JUDGMENT Surinder Singh, J (Oral). The appellant has challenged the judgment of his conviction passed by the learned Special Judge, Shimla under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 as also under Section 61(1) (a) of the Punjab Excise Act, 1914, whereby, he was sentenced to undergo the imprisonment under each of the Sections as follows:- Section 20 of the Rigorous imprisonment for two years and to pay a fine of Narcotic Drugs Rs.5,000/-. In default of payment of fine, further to and Psychotropic undergo simple imprisonment for a period of three months. Substances Act . Rigorous imprisonment for three months and to pay Section 61 (1) (a) a fine of Rs.1,000/-. In default of payment of fine, further of the Excise Act to undergo simple imprisonment for a period of one month. All the sentences were ordered to run concurrently. 2. In short, the prosecution story as unfolded by the prosecution witnesses, can be stated thus. PW-15 ASI Vijay Kumar was posted in Special Investigation Unit (SIU), Bantony, Shimla. On 18.12.2008, at about 3.15 p.m., he was in the area of Lower Bazar in connection with a routine patrol duty alongwith PW-1 Ashwani Kumar and PW-6 Constable Vishal. (ii) ASI Vijay Kumar aforesaid received the secret information that the accused who was running a tea stall in Lower Bazar, was dealing in contraband. As such, he reduced this information into writing Ext. PW-1/A to satisfy the provisions of Section 42 (2) of the Act and routed the same to the Superintendent of Police through PW-6 Constable Vishal and delivered it over to PW-9 Balbir Singh, Reader to the S.P., who placed it before the S.P. concerned. (iii) The police party headed by ASI Vijay Kumar (PW-15) included independent witnesses PW-4 Gurmeet and PW-5 Praveen Kumar and thus constituted a raiding party. They reached the tea stall of the accused. He was found present there. Police informed the purpose of the visit to him and intended to search his premises, thus, they rendered themselves to be searched by the accused. During the search by the accused, nothing incriminating was found, as such, memo Ext. PW-1/B was prepared. They reached the tea stall of the accused. He was found present there. Police informed the purpose of the visit to him and intended to search his premises, thus, they rendered themselves to be searched by the accused. During the search by the accused, nothing incriminating was found, as such, memo Ext. PW-1/B was prepared. (iv) Thereafter, the police in the presence of the aforesaid witnesses conducted the search of the tea stall premises of the accused and recovered an envelop from the dustbin which contained 700 grams of “Charas” and 18 bottles of country liquor of “Saroor” brand, kept beside the gas cylinder. (v) Two samples of 25 grams each were drawn from 700 grams of the recovered stuff. Each of the sample parcels were sealed with seal impression “V”, remaining stuff was also sealed with the same seal and taken into possession vide seizure memo Ext. PW-1/C. Each of the parcels as well as the recovery memo were signed by the nonofficial witnesses aforesaid. (vi) Thereafter, three bottles of country liquor were taken as sample from the recovered lot. Each of the bottles were sealed with seal impression “V”, remaining bottles were also sealed with the same seal and taken into possession vide recovery memo Ext. PW-1/C. Similarly, each of the sample bottles of the country liquor and recovery memo were also signed by the independent witnesses. (vii) After the use of the seal, its specimen was drawn on a piece of cloth Ext. PW-1/D. The recovery of the aforesaid articles was got photographed from PW-15 Constable Vijay Kumar. The photographs are Ext. PW-1/F-I to Ext. PW-1/F-9. (viii) The accused was arrested. The grounds of arrest were informed to him vide memo Ext. PW-1/G. (ix) Rukka was sent for registration of the case which culminated into FIR Ext. PW-6/B. (x) The case property was deposited with PW-14 Inspector/SHO Shakuntla. She filled in the NCB form Ext. PW-14/B. (xi) The case property was deposited by Inspector/SHO Shakuntla aforesaid with MHC PW-8 Sita Ram alongwith the NCB forms and specimen seals. Its entry was made in the Malkhana register, the abstract whereof is Ext. PW-8/A. (xii) On 23.12.2008, one sample packet of the contraband, NCB forms and specimen impressions were sent to the Chemical Examiner through PW10 Constable Satpal vide R.C. No. 185/2008, Ext. Its entry was made in the Malkhana register, the abstract whereof is Ext. PW-8/A. (xii) On 23.12.2008, one sample packet of the contraband, NCB forms and specimen impressions were sent to the Chemical Examiner through PW10 Constable Satpal vide R.C. No. 185/2008, Ext. PW-8/B. On 4.9.2008, he also sent remaining two sealed packets vide R.C. No. 132/2008 through PW-11 Constable Mahesh Kumar for its examination. Three sample bottles of country liquor duly sealed were also sent for chemical examination v ide R.C. No. 186/2008, Ext. PW-8/C through PW-12 HHC Hukam Chand. The entry with respect to the liquor bottles was also recorded in the Malkhana register. (xiii) All the three parcels of “Charas” were accordingly