JUDGMENT 1. - The appellants have preferred this appeal against the judgment of conviction and order of sentence dated 29.10.1988 passed by the learned Sessions Judge, Barmer in Sessions Case No.117/1987, whereby the appellants-accused were convicted and sentenced for the offences under Sections 20(ii), 23 and 29 of the NDPS Act and were sentenced to undergo 15 years' rigorous imprisonment with fine of Rs. 1,00,000/-, in default of payment whereof, to further undergo one year's rigorous imprisonment. 2. The brief facts of the case are that on 29.08.1987, on the nakabandi of the officers of Revenue Intelligence Directorate, Jaisalmer with the officers of Customs Department, Barmer at Harsani Fanta, at about 7.00 a.m., two persons were seen coming there, who were stopped and searched. During inquiry, one persons named himself as Jugat Singh and other as Kamal Singh and both were having bags in their hands. On search of bags, 11 packets of charas were found in the bag hold by Jugat Singh weighing 10.850 kg. and 5 packets of charas were found in the bag hold by Kamal Singh weighing 5 kg. The samples were taken and were sent for chemical examination. After completion of investigation, filed charge-sheet against the appellants-accused on 23.11.1987 in the court of Munsif and Judicial Magistrate, Barmer for the offences under Sections 20, 21, 23 and 29 of the NDPS Act. Thereafter, the case was committed to the court of learned Additional Sessions Judge, Barmer (for short 'the learned trial court'). 3. After hearing on charge, the learned trial court framed charges for the offences under Sections 20(ii), 23 and 29 of the NDPS Act against the appellants-accused, to which they denied and claimed trial. To substantiate the charges, the prosecution examined as many as 5 witnesses. The appellants-accused were thereafter examined under Section 313 Cr.P.C., wherein they denied the prosecution case and examined five witnesses in defence. After trial, the learned trial court, convicted and sentenced the appellants-accused vide impugned judgment dated 29.10.1988 as aforesaid. Hence, this appeal. 4. I have heard Mr. Vineet Jain, learned counsel for the appellant and Mr. Jagat Tatia, learned Special Public Prosecutor. 5. The learned counsel for the petitioner submitted that there is total non-compliance of Section 42 of the NDPS Act and the prosecution has also failed to establish link evidence. Hence, this appeal. 4. I have heard Mr. Vineet Jain, learned counsel for the appellant and Mr. Jagat Tatia, learned Special Public Prosecutor. 5. The learned counsel for the petitioner submitted that there is total non-compliance of Section 42 of the NDPS Act and the prosecution has also failed to establish link evidence. It was also submitted by him that the confessional statements (Ex.P/2 and Ex.P/3) of the appellants recorded under Section 108 of the Customs Act are not admissible in evidence as the same were recorded after their arrest and thus it cannot be said that the same were given voluntarily. It was thus prayed that the appeal may be allowed and the appellants-accused may be acquitted. He has placed reliance upon the judgments delivered in the cases of Raju Premji v. Customs, NER, Shilong Unit [(2010) 3 SCC 344] , Sukhdev Singh v. State of Haryana [ (2013) 2 SCC 212 ] and Noor Aga v. State of Punjab & Anr. [ (2008) 16 SCC 417 ]. 6. Per contra, the learned Special Public Prosecutor supported the impugned judgment and order and submitted that in the present case, provisions of Section 42 of the NDPS Act are not applicable as the search was made at a public place. It was also submitted by him that the confessional statements were recorded at the time of arrest and thus it cannot be said that the same were not given voluntarily. All the witnesses have consistently stated about the incident and no link is missing. Thus, the learned trial court has rightly convicted and sentenced the appellants-accused, which does not warrant any interference. He has placed reliance upon the judgments delivered in the cases of Mohd. Hussain Farah v. Union of India [ (2000) 1 SCC 329 ] , Veer Singh v. State of Rajasthan [RLW 2013 (1) Raj. 216] and Kanhaiyalal v. Union of India [ (2008) 4 SCC 668 ]. 7. I have considered the rival submissions made at the Bar and perused the material available on record. 8. Before parting with the judgment, I deem it appropriate to scan the evidence led before the trial court. 