Honble GUPTA, J. – These appeals are directed against the judgment and order of the learned Special Judge, NDPS Cases, Jodhpur dated 15.4.93 whereby he convicted Noor Khan and Babu Khan under Section 8 read with Section 22 of the NDPS Act and sentenced each of them to undergo rigorous imprisonment for 10 years and pay a fine of Rs. 1 lakh and ordered the con- fiscation of the two trucks no. RRQ 1365 and RRN 6651. Noor Khan and Babu Khan have preferred appeal against their conviction and Fakir Khan and Ishu Khan have filed appeals against the order of confiscation of the trucks. Since all these three appeals arise out of the same judgment they have been heard together and are being disposed of by this judgment. (2). The facts, in brief, are that on 11.6.87 at about 2.45 p.m. Shri Ratanlal, Dy. S.P. CID (SB), Jodhpur, received a message from `Mukhbir that a truck carrying heroine was coming from Phalodi side. On this information he rushed up to the Police Station, Udaimandir and informed Damodar Vyas, SHO. The police party consisting of Ratanlal, Dy. S.P., Damo- darlal SHO, Girdhari CI, Pratapram CI, Rakesh Puri, Narain Singh ASI, Manohar Ram HC and Mota Ram HC went to the Paota crossing, Jodhpur. At about 3.45 p.m. they noticed that Truck RRQ 1365 coming from Mahamandir side was going on the Raika Bag over bridge. The police party followed the truck and asked the driver to stop it. Noor Khan was driving the truck. There was lime (building material) in the truck. It was taken to the Police Station, Udaimandir where lime was unloaded. It was found that there were four gunny bags lying under the lime in which there were packets. All the four gunny bags were checked one by one and it was found that the bags contained packets having heroine therein. In all 187 packets were found in the four bags and the total weight of the heroine found therein was 198.75 kgs. The police after taking representative samples from each of the packet and also the control samples sealed the representative and control samples and placed the remaining packets in the same gunny bags and sealed them. The Rojnamcha entry Ex.P/19 was recorded and case registered. The police arrested Noor Khan. On his interrogation, the Police arrested Babu Khan. The police after taking representative samples from each of the packet and also the control samples sealed the representative and control samples and placed the remaining packets in the same gunny bags and sealed them. The Rojnamcha entry Ex.P/19 was recorded and case registered. The police arrested Noor Khan. On his interrogation, the Police arrested Babu Khan. On the information of Babu Khan, the police recovered two gunny bags having same type of packets from a hut on 13.6.87. The police took out representative samples and control samples from the packets found in the gunny bags and sealed them and the remaining property was also sealed. During investigation, the police interrogated one Mohamadia and latter on arrested him. After the completion of the investigation, the challan was submitted against the appellants and Mohamadiya. The prosecution examined as many as 20 witnesses. Accused in their statements denied having committed any offence. After hearing the argu- ments of the learned counsel for the accused and the learned Public Prosecutor, the learned trial Court acquitted Mohamadiya but convicted Noor Khan and Babu Khan under Section 22 read with Section 8 of the NDPS Act and sentenced them as above. The two trucks which were used in the transportation of the heroine were also ordered to be confiscated. (3). I have heard the arguments of Mr. Choudhary, learned counsel for the appellants and Mr. C.R. Jakhar, learned Public Prosecutor appearing for the State and perused the record of the case. (4). The contention of the learned counsel for the appellants Noor Khan and Babu Khan was three fold : (i) Provisions of Section 42 of the NDPS Act are mandatory in nature and since they have not been complied with, the conviction is vitiated, (ii) The prosecution has not produced link evidence to prove that the samples remained intact from the time of the recovery till they reached the FSL and therefore, the appellants are entitled to acquittal and (iii) The alleged recovery of two bags at the instance of Babu Khan was from an open place accessible to all and sundry and, therefore, no inference against Babu Khan could be drawn. (5). On the other hand, Mr. Jakhar contended that the prosecution has led ample evidence to prove that the representative samples remained intact from the time they were sealed at the time of recovery till they rea- ched the FSL. (5). On the other hand, Mr. Jakhar contended that the prosecution has led ample evidence to prove that the representative samples remained intact from the time they were sealed at the time of recovery till they rea- ched the FSL. It was further submitted that compliance of Section 42 (1) of the NDPS Act is fully established on record and that provisions of sub rule (2) are not of mandatory nature. Mr. Jakhar submitted that since higher officers had already