Hon'ble TOTLA, J.—Appellant challenges his conviction and sentence awarded of ten years' rigorous imprisonment with fine of Rs. 1,00,000/- for the offence of Sections 21 and 29, NDPS Act recorded per judgment dated 17.12.88. 2. Heard learned counsel for the appellant and also learned Public Prosecutor. 3. The facts alleged as per prosecution appear to be like that in night between 24th and 25th November, 1987, a vehicle truck No. GTF 3675 being allegedly driven rashly by driver Sohan Singh turned up by side on road near Bachhdau resulting in death of two and injury to some for which, on report of a passenger Ratna, FIR No. 93/87 was registered at Police Station, Dhorimana, district Barmer at 7 AM on 25.11.87. 4. According to prosecution, on 25.11.87 at about 7 pm, Dy. S.P. Barmer informed on wireless at police station, Barmer that as some information regarding smuggling of heroin is so checking staff to be available at road crossing. Dy.S.P. arriving at police station at about pm told SHO PW 12 regarding information to the S.P. by some informer that the truck GTF 3675 owned by Tan Singh driven by his brother Bhom Singh while going towards Gujarat last night, having heroin in tins of grease, met an accident, so Gom Singh and Narainpuri, in some truck, coming at Barmer and taking nisan truck RJC 3068-owned by Tar Singh- brought the injured to hospital and Narainpuri has placed grease tin taking from that truck GTF 3675 in this truck RJC 3068 and the truck now towards Ramsar with dead body shall be back. So the SHO PW. 12 making entry in Roznamcha Ex. P. 16 proceeded for Nakebandi on way also taking also other police personnels from road crossing. 5. So the SHO PW. 12 making entry in Roznamcha Ex. P. 16 proceeded for Nakebandi on way also taking also other police personnels from road crossing. 5. Nakabandi was effected at 3-4 km from city near octroi post on road Ramsar to Barmer and at about 10 hours, truck RJC 3068 arriving from Ramsar stopped, which found driven by Narainpuri the appellant and Mehtab Singh sitting on seat at side to him-in vehicle below driver seat-lying in tools was a red colour grease tin in which with grease over it was a yellow polythene bag and for taking it out, tin had to be cut by tools - in polythene was cloth bag (theli) containing brownish powder smelting and testing like heroin- so seized - on weigh found 950 gm - a sample of 40 gm taken from substance sealed and remaining substance separately sealed-preparing memo Ex. P.10 also affixed on it impression of the seal used. Preparing memos Exs. P. 11 and 12 vehicle RJC 3068 and its documents seized appellant who was driving the vehicle arrested at 2.30 a.m. vide memo Ex. P. 13.Returning at police station, SHO making entry No. 764 of all above in Roznamcha Ex. P. 17, registered FIR Ex.P. 18 No. 93/87 for the offences of NDPS and Customs Act. Sealed packets deposited and kept in malkhana with entry Ex.P. 3 in register. Sita plan of the place of recovery is Ex. P.19, memo of arrest of Gom Singh and Tar Singh are Exs. P. 20 and P. 21 - sample packet, with forwarding letter Ex.P.8 deposited at laboratory obtaining receipt Ex.P. 7. Recording statements of witnesses and with copies of FIR, charge-sheet copies Exs. P.5, 6, 1 and 2 pertaining to some other incident for the offences of NDPS Act and Customs Act in relation to Tar Singh also and other charge sheet submitted mentioning that for Mehtab Singh separate challan is being filed in Children Court. 6. Narainpuri and Tara Singh charged for the offences of Sections 21 and 29 and Gom Singh charged for the offence of Section 29 that they conspiringly, in order to sale and deal, on 26.11.87 at about 1-2 am, in vehicle No. RHC 3068, keeping in tool box consciously possessed and transported 950 gm heroin vehicle owned by Tar Singh and driven by Narainpuri-denying claimed trial. 7. 