9. Virendra Narang (PW-1), in his statement, deposed that on 29.08.1987, he was posted as Superintendent, Custom Department, Barmer and on that day, he went with the team of DRI at Harsani Phanta and he ordered Hameera Ram Choudhary to bring motbirs. Before parting with the judgment, I deem it appropriate to scan the evidence led before the trial court. 9. Virendra Narang (PW-1), in his statement, deposed that on 29.08.1987, he was posted as Superintendent, Custom Department, Barmer and on that day, he went with the team of DRI at Harsani Phanta and he ordered Hameera Ram Choudhary to bring motbirs. Thereafter, after some time, two persons were seem to be coming who were stopped and on their search, 16 packets containnig charas were recovered, which was seized and sealed after taking samples and prepared seizure memo (Ex.P/1). Thereafter, the statements of appellants-accused (Ex.P/2 and Ex.P/3) were recorded. 10. Sohanraj Khandelwal (PW-2), Inspector Customs Department, Barmer and Rs. Meena (PW-3) Revenue Intelligence Officer, Revenue Intelligence Directorate, Sub Division Jaisalmer also corroborated the statement of Virendra Narang (PW-1). 11. Chainaram (PW-4) is a motbir, in-front-of whom, recovery was made and he proved seizure memo (Ex.P/1), arrest memo of appellants-accused (Ex.P/7 and Ex.P/8). 12. Hameera Ram (PW-5) also corroborated the statement of Virendra Narang (PW-1). 13. Hukma Ram (DW-1), in his statement, deposed that on 28.08.1987, he was posted as Constable, Customs Department, Barmer. On that day, Inspector Hameera Ram and R.S Meena came to the office and bring 16 packets of charas, which was weighed and sealed and papers were prepared. It was also stated by him that the appellants-accused were not brought with the articles but they were brought thereafter. 14. Jaswant Singh (DW-2), in his statement, deposed that he know Jugat Singh. On 11.06.1987, appellant-accused Jugat Singh was beaten in the police station by the SHO, Poona Ram, for which Jugat Singh filed a complaint. It was also stated that Hameera Ram pressurised Jugat Singh to withdraw the case otherwise to face the music. 15. Kosla (DW-3) stated that his dhani is situated near Harsani Phata and he did not know Chena Ram. 16. Nawal Singh (DW-4), in his statement, deposed that he was Sarpanch from 1980-1981 to 19988 of Village Jalipa and he knew Osna Ram and his dhani is situated 1= km. away from Harsani Phanta and no other man of this name lives in the Jalipa. 17. Het Dan (DW-5) , in his statement stated that he was the counsel for Shaitan Singh and stated that during the filing of challan, whatever copies he received, he handed over the same to the Investigating Officer Hameera Ram. 18. away from Harsani Phanta and no other man of this name lives in the Jalipa. 17. Het Dan (DW-5) , in his statement stated that he was the counsel for Shaitan Singh and stated that during the filing of challan, whatever copies he received, he handed over the same to the Investigating Officer Hameera Ram. 18. From a careful scrutiny of evidence, it reveals that Hameera Ram (PW-5) received information, which he got recorded and met with the Customs Superintendent and thereafter proceeded to Harsani Phanta and started nakabandi and during nakabandi, the appellants-accused were searched and from their possession, illegal contraband charas was recovered. All the prosecution witnesses have consistently stated that during the nakabandi, the appellants-accused were searched and illegal contraband was recovered from their possession. Thus, the search was made on public place when the appellants-accused were in transit. Hence, it is to be seen that whether provisions of Section 42 of the NDPS Act are applicable or Section 43 of the NDPS Act are applicable, for which the provisions of both these Sections are to be examined. 19. Section 42 of the NDPS Act reads as under:- "42. Hence, it is to be seen that whether provisions of Section 42 of the NDPS Act are applicable or Section 43 of the NDPS Act are applicable, for which the provisions of both these Sections are to be examined. 19. Section 42 of the NDPS Act reads as under:- "42. Power of entry, search, seizure and arrest without warrant or authorisation.- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act 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) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, 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 subsection (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." 