Judgment H.R. Panwar, J.-This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short the Code hereinafter) is directed against the Judgment and order dated 012.2002 passed by Special Judge, (NDPS Cases), Chittorgarh (for short the trial Court hereinafter) in Sessions Case No. 10/2002, whereby the trial Court convicted the appellant for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act hereinafter) and sentenced him to undergo ten years rigorous imprisonment with a fine of Rs. 1,00,000/-in default of payment of fine further to undergo three months simple imprisonment. Aggrieved by the Judgment and order impugned, the appellant has filed the instant appeal. 2. The brief facts to the extent they are relevant and necessary for the decision of this appeal are that on 16.09.2001 PW. 1 Raisudeen Khan alongwith other officials of Central Narcotics Bureau while patrolling near Surajpura-Dindoli Circle at about 17.00 hours, saw a person coming on a scooter from Dindoli side, bearing No. RJ 09 M 9525. He was asked to stop. Suspecting him to be in possession of Narcotic Drugs, two independent Motbirs were called. They were served with notice Exhibit P-1. They gave their consent to become Motbirs. A notice Exhibit P-2 under Section 50 of the N.D.P.S Act was served on the appellant. He was asked to exercise his option to be searched in the presence of Gazetted Officer or the Magistrate. The appellant gave his consent for search of his own and his scooter by PW. 1 Raisudeen Khan. On a search having been carried out, 9 polythene bags containing Narcotic substance were found under the petrol tank on an empty place. On seeking and being sniffed, the substance was found to be contraband opium. The opium was weighted which was 4 kg and 900 grams. Two samples of 25 grams each were taken. The samples as well as the remaining opium were sealed on the spot. The samples were marked as Articles A-1 and A-2. The seizure memo Panchnama Exhibit P-1 was prepared. The specimen seal was prepared on the spot vide Exhibit P-4. The scooter was seized vide Exhibit P-5. Thereafter, the statement of appellant Exhibit P-6 under Section 67 of the N.D.P.S. Act was recorded. The accused confessed the guilt voluntarily in his statement under Section 67 of the N.D.P.S. Act. The seizure memo Panchnama Exhibit P-1 was prepared. The specimen seal was prepared on the spot vide Exhibit P-4. The scooter was seized vide Exhibit P-5. Thereafter, the statement of appellant Exhibit P-6 under Section 67 of the N.D.P.S. Act was recorded. The accused confessed the guilt voluntarily in his statement under Section 67 of the N.D.P.S. Act. Thereafter the appellant was arrested vide Exhibit P-7 at 19:00 hours. After usual investigation, a complaint was filed before the trial Court against the appellant for the offence punishable under Section 8/18 of the N.D.P.S. Act. The prosecution adduced evidence by producing as many as eight witnesses and documents. Exhibits P-1 to P-21. The appellant made statement under Section 313 of the Code and denied the allegation. In defence, the appellant produced DW. 1 Banshi Das and DW. 2 Naresh Thakkar and documents Exhibits D-1 to D-5. By the Judgment and order impugned, the trial Court convicted and sentenced the appellant as above. Hence, this appeal. 3. I have heard learned Counsel for the appellant and Public Prosecutor for the State. I have carefully gone through the Judgment and order impugned as also the record of the trial Court. 4. It is contended by the learned Counsel for the appellant that the officials of Central Narcotics Department earlier had an information about the appellant transporting the Narcotic Drugs which has not been reduced to writing by them, thus, there is violation of Sub-section (2) of Section 42 of the N.D.P.S. Act. He has relied on documents Exhibits D-4 and D-5 a newspaper report. It is further contended that the prosecution failed to establish the ownership and conscious possession of the scooter from which the recovery of opium was made. It is further contended that the prosecution failed to prove that the samples of the contraband Opium were sealed on the spot and the seal thereof remained intact till the samples reached for chemical analysis. According to learned Counsel there is no evidence as to where the seized contraband opium was kept. He has further submitted that the samples of contraband weighing 25 grams each were taken but in the report of chemical analyst, it has not been mentioned whether the samples of same weight were received by them. According to learned Counsel there is no evidence as to where the seized contraband opium was kept. He has further submitted that the samples of contraband weighing 25 grams each were taken but in the report of chemical analyst, it has not been mentioned whether the samples of same weight were received by them. Learned Counsel has further contended that there is no total non-compliance of Section 55 of the N.D.P.S. Act and lastly it was contended that the contraband opium was recovered from the appellant in 9 polythene bags and the samples were taken after mixing them and, therefore, according to learned Counsel it cannot be said that the report of chemical analyst represents the entire contraband recovered. 