ORDER [ENTITY], J.
1. The question for the decision of which, this appeal has been referred to Division Bench, is:-
"Whether the provision of [SECTION] of the [ACT] apply to search of persons in public places as defined in explanation given in [SECTION] of the [ACT] ?"
(2). The few facts in the context of which the above question arises in this case are that, while on 23rd Jan., 1993 a police party headed by [ENTITY], Circle Inspector, Police Station Sadul Shahar was on patrolling, a information was received from an informer to the effect that one person was carrying poppy husk in gunny bag and he was proceeding towards the side of water works. On receiving this information, the police party went towards the water works and found a person there. On inquiry he disclosed his name as [ENTITY]. He was carrying a white plastic bag in his hand. On conducting the search of the bag, poppy husk was recovered. On weiging it was found to be 6 k.g. A sample of 50 gram was taken from the poppy husk recovered. The accused appellant was arrested. After usual investigation police laid charge sheet against the appellant for offence u/[SECTION] of the [ACT]. The learned Special Judge [ACT] found the charges proved and convicted the appellant for offence u/[SECTION] of the [ACT] and sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1 lac, in default of payment to further undergo one years rigorous imprisonment.
(3). Being aggrieved of the judgment of conviction and order of sentence the appellant has preferred instant appeal, it was contended before the learned Single Judge ([ENTITY], J.) that as required by [SECTION], it was obligatory on the police officer to have send copy of the information received from the informer to his superior officers. The non-compliance of the mandatory provision has vitiated the trial. Per contra it was submitted by the learned Public Prosecutor that as the search was conducted at a public place and not inside any building conveying or enclosed place and therefore, the provisions of [SECTION] were not attracted.
(4). The learned counsel for the appellant placed reliance on a decision of this Court in [ENTITY] vs. Stale of Rajasthan reported in (1) wherein [ENTITY] J., as his Lordship. then was, held that the provisions of [SECTION] are attracted to the search of a person conducted in public place. The case was decided relying on a decision of the Apex Court in Stale of Punjab vs. [ENTITY] reported in (2). The said case i.e. [ENTITY]'s case has been followed by [ENTITY], J. in [PRECEDENT], and by [ENTITY], J. in [ENTITY] vs. State of Rajasthan reported in (4) and in [PRECEDENT] (5). On the other hand the learned Public Prosecutor relied on an another decision of [ENTITY], J. in [ENTITY] vs. State of Rajasthan reported in (G) wherein a contrary view has been taken to the effect that in case of search in public place the provisions of [SECTION] are not attracted and, therefore, the questions of non-compliance of [SECTION] of the [ACT] does not arise. This case was also decided relying on the decision of the Apex Courl in [ENTITY]'s case (supra). The learned Public Prosecutor also relied on a decision of this Court in [PRECEDENT] wherein his Lordship [ENTITY], J. as he then was held that in case of recovery of contraband from the public place the provisions of [SECTION] of the Act are not attracted. Learned Single Judge ([ENTITY], J.) found that there is conflict of opinion among the Single Benches of this Court as to the applicability of the provisions contained in [SECTION] of the [ACT] to the searches conducted at public place i.e. places other than a building conveyance or enclosed placed not covered by the explanation given in [SECTION] of the [ACT]. The learned Single Judge after examining the entire Scheme of the [ACT] with reference to search, seizure and arrest and on consideration of the case law on the subject expressed inability to agree with ratio in [ENTITY]'s case and followed by the other Benches. In the opinion of [ENTITY], J. the provisions of [SECTION] of the [ACT] are attracted only when the authorised officers proposed to enter into a building, conveyance or enclosed place, which is not being a public place and as such the provisions of [SECTION] of the Act in case of public place is not attracted. [ENTITY], J. has given a strong reasoning in support of his view. At the first place, in the opinion of the [ENTITY], J. the decision of the Supreme Court in [ENTITY]'s case which is the basis of decision in [ENTITY]'s case cannot be cited as an authority for the proposition that provisions of [SECTION] of the [ACT] would be attracted to searches conducted" in public places. According to [ENTITY], J. the legislature has made distinction between the search of person and search of the place. While [SECTION] provide for search of a person, [SECTION] provides for search in public place and [SECTION] in private place. Search of person involves some curtailment of the personal liberty and dignity of the person who is to be searched and therefore, the provisions gives a greater protection to ensure that no person is searched unless there is sufficient ground to justify the search. In order a innocent person is not subjected to humiliation legislature has provided safe guards u/[SECTION] of the [ACT]. So far as search of place is concerned, it is dealt with by the [SECTION] and [SECTION] of the [ACT]. The necessity of protection of properly right of a person may arise in respect of those properties only which are in exclusive possession of the person who has the right to exclude others from entering into the properly which is in his possession. Therefore, the search u/[SECTION] with respect to the private places also provides protection to a certain degree, however in case of public place no person can have any right to prevent the entry of any person in such places which is not in exclusive possession of the person. In respect of such public places, the question of protecting the property right of any citizen does not arise. Therefore, in case of search in public place under [SECTION] of the [ACT] has not been provided safe-guards as provided in case of search u/[SECTION] i.e. of person, u/[SECTION] i.e. of private property.
