JUDGMENT 1. - The above-named two accused appellants have preferred this appeal against the judgment and order dated 16.11.1999 passed by the learned Sessions Judge, Rajsamand in Sessions Case No. 174/96 by which he convicted both the accused appellants under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as Narcotic Drugs and Psychotropic Substances Act) and sentenced each of them to ten years R.l. and fine of Rs. 1 lac, in default of payment of fine, to further undergo one year R.l. 2. It arises in the following circumstances ;On the intervening night of 25/26.8.1996, PW 4 Mohan Singh, Head Constable, Police Station Amet District Rajsamand alongwith another Head Constable PW 3 Bhagwat Singh, Sohanlal and some other police officials were on patrolling duty in a Jeep RJ 30-C 0338 and the driver of the jeep was Mohanlal, when they reached near Sardargarh at about 3.15 AM of 26.8.1996 they saw a Jeep bearing No. RJH 3482 standing and its face was towards the village Amet. On being found suspicion, they all reached near the Jeep and found-two persons sitting in the Jeep and on being asked, they told their names as Shankarlal and Naval Singh. When they were asked to intimate why the Jeep is parked here, they told that diesel in the Jeep has been finished and Bherulal, Driver of the Jeep went to take diesel. On the back side of the Jeep, there was a curtain and when it was lifted by PW 3 Bhagwat Singh, he saw that there were many gunny begs in the Jeep and when it was asked to accused as to what is in the gunny bags, then they told that gunny bags contain doda post. It was found that there were 8 gunny bags and 1 Katta. Since Pw 4 Mohan Singh was not authorised to make search, the police officials brought that Jeep alongwith gunny bags and Katta and accused to the Police Station Amet and, thereafter, PW 4 Mohan Singh gave a written report Ex.P 3 on 26.8.1996 to the SHO, Amet since he was not available and he further informed PW 5 Ajaypal Singh, Dy. SP through telephone about the whole incident.As soon as telephonic message was received by Dy. SP through telephone about the whole incident.As soon as telephonic message was received by Dy. S.P., PW 5 Ajaypal Singh, he reached at the Police Station, Amet and he, in presence of two witnesses, namely, Arjun and Balu and other police officials, made search of the Jeep, the fard of which is Ex.P 4. During search, 8 gunny bags and 1 katta containing doda post were recovered and each gunny bag was weighed. The weight of gunny bag No. 1 was found to be 18 kg., No. 2 of 17 kg., No. 3 22 kg., No. 4 20 kg., No. 5 14 kg., No. 6 17 kg., No. 7 20 kg., No. 8 22kg. and in the last katta 6 kg. The total weight was found to be 156 kg. and each gunny bag was marked 1,2,3, 4, 5, 6, 7, 8 and 9 and from each a gunny bag, sample of 1 kg. was taken any the same was sealed on the spot by PW 5 Ajaypal Singh.On separate paper, specimen seals were taken by PW 5 Ajaypal Singh. Thereafter, the goods as well as samples were deposited in the Malkhana and the copy of the Malkhana Register is Ex.P 2.What has been done by PW 5 Ajaypal Singh, it is also endorsed on the back of Ex.P 3, a report which was lodged by PW 4 Mohan Singh to SHO, Amet.Thereafter, FIR Ex.P 8 was chalked out by the police. PW 8, SHO Sunderlal sent the information through Ex.P 21 to S.P., Rajsamand and through letter Ex.P 23, a request was made to SR Rajsamand to send the samples to FSL and thereafter, SP by letter Ex.P 24 through messenger Ramesh Chandra on 12.9.1996 sent nine samples to FSL at Jaipur and receipt of sample by FSL is Ex.P/25. The report of FSL is Ex.P 29. The report of FSL is Ex.P 29. The result of examination of samples as per FSL report Ex.P 29 is as follows : "On chemical examination, water extract of the sample contained in each of the packet marked 1A to 9A gave positive tests for the presence of chief constitutions of opium; hence the samples are of dried crushed capsules of opium poppy from which juice has been extracted." After usual investigation, a challan for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act was filed against the accused appellants in the Court of Session by the police on 27.11.1996.On 18.11.1998, the learned Sessions Judge framed charge under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act against the accused appellants, who pleaded not guilty and claimed trial.In support of its case, the prosecution examined as many as 8 witnesses and got exhibited several documents and, thereafter, statements of accused appellants under Section 313 Cr.P.C. were recorded. No defence evidence has been produced in this case except two documents.The learned Sessions Judge vide his judgment and order dated 16.11.1999 convicted both the accused appellants for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act and sentenced as stated above, holding inter-alia : 1. That since in this case PW 4 Mohan Singh Head Constable did not receive any information from Mukhbir, therefore, compliance of the provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act was not necessary. 