reached the police station at the time of recovery, there was no need of sending a copy of the information on the higher officers. The further contention of Mr. Jakhar was that since the gunny bags were recovered from a hidden place and it was only the accused Babu Khan who had the knowledge of their presence at that place, he has been rightly convicted. (6). I have carefully considered the rival contentions of the learned counsel for the parties. (7). It is fully established on record that Damodarlal (PW 16) had recorded the information received by him from Ratanlal Dy S.P. in the Rojnamcha Ex.P/18. This entry is proved by the statement of Damodarlal SHO. which also bears the signatures of Ratanlal, Dy. S.P. When the infor- mation has been recorded in the Rojnamcha, it cannot be said that there was non-compliance of Sub Section (1) of Section 42 of the Act. It has been held by their Lordships in the case of State of Punjab V. Balbir Singh (1) that if there is total non-compliance of the provisions of Section 42 (2) the same affects the prosecution case and to that extent only it is mandatory. It is not disputed by the learned Public Prosecutor that copy of the written information recorded was not sent by Damodarlal to his superior officers. However, Ratanlal, Dy. S.P. who is a senior officer of the Police Department was himself present. As a matter of fact he had first received the information from the `Mukhbir. Therefore, non sending of a copy to senior officers can- not be held to be fatal to the prosecution. It is also relevant to state that immediately after the truck was taken to the police station, the ASP who was the immediate official superior was given information on telephone about the seizure of the truck. Therefore, non sending of a copy to senior officers can- not be held to be fatal to the prosecution. It is also relevant to state that immediately after the truck was taken to the police station, the ASP who was the immediate official superior was given information on telephone about the seizure of the truck. It is, thus, manifest that senior officers were informed about the information received as also the search and seizure. PW 16 Damodar Vyas has deposed that the S.P. had reached at the police station and he was present at the time the recovery was being made. According to him, he had requested the S.P. on telephone to come to the police station. Thus, it cannot be said that there was total non-compliance of sub-section (2) of Section 42 of the Act. The purpose of sub Section (2) is that superior officers must by kept information of the happenings so that there is proper supervision over the police station staff. In this case, when the senior officers had reached the police station and had occasion to see the report Ex.P/18, it cannot be accepted that the non-sending of copy of the report Ex.P/18 to the superior officers vitiated the trial. In the case of `Chhoga Ram V. State of Rajasthan (2) relied on by learned counsel for the appellants, there was total non-compliance of Section 42 inasmuch as even the secret information received from the `Mukhbir was also not recorded. In these circumstances, it was held that the mandatory provisions had not been followed and conviction was set aside. As regards the case of `Bhanwar Singh vs. State of Rajasthan (3) relied on by Mr. Choudhary, suffice it to say that Sub Section (2) of Section 42 has been held to be mandatory by the Apex Court only in this respect that superior officers must be informed. Apart from this, in that case various points including that of non-compliance of Section 57 were raised. In the instant case, as already stated, the superior officers had reached the police station after the information Ex.P/18 was recorded and, therefore, this contention cannot be accepted that because of non sending of the copy of the information to the superior officers, the conviction of Noor Khan is not sustainable. (8). In the instant case, as already stated, the superior officers had reached the police station after the information Ex.P/18 was recorded and, therefore, this contention cannot be accepted that because of non sending of the copy of the information to the superior officers, the conviction of Noor Khan is not sustainable. (8). The evidence regarding sealing of the samples and keeping them in sealed condition is contained in the statements of the witnesses who were present at the time of recovery and also in the statements of PW I Mota Ram Malkhana Incharge and PW 7 Hari Singh. PW 16 Damodarlal deposed that he had taken out two samples from each packet; one as representative sample and other as control sample and sealed them then and there. This fact is deposed by all the police officers who were present at the time of recovery including PW 20 Ratanlal. Hari Ram (PW 13) who is motbir of the seizure memo Ex.p/5 has also deposed that the police had taken out sam- ples from the packets and had sealed them in his presence. The statement of Hari Ram cannot be seen with suspicion simply on the ground that he was previously known to Damodarlal, SHO