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2019 DIGILAW 3215 (PNJ)

Gurdev Singh v. State Of Punjab

2019-11-28

AJAY TEWARI, ALKA SARIN

body2019
JUDGMENT Alka Sarin, J. - This is an appeal preferred by the appellant against a judgment of conviction and order of sentence dated 06.02.2018 for commission of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as "the NDPS Act"), sentencing the appellant to undergo rigorous imprisonment for a period of 15 years and to pay a fine of rupees two lakhs and, in default of payment of fine, to further undergo rigorous imprisonment for one year. 2. The case as setup by the prosecution was that on 01.02.2015 ASI-Raghunath Singh (PW-2), the Investigating Officer, who was posted as CIA Staff, Jalandhar (Rural), and was present there, received a telephonic call from Inspector Angrej Singh, In-charge, CIA Staff, Jalandhar (Rural), that accused person in Case No. 11 dated 01.02.2015 under Section 21/61/85 of the NDPS Act, Police Station Kartarpur (Jalandhar), had suffered a disclosure statement that they had purchased heroine in the above-mentioned FIR from one Gurdev Singh son of Hira Singh, resident of Village Malluwal, PS Jhabal. It was further disclosed by the said accused person that on 01.02.2015 Gurdev Singh was to provide heroine to them in the afternoon. He further disclosed that the mobile number of said Gurdev Singh is 9855190338 and that he is wearing black coloured pants and grey coloured jacket. Inspector Angrej Singh asked ASI Raghunath Singh to lay naka immediately. ASI Raghunath Singh, after receiving the telephonic information, along with ASI Vijay Singh and other police officials, left in their official vehicle bearing registration number PB-65-9225 for village Sarai Khas. On reaching there, the police party noticed that one person was standing there. ASI Raghunath Singh stepped out of the vehicle and enquired the name of that person who disclosed his name as Gurdev Singh son of Hira Singh, the appellant in the present case. It was further stated by ASI Raghunath Singh that he checked the mobile number of the appellant herein and confirmed it to be the same as given to him by Inspector Angrej Singh. 3. Thereafter, following the procedure laid down in the NDPS Act, a search was carried out which led to recovery of one polythene bag (lifafa) from the front dab of pants of the appellant under the left pocket of jacket. The said polythene bag was found to be containing 1 Kg heroine in it. 3. Thereafter, following the procedure laid down in the NDPS Act, a search was carried out which led to recovery of one polythene bag (lifafa) from the front dab of pants of the appellant under the left pocket of jacket. The said polythene bag was found to be containing 1 Kg heroine in it. 4. The prosecution, in order to prove its case, examined PW-1 DSP Tarsem Singh, PW-2 ASI Raghunath Singh, PW-3 SI Surinder Pal Singh, PW-4 ASI Vijay Singh, PW-5 C Gurjit Singh, PW-6 HC Satnam Singh, PW-7 Inspector Angrej Singh and produced on record the documents i.e. Ex. P1 the non-consent memo, Ex. PA consent memo, Ex. PB the recovery memo, Ex. P2 Ruqa, Ex. P3 FIR, Ex. P4 endorsement on Ruqa, Ex. P5 Arrest-cum-Intimation Memo, Ex. P6 Personal Search Memo, Ex. P7 Site Plan and Ex. PY Report of Chemical Examiner. 5. Statement of the appellant under Section 313 of the Code of Criminal Procedure (hereinafter to be referred to as "Cr.P.C.") was recorded in which all the incriminating circumstances appearing in the prosecution evidence were put to him, with a view to seek his explanation thereon, which were denied as incorrect and the appellant pleaded false implication stating that no recovery has been effected from him. 6. The appellant, during interrogation, suffered disclosure statement Ex. P11 regarding the purchase of heroine from one Malkit Singh son of Sukhdev Singh, resident of Sarai Amanat Khan, District Tarn Taran. Said Malkit Singh was declared proclaimed offender and, accordingly, the proceedings were commenced against him. No supplementary challan was presented regarding the co-accused having been declared as proclaimed offender. 7. We have heard learned counsel for the parties and have gone through the record of the case with their able assistance. 8. Learned counsel for the appellant has raised the following arguments:- (i) There is non-compliance of Section 42 of the NDPS Act inasmuch as ASI Raghunath Singh failed to record his reasons for his belief before setting out; (ii) There is non-compliance of Section 50 of the NDPS Act since ASI Raghunath Singh informed the appellant that he could get his search conducted by either a Gazetted officer or a Magistrate or by ASI Raghunath Singh himself; and (iii) The chain of links connecting the appellant to the crime has not been established by the prosecution. 