2. That the compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act has been made in this case. 3. That compliance of Section 57 of the Narcotic Drugs and Psychotropic Substances Act has also been made in this case, as the information about search and seizure was sent to S.P. 4. That no irregularity in taking samples and sending them to the FSL has been committed in this case and from the FSL report, it is proved that the recovered articles were opium. 5. That from the possession of the accused appellants 156 kg. opium were recovered for which they had no licence to keep in their possession, therefore, they are liable to be convicted under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act. Aggrieved from the said judgment and order dated 16.11.1999 passed by the learned Sessions Judge, the accused appellants have preferred this appeal. 3. opium were recovered for which they had no licence to keep in their possession, therefore, they are liable to be convicted under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act. Aggrieved from the said judgment and order dated 16.11.1999 passed by the learned Sessions Judge, the accused appellants have preferred this appeal. 3. In this appeal, the learned counsel for the accused appellants has made the following submissions : 1. That in this case, it is an admitted position that the recovery was made from inside the jeep and recovery has been made by PW 5 Dy. SP Ajaypal Singh on the information received by him from PW 4 Mohan Singh, thus, compliance of the provisions of Secs. 42(1) and 42(2) of the Narcotic Drugs and Psychotropic substances Act was mandatory and in absence of this, whole trial stands vitiated. 2. That in this case, there is a lack of linking evidence on the point that when the samples were taken by Ramesh Chandra, Constable from the possession of PW 3 Bhagwat Singh, Malkhana incharge, no endorsement in the register Ex.P 2 has been made and furthermore, Ramesh Chandra has not been produced in this case, therefore, it cannot be said that samples remained intact. 3. That as per the prosecution case itself, when the sample was taken, its weight was 1 kg., but when it was disclosed in the FSL, its weight was found to be 950 kg. Thus, the difference of weight in the weighting of the sample taken out at the time of seizure and the one received in the FSL clearly establishes that the sample has been tampered with. Therefore, it has been argued that the case of the prosecution should not be held to have been proved against both the accused appellants beyond reasonable doubt and thus, they are entitled to acquittal, after giving benefit of doubt. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order of the learned Sessions Judge. 5. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case.First Point : 6. In this case, there is no dispute on the point that PW 4 Mohan Singh was on the patrolling duty in the night. 5. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case.First Point : 6. In this case, there is no dispute on the point that PW 4 Mohan Singh was on the patrolling duty in the night. He saw the Jeep in which both accused appellants were there and eight gunny bags and one katta were also there and since he was not authorised to make search and seizure of the contraband articles, therefore, he brought the jeep alongwith the accused appellants and the goods lying in it, to the police station and, thereafter, he made a report Ex.P 3 to SHO Amet. The statement of PW 4 Mohan Singh on this point is further supported by PW 3 Bhagwat Singh and PW 1 Sohanlal etc. it is also further clear from the statement of PW 4 Mohan Singh that since SHO, PW 8 Sunderlal was not available in the Police Station, therefore, he informed on telephone to PW 5 Ajaypal Singh. Dy. SP, who case there and, thereafter, whole proceedings of search and seizure were taken by PW 5 Ajaypal Singh, Dy. SP in the presence of PW 4 Mohan Singh etc. 7. There is no dispute on the point that the compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act that information which was to be reduced in writing as provided in Section 42(1) and, thereafter, it must have been sent to the superior officer as per the compliance of Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act has not been made by PW 5 Ajaypal Singh, Dy. SP. 8. The question that arises for consideration is whether in the facts and circumstances of the case, a case for compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act is made out or not. 9. The learned Sessions Judge in his judgment at Para 6 has held since PW 4 Mohan Singh and PW 5 Ajaypal Singh did not receive any information from Mukhbir, therefore, no question of compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act arises. 