Judgment S.P. Pathak, J.-The appellant has filed this appeal against the Judgment of conviction and order of sentence dated 07.01.2000 passed by learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No.305/97, whereby the accused-appellant has been convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced him to 15 years R.I. and a fine of Rs.2 lacs, in default of payment to further undergo one months R.I. .2. Briefly stated, the facts of present case are that on 04.05.1997 Ambalal (PW. 18), while posted as Sub-inspector, Police Station Kotwali, Chittorgarh, received a secret information Exhibit P/10 from Mukhbir that one Ambassador car bearing No.RJ-27C-1802 containing opium will be passing through Chittorgarh. On that day, SHO of the police station was Shri Ganpat Singh (PW. 19) but since there was visit of one of the State Ministers of Rajasthan, he had gone out at about 6:00 AM on the security duty of that State Minister and the charge of Police Station, Kotwali was handed over to Ambalal(PW. 18). Entry in Rojnamcha register Exhibit P/24 was made in this regard. The secret information from Mukhbir, which was received at about 10:00 AM was entered in Rojanamcha Exhibit P/25 and the secret information (Exhibit P/10) was sent to S.P., Chittorgarh vide dispatch No.5171-72 through Constable Thawar Chand(PW. 8), who after handing-over the same to the S.P. and Dy.S.P. Circle Chittorgarh, obtained carbon copy of the same, which is Exhibit P/11. Ambalal (PW. 18) on the basis .of the secret information started from police station along with Babulal ASI, Satya Narayan ASI, Bhagwanlal HC No. 560, Satya Narain Constable No. 1278, Devendra Singh Constable No. 735 and Prema Ram Constable No. 271 for Nakabandi. Motbirs were also intimated about the said information, who in the present case are Ramavtar (PW. 9) and Jagdish Paliwal (PW. 17). 3. During the course of Nakabandi, at about 10:30 AM one black Ambassador car bearing NO. RJ-27C-1802 was seen coming from Gambhir river over-bridge which was stopped. The car was stopped and on asking about his name to the driver of the car, he disclosed it as Ramlal s/o Shankerlal. Accused Ramlal was then informed about the secret information and told that there was an information that there was opium in his car and for that search was to be undertaken. The car was stopped and on asking about his name to the driver of the car, he disclosed it as Ramlal s/o Shankerlal. Accused Ramlal was then informed about the secret information and told that there was an information that there was opium in his car and for that search was to be undertaken. The accused was given notice Exhibit P/14 under Section 50 of the Act and was asked whether he wanted the search to be taken by a Magistrate or a gazetted officer or to the police officials and in turn he showed his willingness to give search to Ambalal (PW. 18). The accused also agreed for the search of his car by Ambalal (PW. 18). Before search, on account of paucity of time, though warrant was not obtained as required under Section 42 of the Act, a memo Exhibit P/13 was prepared mentioning reasons therein for not obtaining the same. PW. 18 Ambalal, thereafter gave his search to the Motbir witnesses. Search of remaining police personnel of raiding party was also taken by the Motbir witnesses. After that when the car was searched, nothing was found in the car but smell of opium was felt thereby the raiding party. The accused was then asked to open the dashboard of the car and on opening of the same in an empty space a cloth bag was seen which was stitched by niddle and thread. On opening the bag, five ragzin bags were found, the mouth of which were tightened by thread and when same were further opened then polythene bags were found therein and when those black polythene bags were opened, black thick material was found in them. All the five bags contained black thick material. On the basis of smell and touch, the material was found to be opium by the raiding party. Accused Ramlal was asked about the licence for transporting the contraband material. The accused replied that opium was of one Ratanlal, resident of Vijaypur, who got down from the car in the town on the pretext that some purchases were to be made by him. The accused stated that he was owner of the car. The opium was seized and Babulal, ASI was sent for bringing the weight measurements. The accused replied that opium was of one Ratanlal, resident of Vijaypur, who got down from the car in the town on the pretext that some purchases were to be made by him. The accused stated that he was owner of the car. The opium was seized and Babulal, ASI was sent for bringing the weight measurements. On weighing the four polythene bags, weight of each polythene bag alongwith