Judgment Chandramauli Kr.Prasad and Rekha Kumari JJ. 1. Sole appellant Madho Das was put on trial for the charges u/s. 20 and 23 of the Narcotic Drugs and Psychotropic Substances Act. The 1st Additional Sessions Judge, Sitamarhi, by judgment dated 17.9.2004 and order dated 28.9.2004, held him guilty u/s. 20 (b) (ii) (c) and 23 (c) of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1,50,000.00, and in default of payment of fine, to undergo rigorous imprisonment of 3 years under both the counts. Aggrieved by the same, he has preferred this appeal. 2. Prosecution started on the basis of a written report given by P.W. 1 Parmatma Singh before the Officer Incharge of Basbitta Out Post on 19.12.2001. According to the report, on 19.12.2001 at 1 P.M. while informant Parmatma Singh, Head Constable of the Special Service Burueau (hereinafter referred to as Bureau) was on patrolling duty along with other members of the Force at Indo-Nepal Border at Pillar No. 48, he saw a person going towards the territory of Nepal from Indian territory, having a black bag. He attempted to flee away but apprehended and the villagers identified him as Madho Das, the appellant herein. On search, from his bag, 1072 ampules of Tidigesic 2 ml, 120 tablets of nitroson-10, Rs. 3001 Nepali Currency and Re. 1 Indian Currency besides syringe and disposable needles were found. Appellant did not produce any paper justifying the possession of the recovered articles. He disclosed that he is involved in smuggling of medicines since last 10 years. He had purchased the aforesaid medicines from the shop of one Wakil Mian and was going to Nepal. Appellant disclosed that he was doing business through Raxaul and Birganj, the border town between India and Nepal, but due to vigilance checking, he changed his route. According to the report, the aforesaid psychotropic medicines were recovered in presence of two witnesses. The aforesaid written report of Parmatma Singh was forwarded to the Officer-in-Charge of Majorganj Police Station and on that basis, Majorganj P.S. Case No. 87 of 2001 was registered under Ss. 21 and 23 of the N.D.P.S. Act. 3. According to the report, the aforesaid psychotropic medicines were recovered in presence of two witnesses. The aforesaid written report of Parmatma Singh was forwarded to the Officer-in-Charge of Majorganj Police Station and on that basis, Majorganj P.S. Case No. 87 of 2001 was registered under Ss. 21 and 23 of the N.D.P.S. Act. 3. Police, after usual investigation, submitted charge sheet against the appellant and ultimately, he was charged for the offence of possessing and transporting the narcotic drugs from India to Nepal punishable under Ss. 20 and 23 of the N.D.P.S. Act. Appellant pleaded not guilty and claimed to be tried. 4. Prosecution, in order to bring home the charge, has examined ten witnesses. One Arun Kumar, a Drug Inspector was examined as C.W. 1. 5. P.W. 1 Parmatma Singh, at the relevant time, was Head Constable, whereas P.W. 2 Mahendra Singh, P.W. 3 Balbeer Choudhary, P.W. 4 Manfool Ram, P.W. 5 Satnam Singh and P.W. 6 Saimal Singh are the constables in the aforesaid Bureau. P.W. 7 Jodh Singh Chandel is Nayak of the said Bureau. P.W. 8 Jitendra Prasad and P.W. 9 Sudhir Kumar Singh are witnesses to the seizure list, but have been declared hostile. P.W. 10 Bipat Paswan is S.I. of Police and at the relevant time was posted as officer Incharge of Basbitta Out Post and had investigated the case. 6. Prosecution has also brought on record as exhibits the written report (Ext. 1), Seizure List (Ext. 2), signatures of Jitendra Prasad (P.W. 8) and Sudhir Kumar Singh (P.W. 9) in the Seizure List (Exts. 3 and 3/1) and Forwarding Report (Ext. 4). The defence of the appellant is denial simplicitor and had pleaded false implication. 7. P.W. 1 Parmatma Singh, at the relevant time, was posted as the Head Constable of the Bureau and was on patrolling duty along with other constables of the said Bureau. He found one person having black bag going towards Nepal from India. Seeing them, according to this witness, appellant tried to flee away, but on chase, he was apprehended. The villagers assembled at the spot identified him as Madho Das, the appellant herein and on search from his bag, psychotropic medicines, 3001 Nepali Currency and Re. 1 Indian Currency were recovered. Seeing them, according to this witness, appellant tried to flee away, but on chase, he was apprehended. The villagers assembled at the spot identified him as Madho Das, the appellant herein and on search from his bag, psychotropic medicines, 3001 Nepali Currency and Re. 1 Indian Currency were recovered. He failed to produce any paper justifying possession of the psychotropic medicines and currencies, rather he admitted that he bought the medicines from the shop of one Wakil Mian of Raxaul and is involved in smuggling of medicines for the last ten years. According to him, the appellant was handed over to the Out Post Commander. He has proved his signature on the written report (Ext.1). 8. P.W. 2 Mahendra Singh was a constable of the Bureau and according to him, on 19.12.2001, he was one of the member of the patrolling party along with P.W. 1 Parmatma Singh. According to him, near Pillar No. 48 at Indo-Nepal border. One person was found going with a black bag and when asked to stop, tried to cross the border. He was apprehended and oh search, psychotropic drugs as well as Nepali and Indian Currencies were recovered. Seizure list was prepared by P.W. 7 Jodh Singh Chandel in presence of the co-villagers on which P.W. 8 Jitendera Prasad and P.W. 9 Sudhir Kumar Singh had put their signatures. 