(5). Before we avert to the controversy, it would be profitable to acquafit with the relevant provisions of the [ACT]. The [ACT] is enacted with a view to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and Psychotrophic Substance to provide forfeiture of properly derived from, or used in, illicited trafic in narcotic drugs and psychotrophic substance, and matters connected therewith. The provisions of [SECTION] deals with procedure regarding the entry, arrest, search and seizure. We arc mainly concerned with [SECTION] which empowers certain officers to enter, search, seizure and arrest without warrant or authorisation. Such officer should be superior in rank to peon, Sepoy or Constable of the department of the Central Excise, Narcotic, Customs, Revenue, Intelligence or any other department of the Central Government or an officer of similar Superior Hank of Revenue, Drugs Control, Excise, Police or any other department of the State Government as is empowered in this behalf by the general or special order of the State Government. Such officer if he has reason to believe from personal knowledge or information taken down in writing that any offence punishable under [SECTION] has been committed, he may enter into a search in the manner prescribed thereunder, between sun rise and sun set. [SECTION] empowers such officers as mentioned in [SECTION] to seize in public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under [SECTION] has been committed. [SECTION] provides condition under which search of the person has to be conducted. It would be convenient to extract [SECTION] and [SECTION] of the Act as follows:-
"42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) 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 or of the Border Security Force 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 personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under [SECTION] has been committed or any document or other article which may furnish evidence of the commission of such offence 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 [SECTION] relating to such drug or substance; 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 [SECTION] relating to such drug or substance:
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 o 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 [SECTION] or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to him immediate official superior.
[SECTION]. Power of seizure and arrest in public places.-Any officer of any of the departments mentioned in [SECTION] may-
(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under [SECTION] 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 [SECTION] relating to such drug or substance;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under [SECTION], and, if such person has any narcotic drug or psychotropic substance in his pos-
session 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".
(6), A bare rending of two provisions clearly shows that while provisions of [SECTION] of the [ACT] are attracted only when the authorised officer proposed to enter into any building, conveyance or enclosed place or in other words to say in a private place whereas [SECTION] deals with the search in public places. The search of person is regulated by [SECTION] of the [ACT]. Thus it is apparent that there is no scope of any confusion. In fact [ENTITY]'s case (supra) the Hon'ble Supreme Court has made a clarification in para 10 of the judgment. Apex Court has clearly observed that [SECTION] while deals with the power of seizure and arrest in public place is slightly different from [SECTION] in certain respects. Para 10 of the judgment in [ENTITY]'s rase is extracted as follows:-
"We may mention here that [SECTION] which deals with the power of seizure and arrest in public places is slightly different from [SECTION] in certain respects. Under this provision any empowered officer n/[SECTION] has the power to seize, detain, search or arrest in public place or in transit if he has reason to believe that an offence punishable under [SECTION] relating to such drug or substance has been committed and seize any document or other article which may furnish evidence of the commission of such offence and can seize any animal or conveyance or article liable to confiscation and can detain and search any person similarly. The empowered officer while acting under [SECTION] need not record any reasons of his belief. This section also does not mention anything about the empowered officer having prior information given by any person or about recording the same, as compared to [SECTION]."