5. Mr. B.M. Bohra, learned Counsel for the Union of India submits that there was no information prior to checking of the appellant while patrolling at Surajpura-Dinrdoli Circle that the appellant is transporting drugs and, therefore, Section 42 of the N.D.P.S. Act has no application in the instant case. It is further contended that the contraband opium was recovered from a secret chamber underneath petrol tank of the scooter which at the relevant time the appellant was driving and, therefore, it was the appellant who had the knowledge of carrying the contraband secretly in a secret chamber of scooter. The question of ownership of the scooter is of hardly any relevance to sustain the conviction for the offence under Section 8/18 of the N.D.P.S. Act. Learned Counsel has further submitted that from the statement of prosecution witnesses it has been established that the samples were sealed on the spot and thereafter, till the samples reached to the chemical analyst, their seals remained intact. Learned Counsel has further submitted that though all the mandatory provisions have been complied with, even otherwise, the appellant made a confessional statement voluntarily under Section 67 of the N.D.P.S. Act wherein he has confessed the guilt and that statement has not been retracted by him, except at the stage of statement under Section 313 of the Code with a vague denial. Learned Counsel for the Union of India has relied on a decision of Honble Supreme Court in M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence, 2003 (8) SCC 449 , wherein the Apex Court held, that it is clear from Section 41(2) that the Central Government or State Government, as the case may be, can only empower an officer of a Gazetted rank who can either himself act or authorize his subordinate on the terms stated in the section. Under Sub-section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under Sub-section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in Sub-section (2) of Section 42. It is clear from the language of Sub-section (2) of Section 42 that it applies to an officer contemplated by Sub-section (1) thereof and not to a Gazetted Officer contemplated by Sub-section (2) of Section 41, when such a Gazetted Officer himself makes an arrest or conducts search and seizure. 6. On the strength of aforesaid view taken by Honble Supreme Court, learned Counsel for the Union of India has submitted that in the instant case the search and seizure was made by PW. 1 Raisudeen Khan in presence of PW. 4 S.S. Yadav, Superintendent, Central Narcotics Bureau. He has further contended that the appellant made confessional statement under Section 67 of the N.D.P.S. Act which has not been retracted by him when produced before the Court and during the trial, except at the stage of statement under Section 313 of the Code, a vague stand about harassment was taken. In M. Prabhulals case (Supra), Honble Supreme Court held, that further, it is also to be borne in mind that the accused-appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge under Section 313, CrPC, that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of conviction. Learned Counsel has also relied on a decision of Honble Supreme Court in Babubhai Odhavji Patel etc. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of conviction. Learned Counsel has also relied on a decision of Honble Supreme Court in Babubhai Odhavji Patel etc. vs. State of Gujarat, AIR 2006 SC 102 , wherein Honble Supreme Court held that the D.I.G. had instructed PSI that intoxicant materials were being transported illegally from the States of Rajasthan and Uttar Pradesh and the vehicles had been passing through Banaskantha district. This was only a general information given by the D.I.G. to PW. 2 and such information is not bound to be recorded as a source of information as contemplated under Section 42 of the N.D.P.S. Act. It has been further held, that giving information to accused of option of search before Gazetted Officer or Judicial Magistrate is not necessary when narcotic article was not recovered from the person of accused. Learned Counsel for the Union of India has submitted that the contraband opium was not recovered from the person of the appellant but it was recovered from the secret chamber of scooter which he was driving at the time of seizure and, therefore, though Section 50 of the N.D.P.S. Act has been fully complied with yet it is not required as in catena of decisions, Honble Supreme Court held, that in such cases Section 50 of the N.D.P.S. Act has no application. Reference may be made to a recent decision of Honble Supreme Court in State of H.P. vs. Pawan Kumar, 2005 (4) SCC 350 . Learned Counsel for the Union of India has further relied on a decision of Gujarat High Court in Dashrathbhai Govindbhai Shah & Anr. vs. State of Gujarat, 1998 CrLJ 4634 , and submitted that on an identical fact the Gujarat High Court has taken a view that if an accused is found in possession of narcotic substance, it is presumed that he has committed an offence under Chapter IV in respect of narcotic substance for which he fails to account satisfactorily. In that case, the opium was found from dicky of the scooter and Gujarat High Court held, that they are not concerned in these cases for the ownership of the opium. The possession is also an offence if one possesses a narcotic substance in breach of the N.D.P.S. Act. In that case, the opium was found from dicky of the scooter and Gujarat High Court held, that they are not concerned in these cases for the ownership of the opium. The possession is also an offence if one possesses a