and was sitting in the police station from before. Hari Ram has been cross-examined at length and there is nothing to doubt his testimony. By his evidence, it is amply proved that the representative samples and controlled samples taken out from the packets recovered from the gunny bags seized from the truck were sealed then and there and the remaining packets were put in the gunny bags were also sealed. Mota Ram PW 1 has deposed that all the sealed packets were handed over to him as he was the Malkhana Incharge. He has proved the Malkhana entries Ex.P/1. (9). On this fact appearing in the statement of Mota Ram that when gunny bag marked `A was opened in the Court it was found that the 39 packets lying therein were not sealed and since they were not sealed, some material could be placed therein and could be taken out therefrom, it has been contended that there is possibility that the sealed packets were tampered with. In my opine on, there is not much force in this contention. In my opine on, there is not much force in this contention. There is clear and cogentevi ence on the point that the gunny bag, in which the packets were lying was in sealed condition. There is no evidence that the seal of the gunny bag was tampered with or that when the gunny bag was produced before the Court it was not in sealed condition. Therefore, it cannot be presumed that the packets lying therein could be tampered with. Moreover, there is nothing on record to believe that the representative samples which remained in the custody of Mota Ram upto 24.6.87 were tampered with. Rather there is categorical statement of Hari Singh HC (PW 7) who has deposed that he was handed over 276 sealed packets duly sealed. He has further deposed to have taken the samples to the FSL. Mohan Singh (PW 17) who was posted as Head Constable in the office of S.P. Jodhpur has deposed that Hari Singh had bro- ught 276 sealed packets and that after seeing the packets he had prepared the letter Ex.P/10 and that for the time the packets remained with him, they remained intact. It is relevant to state here that in the report of the FSL Ex.P/15 there is certificate to this effect that the packets were properly sealed and that the seals tallied with the seal impressions forwarded. There is absolutely no reason to doubt the testimony of Mota Ram, Hari Singh & Muken Singh. (10). The cases relied on by the learned counsel for the appellants do not help the appellants In the case of `Chatra Ram vs. State (4) the facts were that there was no evidence that the specimen seal impression was sent to the FSL. In these circumstances, it was held that the link evidence was missing. In the case of Gopal vs. State (5) it was noticed that there was difference in the weight of the opium recorded in the FSL report and the Seizure Memo and that there were material contradictions in the statements of the prosecution witnesses even on the point that whether the seal used to seal the samples was in Hindi or English. In that case, the forwarding letter sent to the FSL alongwith the samples was also not produced. In these circumstances, it was observed that the possibility that the samples were tampered with was not ruled out. In that case, the forwarding letter sent to the FSL alongwith the samples was also not produced. In these circumstances, it was observed that the possibility that the samples were tampered with was not ruled out. In the case of `Biram vs. State (6) the main stress was that there was non-compliance of Section 50 of the NDPS Act. Besides that the FSL had returned the packets without analysis and they remained out from Malkhana for 4 days. There was no evidence on the point as to where these samples were kept during those days and whether the seals remained intact. In these circumstances, the benefit of doubt was given to the accused. The facts of the case of `Gazi Khan vs. Union of India (7) were entirely different. There were various contentions raised on behalf of the accused including one that the Malkhana Incharge was not examined and entries of the Malkhana register were not produced. In the instant case, as already stated, it has been amply proved on the record that the representative samples were sealed at the time of recovery and they remained in the safe custody of Mota Ram (PW 1) till the time he handed them over to Hari Singh and Hari Singh kept them till he delivered them in the office of the FSL. There is, thus, no merit in this contention of the learned counsel for appellants that the link evidence of keeping the samples in sealed condition is missing in this case. (11). The third contention of Mr. Choudhary is regarding recovery from appellant Babu Khan. The prosecution case is that the name of Babu Khan appeared when Noor Khan was interrogated. Nand Kishore PW 18 has deposed that he had arrested Babu Khan on 13.6.87 vide Arrest Memo Ex.P/9 and Babu Khan gave him the information Ex.P/22 and on this information he took Babu Khan at the hut pointed out in his statement and from there Babu Khan took out two gunny bags from a pit. He has deposed