to Tharsa when it was intercepted and he was forcibly made the witness and that the Charas or opium were not recovered from the bag of the accused meaning thereby that interception of the three wheeler is not disputed. Another suggestion given to LHC Tara Chand was that all the papers were prepared in the Police Post and that three wheeler in fact was intercepted at 8.00 a.m. and not 5.30 a.m. 12. Though the driver of the three-wheeler Jeet Ram (PW6) went hostile and denied the recovery of contraband from the bag of the accused, he however, admits that memo Exhibit PW6/A and consent memo Exhibit PW6/B contained his signatures as witness. He also admits "it is correct that from the bag two packets wrapped in a muffler were recovered. Though the driver of the three-wheeler Jeet Ram (PW6) went hostile and denied the recovery of contraband from the bag of the accused, he however, admits that memo Exhibit PW6/A and consent memo Exhibit PW6/B contained his signatures as witness. He also admits "it is correct that from the bag two packets wrapped in a muffler were recovered. One packet was having Ch&ras and another opium. Charas on weighing found 800 grams and opium 50 grams". 13. Thus from the evidence on record, it is proved beyond any reasonable doubt that the contraband Charas and opium were recovered from the bag carried by the accused in a three-wheeler, 14. The only contention raised by Mr. Anup Chitkara is that the trial is vitiated as provisions of Section 42 (1) and (2) were not complied with. Section 42 of the Act reads: "42. The only contention raised by Mr. Anup Chitkara is that the trial is vitiated as provisions of Section 42 (1) and (2) were not complied with. Section 42 of the Act reads: "42. Power of entry, search, seizure and arrest without warrant or authorization.—(l)Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacturing thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detail and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior". 15. The argument is that in the present case, Authorised Officer, Sub Inspector Kanwar Singh had the information given by his source, which was taken down in writing and sent to the Superintendent of Police Kullu that the contraband was being carried by a passenger in the three-wheeler. As the search was taken between the hours of sunset and sunrise, therefore, it was obligatory for Sub Inspector Kanwar Singh to have recorded his belief and send the same, within 72 hours to his immediate superior under proviso to Section 42 (1) and (2) of the Act. These provisions being mandatory, any contravention thereof vitiates the trial. 16. It is settled law and no longer res Integra that when an Authorised Officer has reasons to believe from personal knowledge or information received by him and taken down in writing to the effect that any Narcotic drug or psychotropic substance is kept or concealed then he may detain, search and arrest any person whom he has reasons to believe to have committed an offence under the Act. However, under proviso to Section 42 (2) if the search is carried out between sunset and sunrise, the Authorised Officer must record the grounds of his belief. Admittedly in the present case, the search was carried between sunset and sunrise and no grounds of belief were recorded by Sub Inspector Kanwar Singh. 17. At first blush it appears that the trial is vitiated for want of compliance with Section 42 (1) and (2) of the Act but on deeper consideration, it is apparent that Section 42 of the Act is not applicable to the facts of the case. In the present case, the Charas was being carried in three wheeler, i.e. conveyance and therefore, procedure renting to the search as provided under Section 43 of the Act would be applicable. Section 43 reads: "43. In the present case, the Charas was being carried in three wheeler, i.e. conveyance and therefore, procedure renting to the search as provided under Section 43 of the Act would be applicable. Section 43 reads: "43. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in Section 42 may— (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, alongwith such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.—For the purposes of this Section, the expression "public place" includes any public conveyance, hotel, shop or other place intended for use by, or accessible to, the public". 18. A perusal of Section 43 shows that Section 43 is attracted when seizure of the contraband and arrest of the offender is made at public places including contraband in transit in a conveyance. For the purpose of this Section, as provided in the explanation, the expression "public place" would include any public conveyance, hotel, shop, or other place intended for use by or accessible to the public. 19. A contraband would be in transit, when it is being transported by some means adopted for causing its movement from one place to other or when it is transported through a conveyance private or public. 19. A contraband would be in transit, when it is being transported by some means adopted for causing its movement from one place to other or when it is transported through a conveyance private or public. Therefore, search seizure and arrest made under Section 43 would not attract the provisions of Section 42 which mandates an Authorised Officer to record his information in writing and send the same to his immediate superior within 72 hours and also to record his grounds of belief under proviso to Section 42 (1) and send the same to his superior again within 72 hours under sub-section (2) to Section 42 of the Act. It is significant to note that Section 42 speaks of search of building, conveyance or place, whereas, Section 43 provides for the seizure of the contraband and arrest of the offender at public places or in transit. 