9. P.W. 3 Balbeer Choudhary and P.W. 4 Manfool Ram were also constables of the Bureau and on patrolling duty along with P.W. 1 Parmatma Singh. According to them, on 19.12.2001, they were on duty at Pillar No. 48 at Indo-Nepal border, where they found appellant going towards Nepal from Indian territory with a black bag. He tried to flee way but was apprehended and at the first instance, disclosed his name wrongly, but villagers identified him as that of the appellant. According to them, he was taken to Basbitta Out Post and in presence of independent witnesses, 1072 ampules of Tidigesic injections, 120 tablets of Nitrosun-10, syrings, needles etc. were recovered. However, in the cross-examination they have admitted that they had not seen him involved in smuggling, purchasing or selling of psychotropic drugs. 10. P.W. 5 Satnam Singh, at the relevant time, was on patrolling duty with other members of the Bureau at Indo Nepal border. were recovered. However, in the cross-examination they have admitted that they had not seen him involved in smuggling, purchasing or selling of psychotropic drugs. 10. P.W. 5 Satnam Singh, at the relevant time, was on patrolling duty with other members of the Bureau at Indo Nepal border. He has stated that after the appellant was apprehended, on search in presence of the witnesses, namely, P.W. 8 Jitendra Prasad and P.W. 9 Sudhir Kumar Singh 1072 Tidigesic injections and other articles were recovered from his bag. He has also stated that on information, P.W. 7 Jodh Singh Chandel, the Platoon Commander had also come at Pillar No. 48. 11. P.W. 6 Saimal Singh is another constable of the Bureau and a member of the patrolling party. According to him, he wrote the seizure list, which bears the signatures of its Commander. He proved his signature (Ext. 2) thereon. 12. P.W. 7 Jodh Singh Chandel, at the relevant time, was the Platoon Commander of the said Bureau. According to him, at about 1 P.M. on 19.12.2001, he was informed by the members of the Bureau that they had stopped one person upon which, he went there and disclosed the intention to make search of the person apprehended. Thereafter, the bag belonging to the appellant was searched from which 1072 ampules of injection as well as syringes of 5 ML. 2.5 ML besides 40 needles and Rs. 3001.00 Nepali Currency and Re. 1.00 Indian Currency were recovered. On his instruction, P.W. 6 Saimal Singh, prepared the seizure list in presence of the seizure list witnesses which was signed by him (Ext. 2). The seizure list also bore the LTI of the appellant. 13. P.W. 8 Jitendra Prasad and P.W. 9 Sudhir Kumar Singh are witnesses to the seizure list and have stated in their evidence that their signatures were obtained on plain paper. They have been declared hostile. However, they have admitted their signatures on the seizure list. 14. The Court below, finding that the medicines recovered from the appellant find mentioned in the Schedule of the psychotropic substance and its possession being proved beyond all reasonable doubt, convicted and sentenced the appellant as above. 15. Mr. Dinesh Jha, learned Counsel appearing on behalf of the appellant, submits that the seizure list witnesses, i.e. P.Ws. 14. The Court below, finding that the medicines recovered from the appellant find mentioned in the Schedule of the psychotropic substance and its possession being proved beyond all reasonable doubt, convicted and sentenced the appellant as above. 15. Mr. Dinesh Jha, learned Counsel appearing on behalf of the appellant, submits that the seizure list witnesses, i.e. P.Ws. 8 and 9 having not supported the case of the prosecution, grave dout is created about the recovery of the psychotropic medicines from the possession of the appellant and as such, he deserves to be given the benefit of doubt. He points out that P.W. 8 Jitendra Prasad and P.W. 9 Sudhir Kumar Singh have clearly stated in their evidence that their signatures were obtained on a plain paper. 16. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, appearing on behalf of the State and Mr. Sanjay Kumar learned Counsel representing the Union of India, however, contend that the case of the prosecution shall not fail only on the ground that the seizure list witnesses have not supported the case. 17. We do not find any substance in the submission of Mr. Jha. The seizure list witnesses have admitted their signatures on the seizure list. A large number of witnesses, who belonged to the Bureau, have stated about the seizure of the psychotropic medicines from the possession of the appellant and in that view of the matter, we are not inclined to reject the case of the prosecution only on the ground that two seizure list witnesses have not supported case of the prosecution. 18. Mr. Jha, then contends that although the occurrence had taken place on 19.12.2001 but the case was registered belatedly on 20.12.2001 and the report was sent to the Special Judge on 21.12.2001. He points out that this delay clearly points out manipulation by the prosecution. 19. We do not have the slightest hesitation in rejecting this submission of Mr. Jha. Occurrence had taken place in the afternoon of 19.12.2001 and information was given to the Incharge of the police Out Post on 20.12.2001 and the Incharge of the said Out Post forwarded the same on the same day at Majorganj Police Station, where the case was registered on the same day. Jha. Occurrence had taken place in the afternoon of 19.12.2001 and information was given to the Incharge of the police Out Post on 20.12.2001 and the Incharge of the said Out Post forwarded the same on the same day at Majorganj Police Station, where the case was registered on the same day. It was forwarded to the Special Judge on the next day, i.e. on 21.12.2001 and we do not find that this delay in registering the case, in any way, affects the case of the prosecution. 