9. 9. The evidence led by the prosecution was dealt by the Trial Court in detail. However, we deem it appropriate to closely scrutinize the same herein. 10. ASI Raghunath Singh (PW-2), the Investigating Officer, who was posted as CIA Staff, Jalandhar (Rural), and was present there on 1.2.2015, received a telephonic call from Inspector Angrej Singh, In-charge, CIA Staff, Jalandhar (Rural), that accused person in Case No. 11 dated 01.02.2015 under Section 21/61/85 of the NDPS Act, Police Station Kartarpur (Jalandhar), had suffered a disclosure statement that they had purchased heroine in the above-mentioned FIR from one Gurdev Singh son of Hira Singh, resident of Village Malluwal, PS Jhabal. It was further disclosed by the said accused person that on 01.02.2015 Gurdev Singh was to provide heroine to them in the afternoon. He further disclosed that the mobile number of said Gurdev Singh is 9855190338 and that he is wearing black coloured pants and grey coloured jacket. Inspector Angrej Singh asked ASI Raghunath Singh to lay naka immediately. ASI Raghunath Singh, after receiving the telephonic information, along with ASI Vijay Singh and other police officials left in their official vehicle bearing registration number PB-65-9225 for village Sarai Khas. On reaching there, the police party noticed that one person was standing there. ASI Raghunath Singh stepped out of the vehicle and enquired the name of that person, who disclosed his name as Gurdev Singh son of Hira Singh, the appellant in the present case. It was further stated by ASI Raghunath Singh that he checked the mobile number of the appellant herein and confirmed it to be the same as given to him by Inspector Angrej Singh. 11. It was further testified by PW-2 that he tried to join independent witness from the public but none agreed. He also testified that the appellant herein was told that he is suspected to be carrying some contraband in his possession and that his search was necessary for the said purpose. The appellant was duly apprised, as per law, that he had a legal right to get his search conducted from a Magistrate or from a Gazetted Officer or from ASI Raghunath Singh himself. The appellant did not repose confidence in the said Officer and stated that he wanted to get his search conducted from a Gazetted Officer. A non-consent memo, Ex. The appellant did not repose confidence in the said Officer and stated that he wanted to get his search conducted from a Gazetted Officer. A non-consent memo, Ex. P1, was prepared in this regard and the said memo was witnessed by ASI Vijay Singh, ASI Vipan Kumar and was signed by the appellant himself. ASI Raghunath Singh then telephonically informed DSP/D Jalandhar (Rural) Tarsem Singh and apprised him about the facts of the case and requested him to come to the spot i.e. Sarai Khas bridge. DSP Tarsem Singh reached the spot in his official vehicle bearing registration number PB-O2AR-5959 along with his Gunman and Driver C Kuljit Singh and enquired about the profile of the appellant and also informed the appellant his name, rank and place of posting. The appellant was also informed that DSP Tarsem Singh was a Gazetted Officer of the Punjab Government and was posted at District Tarn Taran (Rural). The appellant was further informed that it was suspected some contraband was in his possession. The appellant was also apprised that as per law he had a legal right to get his search conducted by a Gazetted Officer i.e. the DSP himself or by some Magistrate. The appellant reposed confidence in the DSP. On the basis of said consent, consent memo Ex. PA was prepared and the same was witnessed by ASI Vijay Singh and ASI Vipan Kumar, attested by DSP Tarsem Singh and thereafter signed by the appellant. Thereafter, search on the person of the appellant was conducted which led to recovery of one polythene bag (lifafa) from the front dab of pants of the appellant under the left pocket of jacket. The said polythene bag was found to be containing heroine in it. Two separate samples of 5 grams each of heroine were prepared and the remaining heroine i.e. 990 grams was packed in another parcel. All the three parcels were sealed with the seal bearing impression 'RS' and the DSP also affixed his seal bearing impression 'TS'. Form M-29 Ex. PX was also prepared on the spot and a seal was also affixed on the same. DSP Tarsem Singh also affixed his seal bearing impression TS on Form M-29 Ex. PX at point Ex. P2. 