narcotic substance in breach of the N.D.P.S. Act. There is no dispute to the fact that the opium found is a narcotic substance possession of which is prohibited under the N.D.P.S. Act. Undisputedly, appellant were going on a scooter which was intercepted from the dicky of which opium was found. When they were asked about the opium they had neither pass nor permit nor any authorization to produce the same. Their defence is that they had simply borrowed a scooter and they did not know what are the contents of the dicky. Thus, the Gujarat High Court held that it is fully proved that the appellants are found with scooter from the dicky of which opium is found. It is, therefore, presumed that appellants are in possession not only of the scooter but also the contents in the dicky which in the instant case is opium. Section 54 makes it clear that unless satisfactory account is given for possession of opium found from the dicky of the scooter on which appellants were moving there is a presumption that accused have committed an offence under Chapter IV in respect of opium. The burden is on the appellants to prove that when they took scooter from the owner of the scooter, opium was already there in it or it is planted by someone as dicky was opened by someone. The burden is heavily on the accused. More particularly, as the dicky was found locked when the scooter was intercepted by the police. A person is presumed to be in possession of the contents of which he has a control over it. The contention of the Counsel for the accused persons therein that the appellants therein were not in conscious possession of the opium found from the dicky was, therefore, rejected. 7. In Madan Lal & Anr. vs. State of H.P., 2003 SCC (Cri.) 1664, the Honble Supreme Court held as under:-“The word “possession” means the legal right to possession. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. 7. In Madan Lal & Anr. vs. State of H.P., 2003 SCC (Cri.) 1664, the Honble Supreme Court held as under:-“The word “possession” means the legal right to possession. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. Possession in a given case need not be physical possession but can be constructive having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.” 8. I have scrutinized, scanned and evaluated the evidence on record and given my thoughtful consideration to the rival submissions made by the Counsel for the parties. 9. PW. 1 Raisudeen Khan, the seizure officer has stated that on 16.09.2001 while patrolling near Surajpura-Dindoli circle at 17:00 hours they found a scooter coming from Dindoli side. The scooter was got stopped. On inquiry, the person riding on the scooter was found in suspicious circumstances. Thereafter, two independent Motbirs were called vide Exhibit P-1, their consent to become Motbirs was obtained. On being asked, the appellant disclosed his name. A notice under Section 50 of the .N.D.P.S. Act Exhibit P-2 was served on the appellant. The appellant exercised his option and consented to be searched by the seizure officer. On opening the petrol tank in empty space, 9 polythene bags were found. On being checked it was found to be opium. The contraband opium was weighed which was 4 kg. and 900 grams. Two samples of 25 grams each were taken. Panchnama seizure memo Exhibit P-1 was prepared in presence of Motbirs signed by the appellant and Motbirs Specimen seal was prepared on the spot vide Exhibit P-4. The scooter was seized vide Exhibit P-5. Thereafter, the statement of appellant was recorded vide Exhibit P-6. After recording the statement of appellant, the appellant was informed of the reasons to arrest him and thereafter vide Exhibit P-7 he was arrested. A detailed report was sent to the higher officials as envisaged under Section 57 of the .N.D.P.S. Act vide Exhibit P-8. He has proved first information report Exhibit P-8. 10. PW.4 S.S. Yadav, Superintendent, Narcotics Bureau, Chittorgarh, stated that he constituted a team for checking near Surajpura-Dindoli Circle. They reached there at about 2:30-3:00 PM and were keeping eye on the vehicles passing through. He has proved first information report Exhibit P-8. 10. PW.4 S.S. Yadav, Superintendent, Narcotics Bureau, Chittorgarh, stated that he constituted a team for checking near Surajpura-Dindoli Circle. They reached there at about 2:30-3:00 PM and were keeping eye on the vehicles passing through. At about 17:00 hours one person came from Dindoli side on scooter. PW. 1 Raisudeen Khan got the scooter stopped suspecting the narcotic drugs transported. On being inquired, the person riding on the scooter disclosed his name as Satya Narayan the appellant. He was informed by the seizure officer that they suspect having narcotics drugs with him. Motbirs were called, their consent was taken and in the presence of Motbirs the appellant was given notice requiring him to exercise option for search of his own and scooter in presence of Gazetted Officer or nearest Magistrate. The appellant gave his consent to be searched by the seizure officer PW. 1. Thereafter, PW. 1 conducted the search. On opening the petrol tank on the space below the petrol tank, there were 9 polythene bags containing black substance. On being checked it was found to be opium. The contraband was tested by the testing kit which was with them. The contraband opium was weighed which was 4 kg. 900 grams. Two samples of 25 grams each were taken. The samples and the remaining opium were sealed on the spot. Thereafter, the appellant made a statement before the Seizure Officer PW. 1 Raisudeen Khan recorded under Section 67 of the N.D.P.S. Act. After recording the statement of appellant, the appellant was apprised of the reasons for his arrest and thereafter the appellant was arrested vide Exhibit P-7 at 19:00 hours. The statement of PW. 1 finds support from the statement of PW. 4. 