recovered material was found to be 4kgs and 750 gms and weight of fifth bag alongwith recovered material was found to be 6Kgs and 500 gms. The total weight of recovered contraband material was found to be 25 Kgs and 500 gms. Two samples of 30 gms from each bags were taken and kept in tin boxes. Thereafter, the same were kept in different polythene bags and all the five polythene bags were sealed. The bags were marked A to E and the samples were marked as A-1, A-2, B-1, B-2, C-1, C-2, D-1, D-2 and E-1, E-2. The seizure memo Exhibit-P/15 was prepared and the signatures of the Motbirs and members of the raiding party were obtained. The accused was arrested through memo Exhibit-P/22 and the car found in transporting Opium was seized through seizure memo Exhibit-P/23. The memo of impression of the seal on the samples seized Exhibit-D/4 was prepared, which contains impression of seal. The seal was handed over to one of the Motbirs PW. 17 Jagdish in a closed envelope. The memo Exhibit P/16 was prepared of handing-over the seal used at the time of seizure. At about 11:15AM, after returning to the police station, Fard Parcha Exhibit P/27 in relation to offence committed by the accused was prepared and a regular FIR Exhibit P/17 on the basis of Exhibit P/26 was chalked out and a case NO.299/97 under section 8/18 of the Act was registered against the accused appellant. The recovered opium and samples thereof in the sealed condition were handed-over to Bhagwanlal (PW. 16), Malkhana incharge and the entries were also made in this regard by Bhagwanlal in the Malkhana Register Exhibit P/20. A detailed information under section 57 of the Act was sent to the SP and Dy SP, chittorgarh, carbon copy of the same is Exhibit P/28. The samples were sent for examination in the FSL and the report Exhibit P/29 was received. 4. A detailed information under section 57 of the Act was sent to the SP and Dy SP, chittorgarh, carbon copy of the same is Exhibit P/28. The samples were sent for examination in the FSL and the report Exhibit P/29 was received. 4. In the FSL report Exhibit P/29, the samples sent for examination after examination gave positive test for the presence of chief constituents of coagulated juice of opium poppy. .5. After investigation, police filed challan against accused appellant and also against four persons namely Ratanlal Mali, Okarlal Regar, Ratanlal Khatik and Ramchandra Kumhar. Against Ramlal and co-accused Ratanlal Mali charge-sheet was filed under Section 299 CrPC The case came up for trial before learned Special Judge, NDPS Cases, Chittorgarh, where, after hearing both sides, charges were framed against the appellant for the offence under Section 8/18 and under Section 8/29 of the Act against co-accused Onkarlal Regar, Ramlal Khatik and Ramchandra. As the accused denied the charges .and claimed trial, the prosecution produced as many as 20 witnesses in support of its case and got exhibited 38 documents (Exhibit-P/1 to Exhibit-P/38). 6. After close of prosecution evidence, statements of accused under Section 313 CrPC were recorded. Accused denied the prosecution case and stated that they are innocent and have been falsely implicated. In defence, DW. 1 Mohd. Alsaya has been examined. 7. The learned trial Court, after hearing both side, acquitted Ratanlal, Onkarlal and Ramesh Chandra but convicted the accused-appellant as indicated hereinabove. 8. Aggrieved by the Judgment of conviction and order of sentence, the present appeal has been preferred by the appellant. 9. The learned Counsel for accused appellant raised various contentions in this case which I propose to deal one by one hereunder. First contention: 10. The first contention of the learned Counsel was that in the instant case the seizure memo Exhibit P/15 has been prepared and secret information Exhibit P/10 has been recoded by an officer who was not SHO at the relevant time and was also not posted as SHO. According to the learned Counsel, the trial in the present case is vitiated as PW. 19 Ganpat Singh was the SHO of the police station concerned on the relevant date but he had gone in the security duty of a minister and PW. 18 Ambalal, who has made seizure in the case, was holding only the temporary charge of the police station. 