20. P.W. 1 Parmatma Singh was the Head Constable of the Bureau, whereas P.W. 2 Mahendra Singh, P.W. 3 Balbeer Choudhary and P.W. 4 Manfool Ram are Constables of the Bureau. They have consistently stated about the recovery of psychotorpic medicines from the possession of the appellant. P.W. 7 Jodh Singh Chandel, Platoon Incharge had also stated about the recovery of the psychotropic medicines from the appellant and preparation of the seizure list by P.W. 6 Saimal Singh. He has also stated about the recovery of the psychotropic medicines from the possession of the appellant. Their evidence on the point of recovery and seizure are consistent and we do not find any reason to reject their testimony. 21. Mr. Jha, submits that according to the prosecution itself, appellant was apprehended by the members of the Bureau and seizure was effected in presence of the witnesses by P.W. 7 Jodh Singh Chandel. He submits that none of the officers of the Bureau were empowered to make search and seizure and that being illegal, the trial of the appellant is vitiated. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Roy V.D. V/s. State of Kerala, 2000 2 PCCR 385 and our attention has been drawn to paragraph no. 16 of the said judgment, which reads as follows: "16. - Now, it is plain that no Officer other than an empowered Officer can resort to Sec. 41(2) or exercise powers u/s. 42(1) of the NDPS Act or make a complaint under cl. (d) of sub-sec. (1) of Sec. 36-A of the NDPS Act. 16 of the said judgment, which reads as follows: "16. - Now, it is plain that no Officer other than an empowered Officer can resort to Sec. 41(2) or exercise powers u/s. 42(1) of the NDPS Act or make a complaint under cl. (d) of sub-sec. (1) of Sec. 36-A of the NDPS Act. If follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an Officer not being an empowered Officer or an authorised Officer u/s. 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial." 22. Our attention has also been drawn to the following passage from paragraph no. 13 of the judgment of the Supreme Court in the case of State of Punjab V/s. Balvir Singh, 1994 3 SCC 299 (Para-14), which reads as follows: "13.- Therefore, if an arrest or search contemplated under Ss. 41 and 43 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial." 23. Learned Counsels representing the Union of India as also the State of Bihar, submit that in the present case, the search and seizure were made at a public place and the members of the Bureau have not been empowered u/s. 42 of the NDPS Act but the search and seizure cannot be said to be illegal. 24. We do not find any substance in the submission of Mr. Jha. 25. A distinction has to be made between search and seizure in building or conveyance and search and seizure in any public place or in transit. Section 42 of the NDPS Act operates in the field of search and search in any building, conveyance or at other places indicated therein, whereas Sec. 43 of the NDPS Act contemplates search and seizure of any narcotic drugs or psychotropic sub-stance in public place or transit. Section 42 of the Act enumerates the names of the departments, which include Paramilitary Forces or Armed Forces. Section 42 of the Act enumerates the names of the departments, which include Paramilitary Forces or Armed Forces. Undisputedly, the members of the Force belong to the Paramilitary Forces and, therefore, had the authority to seize the psychotropic substances at a public place u/s. 43 of the NDPS Act. 26. It is relevant here to state that the members of the Bureau have not lodged the complaint, but gave written report to the Police Station and the police, after investigation, had submitted the charge sheet. 27. Now, referring to the authority of the Supreme Court in the case of Roy V.D. (supra), same is clearly distinguishable. In the said case, complaint itself was filed by a person who was not authorised to file it under NDPS Act. In the present case, as stated earlier, the police, after investigation, had submitted the charge sheet. 28. As regards the decision of the Supreme Court in the case of Balbir Singh (supra), same, in our opinion, instead of supporting the case of the appellant, goes against him. There was no prior information that the appellant is carrying the psychotropic substances. In fact, recovery from him comes within the expression chance recovery. In the case of Balbir Singh (supra), it has been held that in case of chance recovery when the person making it is not empowered then the obvious thing he should do is that he must inform the empowered Officer under the NDPS Act, who should thereafter, proceed from that stage in accordance with the provisions of the NDPS. Act. It would be evident from the following passage from paragraph no. 6 of the aforesaid judgment, which reads as follows: "6. - xxx Consequently the provisions of the Cr.P.C, shall be applicable in so far as they are not inconsistent with the NDPS Act to all warrants, searches, seizures or arrests made under the Act. But when a Police Officer carrying on 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 drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then he must follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If he happens to be one of those empowered officers under the NDPS Act also then he must follow thereafter the provisions of the NDPS 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 NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act." xxx 29. All the submissions made on behalf of the appellant having no substance, we do not find any merit in this appeal and it is dismissed accordingly.