JUDGMENT 1. - Accused appellants Kulwant Rai and Kuldeep Singh @ Kiya have preferred this appeal against the judgment of conviction and order of sentence dated 17.7.2008 passed by the learned Special Judge, N.D.P.S. Act Cases, Jaipur in Special Sessions Case No. 15/2005 whereby the appellants have been convicted for offence u/s 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced to 10 years' RI along with fine of Rs. 1,00,000/-, in default whereof to further undergo one year's RI. 2. The facts in brief are that on 8.10.2004, SHO, Police Station Kotputali, Shri Ghanshyam Sharma (PW-11) along with his patrolling party left police station at 9.30 p.m. and reached at Paniyala Check Post from where he accompanied the Nakabandi staff and reached Narnaul Road for patrolling duty. During Nakabandi at about 11.15 p.m., he received a secret information that a truck bearing no. PB-10B-9982 coming from Jaipur was carrying Dodapost Chura in separate cabin in the truck body. This information was recorded by SHO Ghanshyam Sharma (PW-11) and was sent to his superior through constable Kalu Ram (PW-6) and PW-1 Shankar was sent to bring independent witnesses. At about 12.15 a.m., said truck crossed that place and was intercepted wherein two persons were found. The accused appellant Kuldeep Singh @ Kiya was on the driving seat whereas the other was sitting next to him who, on being asked, disclosed his name to be Kulwant Rai. After having obtained their consent, got the photography of the truck done and after having got their consent in the presence of independent witnesses Gheesa Lal and Ganga Sahai, the truck was searched and in the body of the truck, twenty three gunny bags containing Dodapost Chura were found in the rack. The gunny bags were offloaded with the help of one Kailash The accused on being asked about the licence or permit for possessing / transporting the Dodapost Chura, denied having one. The Ginny bags weighed 966.400 Kg. Thereafter in presence of independent witnesses samples of 250 gms. were taken from the 23 Ginny bags and were sealed and remaining bags were also sealed and marked as "A-1" to "W-1" and the control samples were marked as "A-2" to "Z-2". The seizure memo was prepared. On further search of papers of truck were found which were also seized. Thereafter in presence of independent witnesses samples of 250 gms. were taken from the 23 Ginny bags and were sealed and remaining bags were also sealed and marked as "A-1" to "W-1" and the control samples were marked as "A-2" to "Z-2". The seizure memo was prepared. On further search of papers of truck were found which were also seized. The seal used, was separately sealed as mark "X". The accused persons Kulwant Rai and Kuldeep Singh @ Kiya informed that the said narcotic was loaded by Kailash and the gunny belonged to one Balvinder Singh. The telephone diary seized from the possession of Kulwant Rai showed the number of Balvinder and some others. After informing them the reason of arrest, both the accused were arrested and after completion of formalities, a case was registered and the seized samples and articles were deposited in Malkhana and file was handed over to the C.O. for investigation. 3. During investigation, the Investigating Officer, prepared the site plan sent the seized samples for FSL and the investigation against co-accused Kailash and Balvinder was kept pending u/s 173(8) Cr.P.C. However, after a while, the other co-accused Balvinder was also arrested and supplementary charge sheet was filed. 4. After hearing the charge arguments, the learned Special Judge, read over the charge u/s 8/15 of the Act which was denied by them and trial was claimed. In order to prove its case, the prosecution examined as many as 13 witnesses and exhibited 37 documents. Accused were examined under section 313 Cr.P.C. They alleged false implication but did not lead any defence evidence. 5. Learned Trial Court, on the basis of material placed before it, recorded the finding of guilt against the present two accused appellants for offence u/s 8/15 of the Act whereas accused Balvinder was acquitted. The appellants, being aggrieved of the said conviction and sentence, have preferred this appeal. 6. Heard the learned counsel for the appellants as also the learned Public Prosecutor. The impugned judgment has been assailed by the learned counsel for the appellants on the sole ground that mandatory provisions of section 42 of the Act have not been complied with. 7. The appellants, being aggrieved of the said conviction and sentence, have preferred this appeal. 6. Heard the learned counsel for the appellants as also the learned Public Prosecutor. The impugned judgment has been assailed by the learned counsel for the appellants on the sole ground that mandatory provisions of section 42 of the Act have not been complied with. 7. Per contra, the learned Public Prosecutor strongly supported the impugned judgment stating that the learned Special Judge has rightly over-ruled and discarded the arguments advanced before it by holding that the provisions of section 42 of the Act were not attracted in the facts and circumstances of the case. According to him, instead section 43 of the Act was attracted because the Police Officer intercepted the truck in this case at a public place which was in transit and therefore, section 42 of the Act was not applicable. According to him, Shri Ghanshyam Sharma (PW-11) was on patrolling duty when he received the information, whereafter, the truck was seen coming from the other side which was intercepted in a public place. Although, on receipt of the secret information, he had recorded it and sent to his superior (SP) who is claimed to have received the secret information along with recording at about 4.45 AM i.e. immediately thereafter. 