deposited in the Forensic Science Laboratory, Junga for its examination. The sample which was sent through PW-10 Constable Satpal, was received in the laboratory on 28.12.2008 and other two parcels on 4.9.2009. Qua the first parcel, report is Ext. PX-I and qua other two parcels, the report is Ext. PX-2 which tested positive for “Charas”, according to which, these parcels were extracts of cannabis and sample of “Charas”. (xiv) The report of the CTL, Kandaghat qua the country liquor sample is Ext. PX. In the opinion of the Chemical Examiner, these were samples of country liquor 48° proof of alcoholic strength in each of the bottles. (xv) The police had also prepared Site Plan Ext. PW-15/A of the place of alleged recovery. The special report was also sent to the S.P. concerned with respect to the seizure and arrest within the statutory period. 3. After completing the investigation, the case was presented for trial of the accused. He was accordingly charge-sheeted for the offences aforesaid, to which he pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. The circumstances, which were found attendant upon him, were denied. However, he pleaded innocence and alleged false implication, but did not lead any evidence in defence. 5. At the end of the trial, the accused was found guilty for both the offences, as such, he was convicted and sentenced, as stated above. Hence, the present appeal. 6. Shri M.L. Brakta, learned Counsel for the accused-appellant vehemently argued that there is non-compliance of Section 42 (2) of the Act and further that the independent witnesses have turned hostile. At the end of the trial, the accused was found guilty for both the offences, as such, he was convicted and sentenced, as stated above. Hence, the present appeal. 6. Shri M.L. Brakta, learned Counsel for the accused-appellant vehemently argued that there is non-compliance of Section 42 (2) of the Act and further that the independent witnesses have turned hostile. The statements of the official witnesses are contradictory, which render the prosecution case a suspect. 7. On the other hand, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and submitted that the recovery from a ‘public place’ under Section 42(2) of the Act is not attracted and further that the contradictions, as pointed out by the learned Counsel for the appellant-accused, are of very minor nature which do not shatter the recovery of the aforesaid incriminating articles. According to him, the learned trial Court has properly appreciated the evidence on record, thus there is no misappropriation or mis-interpretation of the evidence, hence, no interference is called for. 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and meticulously examined the evidence on record. 9. Though, in the instant case, there was a prior information to the police party with respect to the accused dealing in contraband and it was reduced into writing which was sent to the S.P. concerned, as stated above. 10. It is well settled that the provisions of Section 42 of the Act are mandatory and noncompliance thereof would affect the prosecution case and vitiate the trial. It is worth while to mention here that Section 42 of the Act empowers the officers even without a warrant issued as provided under Section 41, that he will have the power to enter, search, seize and arrest between sunrise and sunset if he has reason to believe from personal knowledge or information given by any other person and taken down in writing that an offence under Chapter IV has been committed or any document or other article which may furnish the evidence of the commission of such offence in any building, fence or enclosed place. This Section lays down that if the personal search of any suspected person is carried out in a public place, the empowered officer has to give information about it in writing to his immediate official superior. 11. This Section lays down that if the personal search of any suspected person is carried out in a public place, the empowered officer has to give information about it in writing to his immediate official superior. 11. In State of Punjab versus Balbir Singh, 1994 Cri. L.J. 3702 the Apex Court in para 12 observed as under: “But there are certain other embargos envisaged under Ss. 41 and 42 of the NDPS Act. Only a magistrate so empowered under Section 41 can issue a warrant for arrest and search where he has reason to believe that an offence under Chapter IV has been committed so on and so forth as mentioned therein. Under sub-section (2) only a Gazetted Officer or other officers mentioned and empowered therein can give an authorization to a subordinate to arrest and search if such officer has reason to believe about the commission of an offence and after reducing the information, if any, into writing. Under S. 42 only officers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information. In both these provisions there are two important requirements. One is that the Magistrate or the Officers mentioned therein firstly be empowered and they must have reason to believe than an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the provisions. So far as the first requirement is concerned, it can be seen that the Legislature intended that only certain Magistrates and certain Officers of higher rank and empowered can act to effect the arrest or search. This is a safeguard provided having regard to the deterrent sentences contemplated and with a view that innocent persons are not harassed. Therefore if an arrest or search contemplated under these provisions of NDPS Act has to be carried out, the same can be done only by competent and empowered Magistrates or Officers mentioned thereunder.” 