12. ASI Raghunath Singh further testified that the abovesaid parcels along with Form M-29 and mobile phone make Samsung were taken into possession vide recovery memo Ex. DSP Tarsem Singh also affixed his seal bearing impression TS on Form M-29 Ex. PX at point Ex. P2. 12. ASI Raghunath Singh further testified that the abovesaid parcels along with Form M-29 and mobile phone make Samsung were taken into possession vide recovery memo Ex. PB and the said memo was witnessed by ASI Vijay Singh and ASI Vipan Kumar and also attested by DSP and signed by him as well as by the accused. He further testified that seal after use was handed over to ASI Vijay Singh by him and the DSP kept his seal with himself. He further testified that he scribed Ruqa Ex. P2 and sent it through C Pankaj to Police station on the basis of which FIR Ex. P3 was registered by ASI Major Singh, whose signatures he identified. 13. The Investigating Officer further testified that he put endorsement Ex. P4 on the ruqa. He further testified that accused was arrested vide arrest-cum-intimation memo Ex. P5 and intimation regarding his arrest was given to the wife of the accused and the said memo was witnessed by ASI Vijay Singh and ASI Vipan Kumar and signed by the accused. He further testified that he conducted the personal search of the accused vide memo Ex. P6 and the said memo was witnessed by ASI Vijay Singh and ASI Vipan Kumar and signed by the accused and he also prepared rough site plan Ex. P7 on the spot with correct marginal notes. He also recorded the statement of witnesses on the spot and, on return to police station, produced the case property along with Form M-29 and the accused before SI/SHO Surinder Pal Singh, who after verifying the facts of the case from the accused and after finding the same to be correct as stated by him and after satisfying himself, affixed his seal bearing impression 'SS' on all the three parcels. He also affixed his seal bearing impression 'SS' on Form M-29 Ex. PX at point Ex. P3. ASI Raghunath Singh testified that thereafter the case property was deposited by the SHO with MHC and accused was sent to lock-up and he also recorded the statement of SHO. He also affixed his seal bearing impression 'SS' on Form M-29 Ex. PX at point Ex. P3. ASI Raghunath Singh testified that thereafter the case property was deposited by the SHO with MHC and accused was sent to lock-up and he also recorded the statement of SHO. He further testified that on the next day, he acquired the case property from MHC Satnam Singh as well as Form M-29 and accused and produced the same before the Court of JMIC, Jalandhar and moved two applications Ex. P8 and Ex. P9. The Illaqa Magistrate, finding the case property to be intact, signed the same and passed order Ex. P10. He further testified that thereafter on return to the police station, the entire case property was re-deposited by him with MHC Satnam Singh. It was further testified by him that during interrogation the accused suffered disclosure statement Ex. P11 regarding the purchase of heroin from Malkit Singh son of Sukhdev Singh, resident of Sarai Amanat Khan District Tarn Taran and the said memo was witnessed by ASI Vijay Singh and ASI Vipan Kumar and was also signed by the accused. He proved on record report of Chemical Examiner Ex. PY. He further proved on record the bulk parcel, Ex. MO1; second parcel, Ex. MO2; mobile phone, Ex. MO3, currency notes in denomination of Rs. 100 each as Ex. MO4 and Ex. MO5. The Trial Court has recorded that nothing has come on record during cross examination of PW-2 ASI Raghunath Singh which would shake his creditworthiness and, thus, his testimony can be fully relied upon. PW-1 DSP Tarsem Singh and PW-4 ASI Vijay Kumar, the recovery witness, also deposed on similar lines as that of PW-2 ASI Raghunath Singh, the Investigating Officer. 14. In order to complete the chain of link evidence, the prosecution examined PW-3 SI Surinder Pal Singh, who testified before the Court that on 01.02.2015 he was posted as SHO at Police Station, Maqsudan, Jalandhar. On that day, accused Gurdev Singh along with case property and other witnesses was produced before him by ASI Raghunath Singh. After checking case property, Form M-29 and verifying the facts of the case from accused Gurdev Singh, he deposited the case property and Form M-29 with PW-6 MHC Satnam Singh. On that day, accused Gurdev Singh along with case property and other witnesses was produced before him by ASI Raghunath Singh. After checking case property, Form M-29 and verifying the facts of the case from accused Gurdev Singh, he