11. Thus, from the statements of these two witnesses, it is clear that after seizure of contraband opium, the appellant made a statement under Section 67 of the N.D.P.S. Act confessing his guilt and thereafter he was arrested at 19:00 hours. The crucial question in the instant case needs to be examined whether the accused was arrested prior to making of statement under Section 67 of the N.D.P.S. Act or the same was recorded after his arrest. The crucial question in the instant case needs to be examined whether the accused was arrested prior to making of statement under Section 67 of the N.D.P.S. Act or the same was recorded after his arrest. On close scrutiny of the statements of witnesses and documents placed on record, more particularly the statement of the appellant Exhibit P-6 and Exhibit P-7 the arrest memo of the appellant, it is established that the appellant made statement under Section 67 of the N.D.P.S. Act prior to his arrest and after recording the statement the appellant was apprised of the reasons for his arrest and thereafter he was arrested. The confessional statement was made by the appellant on 16.09.2001, thereafter, the appellant was produced before the trial Court, where he has not complained anything regarding the statement not being voluntary or has been obtained by harassing or torturing him. The appellant was put to trial. During trial of the appellant, he did not retract from his statement Exhibit P-6. However, at the time of making statement under Section 313 of the Code, the appellant came with a case that his father has a licence of cultivating the opium and there was some dispute between his father and officials of the Narcotics Bureau for which he has been falsely implicated. The appellant produced two witnesses in defence DW. 1 Bansidas and DW. 2 Naresh Thakkar. The statements of these two witneses relate to permit for producing opium in favour of father of appellant and came with a case that there was some dispute between father of the appellant and the officials of the Narcotics Bureau regarding quantity and quality of the opium produced by them. The plea taken in defence does not appear to be plausible and the learned trial Court has rightly rejected the plea of defence on the ground that had there been any dispute between father of the appellant and officials of the Narcotics Bureau, the matter should have been reported and even otherwise, it cannot give a cause planting such a huge quantity of opium. The Honble Supreme Court in G. Srinivas Goud vs. State of A.P., 2005 (10) SRJ 47, has held that when the quantity recovered is so large, it does not appear to be a case of planting. The Honble Supreme Court in G. Srinivas Goud vs. State of A.P., 2005 (10) SRJ 47, has held that when the quantity recovered is so large, it does not appear to be a case of planting. The copy of first information report shows every detail of the occurrence including search seizure and arrest which was forwarded to Superintendent, Prevention and Enforcement Cell, Chittorgarh through Inspector Jaikumar Singh which has been received by the said officer on 16.09.2001. The first information report Exhibit P-8 was received by Special Judge, N.D.P.S. Cases, Chittorgarh on 17.09.2001 at 1.35 PM. The contraband opium recovered was sent of Government Opium and Alkaloid Works, Neemuch (M.P.) vide Exhibit P-6. On chemical analysis, the samples were found by qualitative and quantitative analysis to be opium within the meaning of N.D.P.S. Act, 1985 vide Exhibit P-15. Thus, on close scrutiny of the statements of prosecution witnesses, it has been established that on search the appellant was found in possession of opium weighing 4 kg. 900 grams which on being analyzed by the Chemical Analyst was found to be opium vide Exhibit P-15. The appellant failed to explain and account the possession of said opium. In the instant case, firstly there was no information in advance, secondly the search and seizure were effected in the presence of PW . 4 who is Gazetted Officer and, therefore, there is no requirement to comply with the provisions of Section 42 of the N.D.P.S. Act in view of two decisions of Honble Supreme Court referred herein above. The confessional statement Exhibit P-6 under Section 67 of the N.D.P.S. Act made by the appellant is voluntary in nature which is evident from the fact that till the end of the trial, the appellant had not retracted the confessional statement. In view of the decision of Honble Supreme Court in M. Prahulal (Supra), without going to the other contentions raised by the Counsel for the appellant, the conviction of the appellant can safely be sustained on the basis of confessional statement Exhibit P-6 made by him which is voluntary in nature. In the circumstances, therefore, I do not find any error in the Judgment and order impugned. 12. Consequently, the appeal fails and is hereby dismissed. The Judgment and order dated 012.2002 passed by Special Judge, N.D.P.S. Cases, Chittorgarh against appellant Satya Narayan is affirmed.