19 Ganpat Singh was the SHO of the police station concerned on the relevant date but he had gone in the security duty of a minister and PW. 18 Ambalal, who has made seizure in the case, was holding only the temporary charge of the police station. He drew my attention to the Standing Order 115 published in the Rajasthan Gazette, Extra, Part IV-C(II) dated 16th October 1986 vide notification F.1(3)FD/EX/85-1 dated 110.1986 in this connection. In support of his submission, the learned Counsel placed reliance on Bherulal vs. State of Rajasthan, 2004 (1) CrLR (Raj.) 613 and a Judgment of this Court delivered in Hem Raj and others vs. State of Rajasthan S.B. Criminal Appeal No.932/2002, decided on 02.04.2004. He also referred to the statement of PW. 18 Ambalal and Exhibit P/24 which is the Rojnamcha and copy thereof is Exhibit P/24A. .11. The learned Public Prosecutor submitted that since PW. 18 Ambalal was holding the charge in the absence of SHO, he for all purposes was the SHO. .12. I considered the submissions made before me. .13. To resolve the controversy, it shall be proper to reproduce here Notification No. F.1(3)FD/EX/85-a dated 110.1986 and the relevant Section 42 of the Act. Standing Order 115 reads as under:- .“S.O. 115-In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No.61 of 1985) the State Government hereby authorise all Inspectors of Police, and Sub-Inspectors of Police posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with immediate effect: Provided that when power is exercised by police officer other than Police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or S.H.O. of the police station concerned”. 14. The Standing Order 115 authorizes all the Inspectors of Police and Sub-Inspectors posted as Station House Officers to exercise the powers mentioned in Section 42 imposing a condition that when power is exercised by a Police Officer other than Police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or SHO of the police station concerned. 15. 15. Section 42 the Act which deals with power of entry, search, seizure and arrest without of authorization, reads as under:- "42.Power of entry, search, seizure and arrest without warrant or authorisation,- (1) 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 or of the Border Security Force 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 personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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) such drug or substance and all materials used in the manufacture 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 Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance : Provided that if such officer has reason to believe that a search warrant or authorisation 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 forthwith send a copy thereof to his immediate official superior." 16. A perusal of the above Section 42 reveals that this Section 42 enables certain officers duly empowered in this behalf by the Central or State Government, as the case may be, to enter into and search any building, conveyance or enclosed place for the purpose mentioned therein without any warrant or authorization provided that such officer has reason to believe that in obtaining the search warrant the offender may get an opportunity to escape or may conceal the evidence then he after recording reasons thereof shall forthwith send the copy of the same to his superior officer. 17. A perusal of above notification and the section reveals that the authorities relied and cited by the learned Counsel are clearly distinguishable as I will discuss now. 18. In the case of Bherulal, a reference has been made to Sajan Abraham vs. State, 2001 (6) SCC 692, wherein it has been observed:-“In construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply with. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The court however while construing such provisions strictly should not interpret them so literally so as to render their compliance impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out”. 19. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out”. 19. Thus, from the observations made by the Honble Court it appears that the mandate of any provision which is mandatory one has to explain it with a pragmatic approach but at the same time if its compliance becomes impossible and making compliance may result in injustice and the offender may get an opportunity to escape from the clutches of law, then in such circumstances it cannot be said that non-compliance of a particular provisions is fatal to the prosecution and the case of the prosecution is not required to be thrown out on that count. 20. In the case of Chhunna alias Mehtab vs. State of M.P., 2002 (9) SCC 363 relied in the case of Bherulal, the search of the premises took place between sunset and sunrise and the Honble Supreme Court in Para 2 of the Judgment observed as under:- “It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3:00 AM. This being the position, the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search warrant or authorisation was obtained nor were the grounds for possible plea that if opportunity for obtaining search warrant or authorisation is accorded the evidence will escape indicated. In other words, there has been a non-compliance with the provisions of the proviso to Section 42 and therefore, the trial stood vitiated.” 