7. Among the 13 prosecution witnesses examined, PW-12 is the SHO who doing all as above and searching the vehicle seized the substance who deposing so also proves respective memos. Ghisu Singh Rathore PW-9 Sub-Inspector, Head Constable Kalu Ram PW-2, Constable Puna Ram PW-1 police personnels were with SHO during search and seizure. Ratan PW-8 and Luna Ram PW-13 travelling in truck No.GTF-3675 state regarding accident and injury to them and death of two. Both of them are declared hostile. Dr. Mangilal Bohra PW.10 examined injuries of PW-8 and PW-13 proves injury reports Exs.P/14 and P/15. Ram Singh PW-3 Sub-Inspector in September, 1984 at police station, Kotwali, Barmer state about searching vehicle GTF 3675 on 21.9.84 and finding of some Afgan nationals in it - Sohandas PW. 5 SHO police station, Sangar in September, 1986 state about recovery of huge heroin on 19.9.86. ASI PW-1 of Dhori Manna deposes about accident of vehicle GFT 3675 on 25.11.87 and registration of FIR Ex.P/14 at 7.00 AM on 25.11.87. Head Constable malkhana incharge PW-4, constables Prema Ram PW. 6 and Bhabu Ram PW. 7 state about safe and intact delivery of sample packet at laboratory. 8. Laboratory report Ex. P. 24 of 11.4.78 describe that on 11.12.07 packet received with intact seal weighed 30 gm and substance on micro chemical examination gave positive test for presence of heroin. 9. Appellant's explanation is that the witnesses are telling lie and he never was driver of this vehicle RJC 3068. 10. Learned Judge by the assailed judgment convicted and sentenced the appellant and acquitted other two Gom Singh and Tar Singh. 11. Here, it may be mentioned that for accident of vehicle GTF 3675, FIR registered at police Station, Dhori Manna Ex.P/14 bears No. 93/87 and coincidently for recovery of this substance from vehicle RJC 3068- FIR registered at Police Station, Barmer, also bears No. 93/87. 12. Learned counsel for the appellant thurstly argued (1) that search and Nakabandi, as is very clear from the evidence of SHO PW.12, made only in consequence of certain information of a informer given to S.P., but (i) this information never nowhere reduced in writing; (ii) SHO PW. 12 directly not given any information to PW.12- Dy.S.P. told the information and which information mentioned to him by Superintendent of Police-even Dy. 12 directly not given any information to PW.12- Dy.S.P. told the information and which information mentioned to him by Superintendent of Police-even Dy. S.P. what to talk of higher officer is not among prosecution evidence; (iii) total non-compliance of S. 42- when not reduced in writing, obviously copy not sent to higher officer and thus mandatory procedure under S. 42 not complied with in any manner. (2) Appellant, if driver, it has just by chance and only just to carry dead or injured to hospital - appellant otherwise never driver of any of the said vehicles. (3) Even allegedly appellant was not in vehicle No. 3675 which met accident and from which this grease tin is said to have taken and kept in Nishan truck No. RJC 3068. (4) It cannot be that appellant taking the container shall keep in vehicle RJC 3068 - in any case, if that be so, per prosecution itself, only innocently on asking of Gom Singh. (5) Appellant at best simply a casual employee who has no knowledge of this substance in small tin and thus cannot be deemed to be conscious possession. 13. Learned counsel also argued that memos of impression of seal used not prepared - seal or memo - not deposited in malkhana- real description not proved to have been forwarded to laboratory - no description of imprint of seal in malkhana register so mentioning in report Ex. 24 of seals being intact is without comparison. Submitted that making and preserving seal impressions and/on destructing the seal so as to eliminate any chance of tempering and manipulation essential, and not complied in this case. Lastly, submitted that weight with polythene bag of sample found at laboratory is 30 gm, whereas sample collected was 30 gm thus variation in weight. In support of the contentions, learned counsel placed reliance on (1) 1994 Cr.L.R. SC 241, State of Punjab vs. Balbir Singh; and (2) 1997 Cr.L.R. (a) Page 135, Nathu Banjara vs. State; (b) P. 132, Laxman Lal & Another vs. State of Rajasthan; (c) P. 806, Mohan vs. The State of Rajasthan; (d) P. 536, Jarnail Singh vs. The State of Rajasthan; (e) P. 746, Bhajan Prakash vs. The State of Rajasthan; (f) P. 624, Shounath vs. The State of Rajasthan; (g) P. 635, Harnek Singh vs. The State of Rajasthan; and (h) 653, Heeralal vs. The State of Rajasthan. 14. 14. Countering above arguments, learned Public Prosecutor argued that in the vehicle (driven) by the appellant just below his seat in tool box concealed was this tin containing heroin, and appellant being driver as also proved by other evidence, was in conscious possession so is rightly convicted. 