deposited the case property and Form M-29 with PW-6 MHC Satnam Singh. PW-5 Gurjit Singh testified that on 13.02.2015 MHC Satnam Singh had handed over to him one sample parcel weighing 5 grams heroin for depositing the same in the office of the Chemical Examiner, Kharar vide Road No. 58/21/15 and after depositing the sample parcel he had handed over receipt of the same to MHC Satnam Singh on the same date. He also testified that when the case property was in his possession he had neither tampered himself nor allowed anybody to tamper with the same. PW-6 MHC Satnam Singh testified that on 13.02.2015 he was posted as MHC and the case property along with Form M-29 and mobile phone was deposited with MHC Gurjit Singh by SHO Surinder Pal Singh in intact condition in the Malkhana of Police Station Maqsudan, Jalandhar. He further testified that on 13.02.2015 he had handed over one sample of 5 grams heroin to C Gurjit Singh to deposit the same in the office of Chemical Examiner, Kharar vide Road No. 58/21/15 and he deposited the same in the said office and handed over to him the receipt on the same day. He further testified that till the case property and sample parcels as well as Form M-29 remained in his possession the same were not tampered with. PW-7 SI Angrej Singh testified that on 01.02.2015 accused Sohan Lal was interrogated by him in case FIR No. 11 dated 01.02.2015 under Section 21 of the NDPS Act regarding purchase of heroin in the said FIR from the appellant herein and he further disclosed that on 01.02.2015 the appellant had to supply heroin to them in the afternoon near Sarai Khas Bidhipur. He also proved on record disclosure statement of accused Sohan Lal after seeing the original file of aforesaid FIR No. 11 scribed by him and witnessed by SI Jarnail Singh and ASI Ajit Singh and signed by accused Sohan Lal, photocopy whereof was proved as Ex. He also proved on record disclosure statement of accused Sohan Lal after seeing the original file of aforesaid FIR No. 11 scribed by him and witnessed by SI Jarnail Singh and ASI Ajit Singh and signed by accused Sohan Lal, photocopy whereof was proved as Ex. PW2/A. He further testified that on the same day i.e. 01.02.2015, he informed ASI Raghunath Singh about the disclosure statement suffered by accused Sohan Lal and asked him to take necessary action. 15. The Trial Court has recorded that nothing has come on record during cross-examinations of PW-3 SI Surinder Pal Singh, PW-5 C Gurjit Singh, PW-6 MHC Satnam Singh and PW-7 SI Angrej Singh which may shake their credibility and, thus, their testimonies are a reliable piece of evidence. 16. Now dealing with the arguments raised by the appellant seriatim-wise, we are of the considered view that the argument raised qua Section 42 of the NDPS Act is not tenable in law, inasmuch as, the issue has been dealt with in great detail by their Lordships of the Supreme Court in a Constitution Bench judgment in the case of Karnail Singh vs. State of Haryana, (2009) 8 Supreme Court Cases 539 where it has inter-alia been held as under:- "21. Sub-section (1) of Section 42 of the NDPS Act lays down that the empowered officer, if has a prior information given by any person, should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belief. The proviso to sub-section (1) of Section 42 lays down that if the empowered 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. 22. 22. Sub-section (2) of Section 42 as it originally stood mandated that the empowered officer who has taken down information in writing or records the grounds of his belief under the proviso to sub-section (1), should send a copy of the same to his immediate official superior forthwith. But after the amendment in the year 2001, the period within which such report has to be sent was specified to be 72 hours. Section 43 deals with the power of seizure and arrest of the suspect in a public place. 23. We may note that Abdul Rashid [ (2000) 2 SCC 513 : 2000 SCC (Cri.) 496] followed State of Punjab vs. Balbir Singh [ (1994) 3 SCC 299 : 1994 SCC (Cri.) 634]. We extract below the passage that was followed: (Balbir Singh case [ (1994) 3 SCC 299 : 1994 SCC (Cri.) 634], SCC p. 321, para 25) "25. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building, etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1), if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2), such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance with this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case." 24. If there is total non-compliance with this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case." 24. Abdul Rashid [ (2000) 2 SCC 513 : 2000 SCC (Cri.) 496] was followed in Koluttumottil Razak vs. State of Kerala [ (2000) 4 SCC 465 : 2000 SCC (Cri.) 829], which was also a case of total non-compliance with Section 42, as the Sub-Inspector of Police neither reduced the information received into writing nor informed the official superior about it. 25. A careful examination of the facts in Abdul Rashid [ (2000) 2 SCC 513 : 2000 SCC (Cri.) 496] and Sajan Abraham [ (2001) 6 SCC 692 : 2001 SCC (Cri.) 1217] shows that the decisions revolved on the facts and do not really lay down different propositions of law. In Abdul Rashid [ (2000) 2 SCC 513 : 2000 SCC (Cri.) 496], there was total non-compliance with the provision of Section 42. The police officer neither took down the information as required under Section 42(1) nor informed his immediate official superior, as required by Section 42(2). It is in that context this Court expressed the view that it was imperative that the police officer should take down the information and forthwith send a copy thereof to his immediate superior officer and the action of the police officer on the basis of the unrecorded information would become suspect though the trial may not be vitiated on that score alone. On the other hand, in Sajan Abraham [ (2001) 6 SCC 692 : 2001 SCC (Cri.) 1217], the facts were different. In that case, it was very difficult, if not impossible for the Sub-Inspector of Police to record in writing the information given by PW 3 and send a copy thereof forthwith to his official superior, as the information was given to him when he was on patrol duty while he was moving in a jeep and unless he acted on the information immediately, the accused would have escaped. The Sub-Inspector of Police therefore acted without recording the information into writing, but however, sent a copy of the FIR along with other records regarding arrest of the accused immediately to his superior officer. The Sub-Inspector of Police therefore acted without recording the information into writing, but however, sent a copy of the FIR along with other records regarding arrest of the accused immediately to his superior officer. It is in these circumstances that this Court held that the omission to record in writing the information received was not a violation of Section 42. 35. In conclusion, what is to be noticed is that Abdul Rashid [ (2000) 2 SCC 513 : 2000 SCC (Cri.) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [ (2001) 6 SCC 692 : 2001 SCC (Cri.) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 17. The learned DAG, Punjab has submitted that in the present case, though no message was given in writing by ASI Raghunath Singh to his superior immediately on receiving the information, yet it has to be seen that when Inspector Angrej Singh gave a phone call to ASI Raghunath Singh after the disclosure statement suffered by accused in Case No. 11 dated 01.02.2015 under Section 21/61/85 of the NDPS Act, Police Station Kartarpur (Jalandhar) and asked him to lay a nakabandi immediately, ASI Raghunath Singh had to rush out to the indicated spot in order to be able to nab the accused. Any delay in the matter might have resulted in the appellant getting away from the spot. Any delay in the matter might have resulted in the appellant getting away from the spot. However, the information was thereafter duly communicated to the superior and that would be acceptable given the circumstances. 18. We are in agreement with the argument raised by the learned DAG, Punjab that there is due compliance of Section 42 of the NDPS Act and, hence, find no merit in the argument raised by the learned counsel for the appellant. 19. However, a perusal of Section 43 of the NDPS Act, which deals with the power of seizure and arrest in a public place, provides as thus:- "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." 20. In our considered view in the present case, the appellant was apprehended at Sarai Khas bridge, which is a public place and, hence, fell within the ambit of phrase "public place" as laid down in the explanation to Section 43 of the NDPS Act and, in fact, Section 42 of the NDPS Act would have no applicability. In our considered view in the present case, the appellant was apprehended at Sarai Khas bridge, which is a public place and, hence, fell within the ambit of phrase "public place" as laid down in the explanation to Section 43 of the NDPS Act and, in fact, Section 42 of the NDPS Act would have no applicability. The rigors of Section 42 NDPS Act are not applicable to Section 43 of the NDPS Act as the section contains no such provision for