21. The present case is different. Here, in this case, Ganpat Singh (PW . 19) on 04.05.1997 was SHO Kotwali and on account of State Ministers visit he was in his security duty after handing over his charge to PW . 18 Ambalal, the Sub-Inspector of Police. Entry in this regard was made in Rojnamcha Aam Exhibit P/24 and copy of which is Ex/P/24A. Here, in this case, Ganpat Singh (PW . 19) on 04.05.1997 was SHO Kotwali and on account of State Ministers visit he was in his security duty after handing over his charge to PW . 18 Ambalal, the Sub-Inspector of Police. Entry in this regard was made in Rojnamcha Aam Exhibit P/24 and copy of which is Ex/P/24A. In these circumstances, in my opinion, if the SHO for one or another reason is not available in the police station and in his place some other person has been handed over the charge of SHO, then it is not required of any special or general order to be issued regarding his posting. In such circumstances, if a public official holding charge of a Police Station temporarily receives a secret information regarding commission of offence particularly of the nature of one under the NDPS Act then he cannot wait for the arrival of the SHO as that may result in giving opportunity to the offender to escape. My this view finds support from a decision of this Court reported in 1996 CrLJ 4059 Ram Swaroop vs. State of Rajasthan. In para 4 of the Judgment , it has been observed as under:- “Section 42 of the NDPS Act lays down that any officer of the department mentioned in this section superior in rank to peon, sepoy or constable empowered in this behalf by general or special order by the Central or State Government as the case may be, may take action as provided under Section 42 of the NDPS Act and conduct search and seize narcotic drugs of psychotropic substances or any documents or other articles which may furnish evidence of commission of such offence as mentioned under Chapter 4 of NDPS Act. State Govt has empowered by Notification S.O. 115 dated 110.86 all the Sub-Inspectors posted as SHO to act under Section 42 of the NDPS Act. I am of the view that the posting of SHO may be by special order general order also. If a SHO of Police Station is out of the Police Station and if Sub-Inspector is working in his absence as in charge SHO Police Station then that Sub-Inspector is SHO for all purposes and he will be deemed to have been posted as such by general order making arrangement for work by Sub-Inspector as in charge of police station. If a SHO of Police Station is out of the Police Station and if Sub-Inspector is working in his absence as in charge SHO Police Station then that Sub-Inspector is SHO for all purposes and he will be deemed to have been posted as such by general order making arrangement for work by Sub-Inspector as in charge of police station. No separate or specific order is again necessary for posting him as Station House Officer. The Sub-Inspector though in charge, is SHO as posted there and he is, therefore, empowered to act under Section 42 of the NDPS Act”. .22. The Honble Division Bench of Bombay High Court in Joseph Fernandes vs. State of Goa, 1996 CrLJ 822 while considering the provisions of Section 53 of the NDPS Act in Para 7 of the Judgment observed as under:- .“The learned Public Prosecutor in fact rightly contended that any irregularity in the investigation by itself does not vitiate a trial unless the investigation is done contrary to the mandatory provisions of law or that any prejudice is caused to the appellant. It is not necessary to consider the point in detail since the matter is covered by a decision of a Division Bench of this High Court which was brought to our notice by the learned Public Prosecutor. In a recent unreported Judgment of a Division Bench of this Court dated 13th July, 1995 in Criminal Appeal No.28/94 (Dilkush Ganpat Sinai v. State of Goa), a similar or identical question was canvassed. Then, the Division Bench referred to an unreported decision of a learned single Judge of this Court in Criminal Miscellaneous Application No. 134/92 (Rodney E. Joseph v. State of Goa) delivered on 28th August, 1992, and endorsed the view of the learned single Judge in the following words: “. . . a learned Single Judge of this Court held that the investigation done by the Anti-Narcotic Cell despite the fact that it was not declared as a police station and its officers were not invested with the powers of Officer-in-charge of the Police Station, did not render the investigation null and void or vitiate the trial unless it was shown that the accused was prejudiced as a result of the alleged irregularity