that on the gate of the hut there was cover of clay and that Babu Khan had taken out the bags after digging 3 feet deep pit and from both the bags, packets numbering 89 were recovered. He has further deposed that he took out representative samples and control samples from these packets and sealed them on the spot. He has further deposed that he took out representative samples and control samples from these packets and sealed them on the spot. He has also deposed that he sealed the remaining samples in the gunny bags. PW 19 Rakesh Puri, PW 16 Damodar Vyas, PW 14 Narain Singh and PW 7 Hari Singh have also corroborated the testimony of Nand Kishore Co. The fact that the material was recovered from hidden place in a hut which was having gate, it can safely be inferred that it was only Babu Khan who had the knowledge of the existence of the articles there. It cannot be accepted that the place was accessible to all and sundry. It has rightly been held by the learned trial Court that the articles recovered were in the exclusive possession of appellant Babu Khan. The samples taken out from the two gunny bags recovered at the instance of appellant Babu Khan were also sent to the FSL and the report is that they gave positive tests for the presence of Diacetyl morphine. Same report is with respect to the packets seized from the possession of appellant Noor Khan. (12). By the evidence produced on record by the prosecution, it was thus amply proved that the articles recovered from the possession of both the appellants Noor Khan and Babu Khan gave positive test for the presence of Diacetyl morphine. They have, thus, been rightly convicted under Section 8/22 of the NDPS Act and their conviction is maintained. (13). The learned trial Judge has awarded minimum sentence prescribed for the offence. There are no special circumstances to consider the reduction of the sentence. There is thus, no merit in Appeal No. 148/93. (14). Now, I take up Appeal No. 151/93 preferred by Ishu Khan. It was contended by Mr. Choudhary that Ishu Khan was not afforded an opportu- nity to prove that he had no knowledge about the transportation of contraband article in the truck and, therefore, the case should be remanded to the Special Judge for giving him an opportunity. I find no force in this contention. Ishu Khan was examined by the prosecution as PW 11. In his statement he has deposed that he had purchased Truck RRN 6651 from one Moose Khan and that he had sold this truck to Noor Khan and Noor Khan had already made part payment of the truck. I find no force in this contention. Ishu Khan was examined by the prosecution as PW 11. In his statement he has deposed that he had purchased Truck RRN 6651 from one Moose Khan and that he had sold this truck to Noor Khan and Noor Khan had already made part payment of the truck. It is thus, clear that the case of Ishu Khan was that he had already sold the Truck to Noor Khan accused. As Ishu Khan had sold the truck, he is not the owner of the truck and as such he being not the owner of the truck is not the person adversely affected by the order of confiscation. His appeal is misconceived which is liable to be dismissed. (15). Arguing Appeal No. 150/93 Mr. Choudhary contended that the truck belonged to Fakir Khan and that through on the basis of the documents of ownership produced in the case the truck was handed over to him on Superdginama yet before ordering its confiscation he was not given an opportunity of putting forward his case. The Court may order the confiscation of the vehicle under Section 60 (3) of the NDPS Act. Section 60 (3) of the Act provides that the conveyance used in carrying any narcotic drug or psychotropic substance shall be liable to be confiscated unless the conveyance was seized without the knowledge of the owner or his connivance. It is, thus, clear that the owner of the conveyance is entitled to be heard before the order of confiscation. In this case, Fakir Khan was not made an accused. Fakir Khan, therefore, had no opportunity to prove that the truck was used in carrying the narcotic substance without his knowledge or connivance. It has, therefore, become necessary that this appeal is allowed and his matter is sent back to the trial court for deciding about the confiscation of the truck after giving him an opportunity in terms of Sub Section (3) of Section 60 of the NDPS Act. The result, therefore, is that there is no substance in Appeal No.148/93 filed by Noor Khan and Babu Khan which is hereby dismissed. There is also no merit in the Appeal No.150/93 filed by Ishu Khan, which is hereby dismissed. Appeal No.150/93 preferred by Fakir Khan is allowed and the order of confiscation of Truck No. RRQ 1865 is set aside. There is also no merit in the Appeal No.150/93 filed by Ishu Khan, which is hereby dismissed. Appeal No.150/93 preferred by Fakir Khan is allowed and the order of confiscation of Truck No. RRQ 1865 is set aside. The learned Special Judge is directed to decide the matter of confiscation of this truck afresh after affordining an opportunity to Fakir Khan and the prosecution.