15. Giving thoughtful considerations to above arguments, perused impugned judgment and record. 16. A reading of the evidence and documents disclose that on 25.11.87 at 7.00 A.M. registered is FIR No. 93 at P.S. Dhorimanna for the incident of accident is truck No. GTF 3675. Per FIR Ex.P.14 lodged by Ratna this d truck owned by Tar Chand was driven by his brother Gom Singh and due to allegedly rash, negligent and fast driving the vehicle turned and consequent to injuries two Vakta and Sachu died there and other Hema, Kana and Ratna injured. 17. Evidence of Ratna PW. 8 and Luna Ram PW. 13, though they are declared hostile, read with evidence of medical officer PW. 10 proves that vehicle GTF 3675 was driven by Gom Singh and they both travelling in it. Vehicle turned upside down they injured and two other died. Registration of case at Police Station, Dhori Mana is proved by evidence of ASI PW. 11. 18. Injured Ratan PW. 8 states that as vehicle turned, the driver Gom Singh did arrange for nishan truck in which they brought to Barmer hospital. Similar is statement of other injured Loona Ram PW. 13.Thus, apparent is that for transporting injured and others, vehicle was arranged by driver of GTF 3675. 19. One of the main arguments put forward is non-compliance of Section 42. From the evidence of SHO, seizure officer PW.12 read with Roznamcha entry Ex.P. 15 made by PW. 12, it surfaces that (1) on information (some clue) given by Dy. S.P. PW. 12 proceeded for Nakebandi, (2) Dy.S.P. told PW. 12 that information is to Superintendent of Police by some informer, (3) PW. 12 says that Dy. S.P. told of S.P. having received information who told him (the Dy. S.P.). Thus, neither Dy. S.P., nor SHO appear to be directly communicated by informer. None of the persons to whom the information given or first communicated are among prosecution witnesses. PW. 12 does not say of reducing the information in writing- neither say of forwarding any copy to higher officer. S.P.). Thus, neither Dy. S.P., nor SHO appear to be directly communicated by informer. None of the persons to whom the information given or first communicated are among prosecution witnesses. PW. 12 does not say of reducing the information in writing- neither say of forwarding any copy to higher officer. This information is not proved to be reduced in writing, nor copy forwarded. 20. Though, deficiency is apparent regarding compliance of Section 42, but also is to be examined whether provisions of Section 42 are applicable on the given case. 21. According to prosecution, SHO proceeded in night, searched truck just after mid-night and in truck was found this tin and substance. The truck No. RJC 3068 was stopped and search at a public road- search made is of conveyance, a truck, and Section 43 of the Act specifically provides for seizure etc. at a public place. This vehicle was on a public place so only the provisions of Section 43 are applicable. 22. According to provisions of Section 43 of the Act, "any officer of any of the departments mentioned in S. 42" may search. The section no-where provides for prescribing procedure mentioned in Section 42(1) or (2). S. 42(1) and (2) are desired to be followed if search is in the manner, at time and/or place as described in Section 42(1). 23. Hon'ble the Supreme Court dealing with provisions in 1994 Cr.L.R. SC 241, State of Punjab vs. Balbir Singh held that only acting under S. 42 (1) information ought to be recorded. Similar is also held in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513 . 24. Non-recording of such information under Section 42 may make actions suspect, but not on this core alone necessarily leads to vitiation of trial. The Hon'ble Apex Court in 2009(1) SCC Cr.393, K.C. Chithhayan vs. State of Tamil Nadu held like above that if search is to be made at a public place then applicable is Section 43 and not S. 42(2). 25. For the above reasons, argument for compliance of S. 42 can hardly stand. 26. SHO PW. The Hon'ble Apex Court in 2009(1) SCC Cr.393, K.C. Chithhayan vs. State of Tamil Nadu held like above that if search is to be made at a public place then applicable is Section 43 and not S. 42(2). 25. For the above reasons, argument for compliance of S. 42 can hardly stand. 