in this behalf . We are of the same view. We are of the same view. We are not satisfied that the accused suffered any prejudice or that there was any miscarriage of Justice merely because the investigation of the offence was conducted by P.S.I. Poduvai (PW. 3)” We respectfully agree with the above observations. Even in the present case nothing is pointed out to us as to how any prejudice was caused by the continuation of investigation by the Sub-Inspector of Anti-Narcotic cell and not by the Sub-Inspector of Calangute Police Station. We do not find that any miscarriage of Justice has been done by Smt. Sunita continuing the investigation. As already pointed out, as far as the appellant is concerned, no further investigation is done except the first recovery and subsequently getting the report from the Chemical Examiner.” .23. In view above pronouncements and particularly taking into consideration the fact that Honble Apex Court in the case of Sajan Abraham (supra) has clearly observed, as discussed above, that the .courts while construing such provisions should not strictly interpret them so as to render their compliance impossible, however, before drawing such an inference it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. The cases of Sajan Abrahm (Supra) and Chhunna (Supra), which were considered in Bherulals case, infact, do not say that in the circumstances like in the present case if a person holding the charge of the SHO receives a secret information and recovers contraband materials then such seizure would vitiate the trial. 24. In view of above, I do not find any substance in the contention of the learned Counsel that in view of the statement of PW. 19 Ganpat Singh and PW. 18 Ambalal and also in view of Exhibit P/24A wherein it has been admitted that PW. 18 Ambalal was neither posted as SHO nor was SHO Police Station, for non-compliance of the mandatory provisions the trial in this case is vitiated and with due respect, I differ with the views taken by learned Single Judge in the case of Hemraj & Ors. Second Contention: 25. 18 Ambalal was neither posted as SHO nor was SHO Police Station, for non-compliance of the mandatory provisions the trial in this case is vitiated and with due respect, I differ with the views taken by learned Single Judge in the case of Hemraj & Ors. Second Contention: 25. The second contention of the learned Counsel in the present case has been that the information under Section 42 of the Act is alleged to have been sent through PW. 8 Thawar Chand, who has stated that Exhibit P/10 secret information received by PW. 18 Ambalal was delivered to three superior officers whereas Exhibit P/11 (carbon copy of information) contains the signatures of only two recipients i.e. S.P. & Dy. S.P. He contended that as per the statement of PW. 8 Thawar Chand, he started from Police Station at 10 AM and came back at the police station at 11 AM whereas on Exhibit P/11 there appears mention of 4 PM. According to learned Counsel, the information Exhibit P/11 thus appears to have been prepared later on, therefore, there is no compliance of Section 42 of the NDPS Act. 26. The Public Prosecutor in his turn contended that requirement of Section 42 of the Act was complied with and infact mention of time 4 PM on Exhibit P/11 at one place does not itself makes the compliance of Section 42 of the Act doubtful in view of statements of PW. 8 Thawar Chand and other witnesses. 27. I have examined the above submissions. PW. 8 Thawar Chand, has stated that while he was posted as Constable in Kotwali, Chittorgarh on 04.05.1997, at about 10 in the morning, PW. 18 Ambalal had given him the written information under Section 42 of the NDPS Act. The information was taken by him and delivered to S.P., Addl. S.P., and Dy.S.P. The witness has proved the memo of the information Exhibit P/10 and signatures obtained of senior police officers on the carbon copy of the information Exhibit P/11. Nothing has been asked from this witness in the cross-examination regarding explanation of mentioned time 4 PM on Exhibit P/11 at place A to B. A perusal of Exhibit P/11 indicates that a secret information was received by PW. 18 Ambalal, Incharge of the Police Station on 04.05.1997 to the effect that one Ambassador Car containing opium will pass through Chittorgarh. 18 Ambalal, Incharge of the Police Station on 04.05.1997 to the effect that one Ambassador Car containing opium will pass through Chittorgarh. As the source information was found to be reliable, it was recorded(Exhibit P/10) and PW. 18 Ambalal, SHO, P.S. started along with other police officials from the police station for Nakabandi of the place as per information Exhibit P/10 after handing over the information reduced in writing to PW. 8 Thawar Cha