12. Thus, it emerges that Section 42 of the Act is not applicable to a case where search has not been carried out in any building, fence or enclosed place. In the instant case, the recovery of the alleged contraband was effected from the tea stall being run by the accused, which is a “public place”. Thus, it emerges that Section 42 of the Act is not applicable to a case where search has not been carried out in any building, fence or enclosed place. In the instant case, the recovery of the alleged contraband was effected from the tea stall being run by the accused, which is a “public place”. Consequently, I have no hesitation in coming to the conclusion that provisions of Section 42 of the Act are not applicable in the present case. Though, an attempt was made by the Investigating Officer to satisfy these provisions and I also do not find any ambiguity therein. 13. In so far as the contradictions are concerned, the learned Counsel for the accused pointed out (i) PW-1 H.C. Ashwani Kumar stated that the information Ext. PW-1 was written by the Investigating Officer in the police post opposite to S.P. Office, whereas PW-15 ASI Vijay Kumar deposed that it was prepared outside in the bazaar. (ii) PW-1 H.C. Ashwani Kumar stated that he was in the office till 3.00 p.m. and went on patrolling duty at 3.15 p.m., whereas PW-13 Ms. Ranjana stated that she was on duty since 10.00 a.m. and PW-15 ASI Vijay Kumar says that he was on patrolling duty during the day time. 14. On the scrutiny, I find these contradictions quite insignificant which do not shatter the foundation of the prosecution case. The recovery of the contraband stands proved from the tea stall of the accused in his presence and the witnesses could not be shattered in any way so far as the recovery is concerned. Even the hostile witness PW-4 Gurmeet admitted his signatures on the seizure memo as also on each of the parcels prepared on the spot. He also admitted his signatures on the specimen seal obtained from the spot. Initially, he stated that he had not seen lower bazaar and not gone to the shop of the accused, but in the cross-examination, he stated that he remained there for 45 minutes and thereafter he returned to his shop. PW-5 Parveen Kumar in the cross-examination conducted by the learned Public Prosecutor admitted that the police had taken down the packets containing “Charas” from the dustbin of the accused, examined the same and found it to be a ‘contraband’. PW-5 Parveen Kumar in the cross-examination conducted by the learned Public Prosecutor admitted that the police had taken down the packets containing “Charas” from the dustbin of the accused, examined the same and found it to be a ‘contraband’. He also admitted his signatures on the documents prepared on the spot as well as on the parcels of the seized material. 15. The critical examination of the hostile witnesses also affirms that the alleged recovery was made from the tea stall of the accused. They have turned hostile to the prosecution for the obvious reason. 16. It is well settled that the statements of the hostile witnesses cannot be thrown above board and it can be used either by the prosecution or the accused to the extent it helps them. In the instant case, PW-15 Investigating Officer ASI Vijay Kumar, PW-1 H.C. Ashwani Kumar and PW-13 LHC Ranjana have categorically stated about the recovery of the aforesaid narcotic from the dustbin lying in the shop of the accused and the country liquor bottles from the tea stall which was being run by the accused. Even the hostile witnesses corroborate it in material particulars. The recovered articles were handed over to Inspector/SHO Shakuntla who deposited it with MHC PW-10 Satpal and she deposited and kept it in safe custody in the Malkhana against the entry in the Malkhan register alongwith the samples of the seals and NCB forms. As discussed above, these articles were sent through road certificates to the Forensic Science Laboratory, Junga as well as CTL, Kandaghat for its examination and the scientific reports, as referred above, confirm it to be a ‘contraband’ (Charas) and country liquor as 40° proof of alcoholic strength in each of the bottles. 17. The link evidence, in the instant case, is complete without giving rise to any doubt. As such, in my considered opinion, the evidence on record was rightly appreciated and interpreted by the learned trial Court. 18. Thus for the reasons above, in my considered opinion, the conviction and sentence passed by the learned trial Court in the present case cannot be faulted with, as such, the appeal is merit less, hence dismissed.