26. SHO PW. 12 deposes that on information given by Deputy Superintendent of Police, making entry Ex.P.16 in Roznamcha, he proceeded along with other staff for Nakebandi and on way S.I. Jitu Singh with other personnels were at Ahinsa Chauraha who also taken along Nakebandi at octroi-post on road at a distance of about 3-4 km. from town - at about 1210 mid-night from towards Ramsar came truck RJC 3068 which giving signal stopped- the vehicle was driven by Narainpuri and on seat by side was Mehtab Singh- truck when searched, in its took box, below driver seat was a grease tin in which in a polythene with grease over it, was a theli (bag) of white cloth containing powder like material and-as theli could not be taken out so tin cut and broken by tools - substance found was powder brownish like which smelt and tested as heroin so seized and weighed by accompanying head constable Kaluram, was 950 gms from which sample of 30 gm separately sealed, rest separately sealed, prepared memo Ex.P. 15. PW. 12 stating about seizure of vehicle and arrest etc.has identified Article 2 the packet of remaining substance, Art. 3 tin, Articles 4 and 5 tools using which tin broken, Art. 6 small bag in which documents of vehicle were and Art. 1 the packet of remaining samples after examination. PW. 12 says that light was arranged for which head constable Kaluram did went to police station and came making arrangements. On this other witnesses also stated and explained convincingly that lights of vehicles were used and gas for light was arranged from police station which was at about a distance of 3-4 km from the place of search. SHO PW. 12 states that being mid-night, no possibility of finding independent witnesses though little effort made, still could not be available. Normally, it is desirable and also is requirement that independent witness should be but if convincing hard reasons are and no prejudice or suspicion, the same cannot adversely affect prosecution. 27. SHO PW. 12 states that being mid-night, no possibility of finding independent witnesses though little effort made, still could not be available. Normally, it is desirable and also is requirement that independent witness should be but if convincing hard reasons are and no prejudice or suspicion, the same cannot adversely affect prosecution. 27. In addition to SHO PW 12, Sub-Inspector PW 9 states that per telephonic directions of Dy. S.P., he along with police personnels proceeded to the road crossing for being available and then Dy. S.P. and SHO with other police personnels and they all effected Nakebandi near octroi post, wherein night around 1210 arriving RJC 3068 from towards Ramsar stopped and then searched. PW. 9 describes recovery of heroin in the tin and his signatures are on memos Exs. 10, 12 and 13. Entry of Sub-Inspector PW. 9 departing from police station in Roznamch is Ex. P 14. Testimony of these two witnesses PW 12 and PW 9 is corroborated by head constable Kalu PW.2 and constable Puna Ram PW.1. 28. Thus, proved is that the appellant was driving the vehicle in which below seat in tool box kept was tin containing this substance. 29. PW.12 states that impression of seal was placed on memo of recovery Ex. P. 10 then and there, malkhana incharge Mangilal PW. 4 proves depositing packets in Malkhana and making entry Ex. P.3, but not mention about seal or impression of seal. Malkhana entry Ex. P.3 does not find mention of depositing memo of impression on description of seal. 30. Sample of packet was deposited in laboratory by constable Prema Ram with forwarding letter Ex. P. 8 of the office of S.P. Described in Ex. P.8 is that along with packet are six papers-receipt Ex. P. 7 and report Ex. P. 24 mention number and date of forwarding letter Ex. P.8. Bhabhut Singh PW. 7 constable working in the concerned section of S.P. Office and constable Prema Ram P.W. 6 say that Prema Ram receiving packets from malkhana incharge PW 4 handed over to PW.7 who after getting documents (forwarding letters) prepared with documents handed over packet to Prema Ram who deposited in laboratory. Thus, documents were also forwarded and deposited in laboratory. Clear appears that copy of memo of seizure that in Ex. P.10 forwarded and Ex. P.10 bears impression of seal. On Ex. Thus, documents were also forwarded and deposited in laboratory. Clear appears that copy of memo of seizure that in Ex. P.10 forwarded and Ex. P.10 bears impression of seal. On Ex. P.10 seal is of impression JSB tallying with name of PW.12. As sample is proved to be containing the die-acetyl morphine stands proved that the entire substance was such, that is heroin coming within ambit of opium derivative and manufactured drug. 31. On the strength of (1) appellant being only driver and (2) what was said by Dy. S.P. to SHO he if at all did was only to place in and (3) not was appellant in truck No. 3675 per FIR of accident, is argued that the appellant could never have known and did not knew about this substance. 