recording reasons for belief and for taking down the information in writing before conducting the search or seizure. The Hon'ble Apex Court in the case of Karnail Singh (supra), has also held as under:- "26. The material difference between the provisions of Sections 42 and 43 of the NDPS Act is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article, etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful." 21. The learned counsel for the appellant has relied upon the following authorities to buttress his arguments:- (i) State of Punjab vs. Baldev Singh, 1999(3) R.C.R. (Criminal) 533 (ii) Rajender Singh vs. State of Haryana, 2011(3) Apex Court Judgments (SC) 63 (iii) Suresh and others vs. State of Madhya Pradesh, 2013(1) R.C.R. (Criminal) 229 (iv) Sukhdev Singh vs. State of Haryana, 2013(2) SCC 212 (v) Suresh Kumar Singh and another vs. Union of India, 2014(41) R.C.R. (Criminal) 149 (vi) Karnail Singh vs. State of Haryana, 2009(5) R.C.R. (Criminal) 515 (vii) Sukhdev Singh vs. State of Haryana, 2013(2) R.C.R. (Criminal) 232 and (vii) Rajender Singh vs. State of Haryana, 2011(3) R.C.R. (Criminal) 856. 22. 22. In the present case, none of the judgments are of any help to the appellant, inasmuch as, we are of the considered view that though there is due compliance of Section 42 of the NDPS Act, the search in the present case having been conducted in a public place, the provisions of Section 43 of the said Act would be applicable. 23. The next argument raised by the learned counsel for the appellant was with regard to non-compliance of Section 50 of the NDPS Act. It has been argued by Mr. Pheruman that at the outset the appellant was told that he could have got himself searched by a Magistrate, a Gazetted Officer or the ASI himself which was in complete violation of Section 50 of the NDPS Act, inasmuch as, the Investigating Officer cannot ask for conducting the search himself, even though the search was ultimately carried out by a Gazetted Officer with the consent of the appellant. The following authorities have been relied upon by Mr. Pheruman to substantiate his argument:- (i) Karnail Singh vs. State of Haryana, (2009) 8 Supreme Court Cases 539 (ii) State of Delhi vs. Ram Avtar, 2011(4) R.C.R. (Criminal) 191 (iii) Ashok Kumar Sharma vs. State of Rajasthan, 2013(2) R.C.R. (Criminal) 1 (iv) Narcotics Central Bureau vs. Sukh Dev Raj Sodhi, 2011 AIR (SC) 1939 (v) Myla Venkateswarlu vs. State of A.P., 2012(3) R.C.R. (Criminal) 72 (vi) Nirmal Singh Pehlwan @ Nimma vs. Inspector, Customs, Customs House, Punjab, 2011(3) R.C.R. (Criminal) 831 (vii) Vijaysinh Chandubha Jadeja vs. State of Gujarat, 2010(4) R.C.R. (Criminal) 911 (viii) State of H.P. vs. Rakesh, 2018(1) R.C.R. (Criminal) 783 and (ix) State of Rajasthan vs. Parmanand and another, 2014(2) R.C.R. (Criminal) 40. 24. In the present case, admittedly, the search was carried out by DSP Tarsem Singh, PW-1, who was a Gazetted Officer. The said search was carried out after the appellant had been duly apprised that he had the legal right to get his search conducted from a Magistrate or by a Gazetted Officer i.e. the DSP who was himself a Gazetted Officer. The appellant had reposed faith in the DSP to conduct the search. The consent memo, Ex. PA, to this effect was also prepared and, hence, there has been due compliance with the provisions of Section 50 of the NDPS Act. The appellant had reposed faith in the DSP to conduct the search. The consent memo, Ex. PA, to this effect was also prepared and, hence, there has been due compliance with the provisions of Section 50 of the NDPS Act. The mere fact that an illegal offer was given, which was not accepted by the appellant, would not amount to non compliance of Section 50 of the NDPS Act. Hence, we find no merit in this argument raised by learned counsel for the appellant. 25. We also do not find any merit in the argument raised by learned counsel for the appellant that chain of link evidence has not been established by the prosecution. The prosecution has led cogent evidence to prove its case beyond reasonable doubt. In fact, the complete chain of link evidence stands established from the testimonies of various witnesses produced by the prosecution. The defence has not been able to elicit anything beneficial out of the cross-examination of the witnesses. The evidence produced by the prosecution proves the guilt of the appellant beyond reasonable doubt. 26. In view of the above discussion, we are of the considered view that the present appeal must fail. Accordingly, the appeal stands dismissed and the judgment of conviction and order of sentence stand upheld.