20. In my view, if the information in possession of the Authorised Officer relates to the keeping of the contraband in "concealed condition" in a building, conveyance or in close place, then Section 42 would be attracted but if the information is that the contraband is in "transit" or in a public place as defined in the explanation under Section 43 which may have relation to its being in transit, the search, seizure and arrest would be under Section 43 of the Act and not circumscribed by the provision of Section 42 of the Act. 21. In the present case, the recovery admittedly has been made from the bag carried by the accused when the contraband was in "transit", therefore, Section 43 of the Act is applicable. It was not necessary for the Authorised Officer to have recorded any reason for his belief as contemplated under proviso to (1) of the Act. I draw support for the view I have taken from State of Punjab v. Balbir Singh, 1994 (3) SCC 299. Their Lordships held in Balbir Singh that the empowered Officer when acting under Section 42 records grounds of his belief on the basis of personal knowledge or take down in writing the information about the commission of the offence under the Act. Their Lordships held in Balbir Singh that the empowered Officer when acting under Section 42 records grounds of his belief on the basis of personal knowledge or take down in writing the information about the commission of the offence under the Act. He has to send a copy thereof to his immediate superior Officer but such Officer acting under Section 43 is not required to record reasons for his belief if he has prior information from any person, it is also not required to be reduced in writing and its transmission to the superior Officer. 22. In this case, as noticed earlier, the search, seizure and arrest were made when contraband was in "transit" and not, as concealed, in a conveyance or enclosed place. Therefore the provisions of Section 43 and not of Section 42 of the Act are attracted. In the fact situation, the Police Officer was not bound to act under the mandate of Section 42 as contended by Mr. Chitkara. 23. The inescapable conclusion is that the conviction of the accused for offences punishable under Sections 18 and 20.of the Act has rightly been recorded by the learned trial Judge and calls for no interference. 24. Learned Counsel for the accused lastly urged that as the quantity of the Charas and the opium, recovered from the accused in transit, was not commercial, therefore, the sentence imposed is harsh particularly in view of the amended provisions of the Act. 25. Under the amended provisions, minimum sentence is not prescribed for the offences punishable under Sections 18 and 20 of the Act involving less than commercial quantity It is now settled position, in view of the amendment of the Act vide amending Act of 2001, that the benefit of the amended provisions would also be available in cases pending in appeal (See: Tom Marshall v. State of H.R, 2003 (3) Sim.L.C. 433; Sat Pal v. State of Himachal Pradesh, Criminal Appeal No. 586 of 2001 decided on 19.5.2003). 26. In the present case, the quantity of the Charas recovered from the accused was 800 grams (less than the commercial quantity) and recovered opium being 50 grams is also less than the commercial quanity. The accused is not a previous convict. He is in custody since his arrest on September 27, 2001. 26. In the present case, the quantity of the Charas recovered from the accused was 800 grams (less than the commercial quantity) and recovered opium being 50 grams is also less than the commercial quanity. The accused is not a previous convict. He is in custody since his arrest on September 27, 2001. Taking into consideration the facts and circumstances in its entirety and the amended provision with regard to the sentencing under Sections 18 and 20 of the Act, I am of the opinion that the sentence imposed on the accused is on the higher side and derserves to be reduced. The sentence imposed on the accused, in the facts of the case, is reduced to Rigorous Imprisonment for two years and fine of rupees 20,000/- both for the offence under Sections 18 and 20 of the Act. 27. In result, the appeal is partly allowed, the conviction of the accused for the offences punishable under Sections 18 and 20 of the Act are maintained. However, the sentence imposed upon the accused by the learned Sessions Judge is modified and reduced to rigorous imprisonment for two years and fine of rupees 20,000/- for the offence punishable under Section 18 of the Act and Rigorous Imprisonment for two years and fine of rupees 20,000/- for the offence punishable under Section 20 of the Act. In case of default in the payment of fine, the accused shall undergo rigorous imprisonment for a further period of four months in each case. Both the sentences shall run concurrently. Needless to say that accused shall be entitled to the benefit of set off, under Section 428 of the Code of Criminal Procedure, for the period during which he remained in custody. This appeal is accordingly disposed of. 28. An authenticated copy of the judgment shall immediately be transmitted to the Superintendent of the Jail where accused is presently lodged and also to the accused.