8. Considered the arguments. 9. Ghanshyam Sharma (PW 11) is the SHO who claims to have gone on patrolling duty from police station at 9.30 PM and at about 11.15 when he was at Paniyala Mod, he received a secret information about the said truck coming from Jaipur with contraband. He recorded this information as Ex.P 11 and sent it vide letter Ex. P 10 to his seniors. The Nakabandi was started after taking the checkpost staff. At about 12.15 a.m. said truck No. PB-10B-9982 came wherein two persons were sitting. On being asked, they disclosed their names as Kulwant Rai and Kuldeep Singh @ Kiya. Constable Shankar Lal was sent with Ex. P-1 to bring independent witnesses who brought Ganga Sahai and Ghasi Lal and after obtaining their consent Ex. P-13 and P-29, the proceedings were started. The photographer was called from the police station by sending QST. After obtaining the written consent Ex. P-14 and Ex. P-15, the truck was searched and 23 gunny bags containing poppy straw were found in the cabin which on weighing weighed 966.400 Kg. P-13 and P-29, the proceedings were started. The photographer was called from the police station by sending QST. After obtaining the written consent Ex. P-14 and Ex. P-15, the truck was searched and 23 gunny bags containing poppy straw were found in the cabin which on weighing weighed 966.400 Kg. out of which two samples of 250 gms each was taken out from 23 bags. After having taken the samples, the remaining gunny bags were seized totaling 966.400 Kg. The seizure memo was prepared as Ex. P 16 in the presence of witnesses. The gunny bags were sealed and Fardnamuna seal were prepared as Ex. P-18 and Ex. P-19. The documents pertaining to the truck were seized as Ex. P-17. The registration certificate, insurance cover note, the transport tax receipt as Ex. P-32 and Ex. P-33 were seized. The telephone diary recovered from accused Kulwant Rai was Ex. P-33 and other diary as Ex. P 34 were seized. After completing the proceedings, the witness alongwith accused persons and seized truck, came to the police station and registered the FIR Ex. P-36 and deposited the seized articles in the Malkhana and sent information Ex. P-4 u/s 57 of the Act to the senior officer. The investigation was handed over to the Dy. Superintendent of Police. The Letter Ex. P 23 was sent to the SP office for issuing the forwarding letter. Inventory report Ex. P-33 was got prepared from the Judicial Officer. The statements of PW 11 have been corroborated by other members of the patrolling party and the independent witnesses, Malkhana incharge as also the Judicial Officer. 10. Other witnesses who were members of the patrolling party and were assigned with other duties relating to the search have corroborated the statements of PW 11. PW-1 Shankar Lal, constable has deposed about having been sent by SHO Ghanshyam Sharma (PW 11) with Ex. P-1 Tehrir to bring the independent witnesses and who claims to have brought Ghasi Lal (PW-7). This witness has further deposed that accused persons had been informed about their being intercepted and about search of the truck who agreed to give their search to the SHO. After obtaining the written consent from them, the truck was searched. He witnessed the entire proceedings conducted by Ghanshyam Sharma (PW-11). This witness has further deposed that accused persons had been informed about their being intercepted and about search of the truck who agreed to give their search to the SHO. After obtaining the written consent from them, the truck was searched. He witnessed the entire proceedings conducted by Ghanshyam Sharma (PW-11). Amar Singh (PW-2) was also a constable on the relevant date who had been sent by head Mohrir to go to Paniyala Checkpost. He is the witness who took the information u/s 57 NDPS Act, Ex. P 4 to SP office. He has proved his departure in the Rojnamcha, Ex. P-5, his return as Ex. P-6 Rajendra Singh (PW-3), head constable, Police Station Kotputali was also a member of the patrolling party and in whose presence, the search was made and the samples were seized and the accused were arrested. Sanjay and Raju, PW 4 and PW 5 have been declared hostile. 11. Kalu Ram PW 6, is the constable who carried Ex P-10 the letter and Ex. P-11, the secret information to the SP office whose departure and return entries have been proved as Ex. P-12. Ghasi Lal Sharma, PW 7, is the Sub-Inspector, Transport Department who accompanied ACTO Ganga Sahai and gave his consent to become the witness. Two witnesses along with Ganga Sahai claimed to have reached at about 11.30 p.m. at the spot. The witness has proved notices u/s 50 as Ex. P 14 and 15, seizure memo of truck Ex. P 17, the specimen seal and sample seal Ex. P 19, site plan Ex. P 20, articles 1 to 23 samples and packets and arrest memos of accused persons as Ex. P 1 to Ex.P-3. During cross examination, he could not be shattered and has supported the prosecution case. Ram Singh PW 8 and R.C. Yadav PW 9 was also a constable who are also witnesses to the site plan Ex. P.21. 