20. Section 43 of the NDPS Act reads as under:- "43. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in section 42 may- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.-For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public." 21. From a bare reading of the aforesaid provision, it is clear that the officer empowered under Section 42(1) may detain and search any person whom he has reason to believe to have committed an offence punishable under the NDPS Act. In the case in hand, on receiving secret information, the team went at the place from where the appellants-accused were to come and when they reached, they were searched and were found in possession of illegal contraband. Hence, the search was made on public place in transit and not in a building or place. Thus, there is no non-compliance of any statutory provision. 22. In the matter of Sukhdev Singh (supra), the Hon'ble Supreme Court held that Section 42 of the NDPS Act is a mandatory provision and should be complied with strictly. Hence, the search was made on public place in transit and not in a building or place. Thus, there is no non-compliance of any statutory provision. 22. In the matter of Sukhdev Singh (supra), the Hon'ble Supreme Court held that Section 42 of the NDPS Act is a mandatory provision and should be complied with strictly. As discussed above, it is clear that the search was not made in a building or place. The search was made in a public place, therefore, Section 42 of the NDPS Act does not come into play and Section 43 of the NDPS Act comes into play, which was complied with. Hence, the submission of the learned counsel for the appellants that there was non-compliance of Section 42 of the NDPS Act has no legs to stand. 23. The next submission of the learned counsel for the appellants that the link evidence is missing. From the perusal of the record, it reveals that Sohanraj Khandelwal (PW-2), who was the malkhana incharge, clearly deposed that after recovery, the articles were seized and sealed and deposited in the malkhana and to that effect entry was made in the malkhana register (Ex.P/5A) and a memo of specimen seal affixed on the packets of recovered contraband was also prepared as Ex.P/6. From a bare perusal of FSL Report (Ex.P/13), it also reveals that the seal remained intact when it reached the laboratory for chemical examination. Thus, it nowhere reveals that any evidence was missing. Hence, this submission also has no legs to stand. 24. The next submission of the learned counsel for the appellants is that the confessional statement recorded under Section 108 of the Customs Act are not admissible in evidence and the same cannot be made basis against the appellants-accused. 25. In the matter of Noor Aga (supra), the Hon'ble Supreme Court held that enquiry under Section 108 of the Customs Act is for the purpose of Customs Act and cannot be used for the purpose of convicting accused under the NDPS Act. 26. In the matter of Raju Premji (supra), the Hon'ble Supreme Court held that confession made to a police officer may not be hit by Section 25 of the Evidence Act but yet such confession should be strictly scrutinised by court as to whether it was made voluntarily. 27. 26. In the matter of Raju Premji (supra), the Hon'ble Supreme Court held that confession made to a police officer may not be hit by Section 25 of the Evidence Act but yet such confession should be strictly scrutinised by court as to whether it was made voluntarily. 27. From a bare perusal of the record, it reveals that there is no breach of Customs Act and no offence was registered under the Customs Act. Thus, the provisions of Section 108 of the Customs Act would not be applicable. Further, the offence was found to have been committed under the NDPS Act and the same was made on the basis of the recovery made from their possession and on the basis of link evidence, successfully established by the prosecution. Thus, this submission also has no legs to stand. 28. In view of the above, I find no ground to interfere with the impugned judgment of conviction and order of sentence. The appeal is, therefore, dismissed. The appellants-accused are on bail. They are directed to surrender before the learned trial court for serving the remaining sentence, failing which, the learned trial court shall take steps to send them in State custody for serving the remaining sentence. 29. Record of the court below be returned with a copy of this judgment.Appeal Dismissed. *******