32. Trying to analyze this argument, per FIR of accident Ex. P.14 that vehicle GTF 3675 was driven by Gomsingh- appellant Narainpuri was not in that vehicle. SHO PW.12 states that Dy. S.P. told him of the information given to S.P. and communicated to Dy. S.P. was that Gom Singh was driving vehicle GTF 3675 and on accident, brought was vehicle nishan truck No. RJC 3068 driven by Narayanpuri and then as Gom Singh was also injured they all taken to hospital. Learned counsel argued that only on simple plain asking of Gom Singh, if appellant just put in a small tin of grease, that does not result, show or disclose possession of appellant Narayanpuri. In this context, also is submitted that grease being essential for maintenance of vehicle, is to be kept ready in every vehicle. In the considered opinion of the Court, the above argument is not of any substance because Narainpuri was driving the vehicle and if above argument is accepted, then as he was there only for helping injured. (Then, definitely, no occasion arose and in normal course) had no occasion, reason or would not have taken the tin from that vehicle 3675 and to keep it in 3068 without reason. Above if true, then Narainpuri did so certainly with some definite knowledge, than it is conscious possession. (Then, definitely, no occasion arose and in normal course) had no occasion, reason or would not have taken the tin from that vehicle 3675 and to keep it in 3068 without reason. Above if true, then Narainpuri did so certainly with some definite knowledge, than it is conscious possession. In addition, per narration of information (that tin was placed by appellant-and no other material) on which argument is based, appellant was in that vehicle 3675 and Gom Singh was injured- If Gom Singh was injured, he could not have asked for, nor appellant ought to have given any attention or heed to asking of taking and keeping this grease tin. 33. Thus, appeal regarding conviction is to be rejected. Appellant is convicted for the offence of Sections 21 and 29 - separate punishment on each count is ten year' rigorous imprisonment with fine of Rupees one lac - in default one year rigorous imprisonment - substantive sentence to run concurrently. Thus, though concurrently running imprisonment is but separate for default of fine on each count. 34. Under Section 21 is punishment for possession, sale, purchase, transport, manufacture etc., whereas under Section 29 punishment is for conspiracy to commit or abatements. As convicted under Section 21 for possession and transporting, then no occasion arises for separate conviction and sentence for the offence of Section 29. Therefore, separate punishment awarded for the offence of Section 29 is to be set aside. 35. In default of payment of fine, appellant has to undergo rigorous imprisonment for Rupees one lac. Appellant is a driver not having sufficient means so the sentence in default of payment deserves to be reduced to six months rigorous imprisonment. 36. Accordingly, upholding conviction of appellant for the offence under Section 21of the NDPS Act the appeal is rejected. Sentence awarded of imprisonment in default of payment of fine of Rupees one lac is little altered and the appellant to under six months rigorous imprisonment in default of payment of fine of Rupees one lac. Thus, appellant for the offence punishable under Section 21 of the Act to undergo ten years rigorous imprisonment and to pay fine of Rupees one lac in default of payment to undergo further six months rigorous imprisonment. Thus, appellant for the offence punishable under Section 21 of the Act to undergo ten years rigorous imprisonment and to pay fine of Rupees one lac in default of payment to undergo further six months rigorous imprisonment. Appellant Narayanpuri who is on bail cancelling his bail bonds, is ordered that to surrender forthwith before the trial Court and the trial Court is also directed to secure his presence to serve out the remaining sentence.