(7). The decision of the Apex Court clearly shows that in the case of search and seizure in public places, the provisions of [SECTION] of the [ACT], are attracted. The observation made by the Apex Court further shows that [SECTION] of The [ACT] does not require empowered officer while acting under [SECTION] of the Act to record any reason of his belief nor this section mention anything about the empowered officer having prior information given by any person or about the recording of the same as compared to [SECTION]. Thus, without any hesitation, it can be safely concluded that in case of search and seizure in public places the provisions of [SECTION] of the Act are applicable and the provisions of [SECTION] of the Act are not applicable. [SECTION] of the [ACT] do not require the authorised officer exercising the power u/[SECTION] to record the reasons of his belief or the information received by him or any person about the commission of any offence under [SECTION] of the [ACT]. In fact [ENTITY], J. who decided the [ENTITY]'s case in a later decision in [ENTITY] (supra) held that if the search is conducted at a public place the provisions of [SECTION] of the Act are not applicable and the case has to be governed by the provisions contained in [SECTION] of the Act. Para 5 of the judgment in [ENTITY]'s case is extracted as follows:-
"5. [SECTION] of the Act provides that any empowered officer, if he has reasons to believe from the personal knowledge or from the information given to him by any person and taken down in writing that any narcotic drug or psychotropic substance, in respect of which an offence punishable under [SECTION] has been commuted or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, convey-
ance or enclosed place, may, between Sun-rise and Sun-set, may enter into and search any such building, conveyance or place. [SECTION] provides that where an officer takes down any information in writing under sub-section (t) or records his grounds of belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate officer superior, PW 1 [ENTITY], in this case, neither recorded the secret information received by him nor he sent the copy of the same to his immediate officer superior. As the search, in the present case, was not made from building, conveyance but was made from a public place, therefore, the provisions of [SECTION] of the Act are not applicable and the present case is covered by the provisions of [SECTION] of the Act. [SECTION] of the Act does not envisage any of such conditions. As the provisions of [SECTION] of the Act are not applicable in the present case, therefore, the contention, raised by the learned counsel for the appellant, is devoid of any force,"
(8). In [ENTITY]'s case, reliance was placed in addition to [ENTITY]'s case, decision of the Apex Court in [ENTITY] vs. State reported in (8). In the said case since the, search, seizure and arrest was made inside a private building, the question whether provision of [SECTION] of the [ACT] is attracted to search conducted in public place did not arise for consideration. Thus, ratio in [ENTITY]'s case has not been correctly applied in [ENTITY]'s case. The other decision need not be discussed as in those cases simply [ENTITY]'s case has been followed. Thus, incur opinion, law laid down in [ENTITY]'s case and fallowed in [ENTITY], [ENTITY] and other decisions does not hold good law(sic) subsequent decision of the [ENTITY], J., in [ENTITY]'s case correctly lay down the law with respect to search, seizure and arrest in public place. We are in complete agreement with the view expressed by [ENTITY] J. Thus we conclude that in our humble opinion the provisions of [SECTION] of the [ACT] are attracted only when the authorised officer proposed to enter into any building and conveyance or enclosed place, which is to being a public place. In other words the provisions of [SECTION] of the [ACT] do.not apply to the search of public place nor they apply to search of persons as search of the public place is regulated by [SECTION] and the search of the persons is regulated in [SECTION]. We are fortified in our view by a recent decision of the Apex Court in [PRECEDENT] wherein the Court held that the provisions of [SECTION] are not attracted regarding search made in public place. In the brief judgment the court observed, thus:-
"Thus the accused was found sitting on a public road and therefore, neither the procedure under [SECTION] of the Act was required to be followed nor was the site plan required to be prepared."
(9). In view of the aforesaid, we answer the reference as follows:-
"that the provisions of [SECTION] of the [ACT] does not apply to the search of persons in public places as defined in explanation given in [SECTION] of the [ACT]."
(10). Having answered the question referred, we direct that the appeal will now be placed before learned Single Judge taking up such matters for decision on merits.