12. Banna Lal PW-10 who was constable on 9.10.2005 has deposed that 46 samples were sealed and the truck as also the other articles seized and sealed packets had been given by SHO, Ghanshyam Sharma to deposit it in the Malkhana who entered it in Malkhana register and sealed packets being marked as "A-1" to "W-1" were taken by him for forwarding letter for FSL. He took Ex. P 23 letter with him and recorded his departure as Ex. He took Ex. P 23 letter with him and recorded his departure as Ex. P 24 in the Rojnamcha Rapat and he took those packets to SP Office. The letter Ex. P 25 was given to the SP for forwarding letter for FSL and got Ex. P 26 and on his return the Rojnamcha entry Ex. P 23. 13. Keshar Singh Shekhawat (PW 12) was the C.O. Kotwali at the time of incident who is Investigating Officer and during investigation, he recorded the statements of the witnesses and for further investigation, as per the directions of SP, he handed over the file to CO. Ms Rita Tejpal (PW 13) is the Judicial Officer who was ACJM, Kotputali, prepared the inventory Ex.P 46 by the order of CJM and in this inventory, the sample was affixed and all the samples were sealed in her presence. 14. The only thrust of arguments advanced by the learned counsel Shri Anshuman Saxena was with regard to the provisions of section 42 of the Act. It is a settled position of law that the provisions u/s 42 of the Act, are mandatory as held by the Apex Court from time to time. But the question is as to whether section 42 of the Act was applicable or not in the facts of this case. For appreciating the said arguments advanced by the learned counsel for the appellants, it is necessary to look into the provision contained in 42 of the Act. Section 42 of the Act reads as under : "42. Power of entry, search, seizure and arrest without warrant or authorisation - (1) Any such officer ------------------------- if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, --------------------------------------- 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) ----------------------------------------- (c) ----------------------------------------- (d) ----------------------------------------- Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording --------, 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 within seventy-two hours send a copy thereof to his immediate official superior." 15. As is clear from above, that if the officer mentioned in section 42 of the Act accepts the information that any Narcotic Drugs etc., is kept or concealed in a building, conveyance or enclosed place, he may enter between sunrise and sunset. Meaning thereby that the compliance of section 42 of the Act is necessary if a drug is kept or concealed in a building or enclosed place and section 42(a) authorises the offences empowered under this section to enter any such building, conveyance or place. 16. It is not out of place to mention here that the word "conveyance" also finds place in section 43 which is attracted in a case where the police officer seizes in any public place or any transit any narcotic drug and along with such drug, the police officer may also seize animal or conveyance or article liable to be confiscated under the Act. Meaning thereby, the provisions of section 42 of the Act mandatorily apply if a building, conveyance or enclosed place is to be entered and searched and not where search is conducted in a public place. Since in the case in hand, the search was conducted at Paniyala Mod i.e. a public place on road and a public place and not any enclosed place, section 43 of the Act was applicable and not 42 of the Act and the public place as given in the explanation is a place intended for use by or accessible to public. 17. The drug in question was intercepted at a public place at Paniyala Mod, which by no stretch of imagination, can be said to be an enclosed place. 18. Moreover, in the case in hand, the police officer on receipt of secret information, recorded it in writing and along with recording, he also sent the secret information through Kalu Ram (PW 6) to his superior which was received by the SP office in the early hours of the same morning. Therefore, the argument advanced by the learned counsel for the appellants that the mandatory provisions under section 42 of the Act have not been complied with, is not sustainable. 19. Therefore, the argument advanced by the learned counsel for the appellants that the mandatory provisions under section 42 of the Act have not been complied with, is not sustainable. 19. In the case in hand, the provisions of section 42 of the Act were not attracted instead the search being made at a public place, section 43 of the Act was attracted. 20. For the foregoing reasons, I do not find any error in the impugned judgment and hence the appeal being devoid of merit deserves to be dismissed and is hereby dismissed. 21. The judgment and sentence awarded by the learned Trial Judge is upheld. *******