10. 9. The learned Sessions Judge in his judgment at Para 6 has held since PW 4 Mohan Singh and PW 5 Ajaypal Singh did not receive any information from Mukhbir, therefore, no question of compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act arises. 10. There is no dispute on the point that since PW 4 Mohan Singh was not empowered to make search and seizure, the best course for him was to inform the empowered officer and the same has been done by him. 11. in the present case, written report Ex.P 3 was lodged by PW 4 Mohan Singh, Head Constable, who was not authorised to make search and seizure, to the SHO PW 8 Sunderlal and when SHO PW 8 Sunderlal was not available in the police station, he contacted Dy. SP Ajaypal Singh, PW 5, on telephone, his superior officer, who came there and made search and seizure. It does not appear that such proceedings of search and seizure conducted by PW 5 Ajaypal Singh, Dy. SP have caused any prejudice to the 42(1) & (2) of the Narcotic Drugs and Psychotropic Substances Act was not made by PW 5 Ajaypal Singh, Dy. SP, being superior officer himself, he has committed no irregularity or illegality and the proceedings conducted by him in no manner are vitiated. Had in this case search and seizure would have been conducted by SHO PW 8 Sunderlal, the position would have been different.Thus, the first argument stands rejected.Second Point : 12. The factual position on the second point is that there is a copy of the Malkhana Register Ex.P 2 and in defence also a copy marked Ex. D 2 has been produced. PW 3 Bhagwat Singh is the witness, who was the Malkhana Incharge at the time when the search was conducted. He has stated in his statement that PW 5 Dy. SP Ajaypal Singh handed over to him eight gunny i bags and one katta alongwith nine samples and they were deposited in the Malkhana register and on 12.9.1996 samples marked 1 A to 9A were given to Ramesh Chandra, Constable for depositing in the FSL, Jaipur. He has stated in his statement that PW 5 Dy. SP Ajaypal Singh handed over to him eight gunny i bags and one katta alongwith nine samples and they were deposited in the Malkhana register and on 12.9.1996 samples marked 1 A to 9A were given to Ramesh Chandra, Constable for depositing in the FSL, Jaipur. He has admitted in his cross examination that copy of the Malkhana Register Ex.D 2 5 was not prepared by him and he has further admitted that there is a minor difference between the language written in Ex.D 2 and Ex.P 2, but the meaning of them is the same. 13. In Ex.P 2, there is an endorsement A to B which was made on 13.9.1996 by PW 3 Bhagwat Singh that on 12.9.1996, samples were given to Ramesh Chandra, who gave the receipt Ex.P 25 of depositing samples in FSL, Jaipur and entry A to B Ex.P 2 relates to the above fact. 14. The receipt is Ex.P 25, which speaks that samples were sent with special messenger Ramesh Chandra on 12.9.1996 and they have been deposited in FSL Jaipur on 13.9.1996 by Ramesh Chandra. Similar 11 endorsement is in Ex.D 2, though there is a minor difference in language, but the fact is the same that entry of taking out sample from Malkhana is not in the Malkhana Register Ex.P 2. 15. In my opinion, there is evidence that contraband articles were first handed over to PW 3 Bhagwat by PW 5 Ajaypal Singh and, thereafter, PW 3 2 Bhagwat Singh deposited the same in the Malkhana vide Ex.P 2 and there is also endorsement In Malkhana Register Ex P 2 that Ramesh Chandra gave the receipt after being deposited in FSL, but simply because there is no entry of taking out samples from the Malkhana Register, the case of the prosecution cannot be thrown out on this ground or it cannot be inferred from this fact that 2 articles seized were not kept in proper custody and proper form. Thus, the evidence led by the prosecution is satisfactory on the point that articles from the date of seizure and upto the depositing in the FSL remained intact. 16. Thus, the evidence led by the prosecution is satisfactory on the point that articles from the date of seizure and upto the depositing in the FSL remained intact. 16. It may be further stated that so far as non-production of Ramesh Chandra by the prosecution is concerned, it is very much clear from the order sheet of the Trial Court dated 17.3.1999 that the witness No. 13, as per charge sheet, is Ramesh Chandra. Thus, non production of Ramesh Chandra cannot be said to be fatal in the present case since he has died. 17. Thus, the second argument also fails and is rejected.Third Point : 18. There is no dispute on the point that from each gunny bag one kg. sample was taken out by PW 5 Ajaypal Singh, but as per FSL report Ex.P 29, it appears each of the packets marked as 1A to 9A was found to be of 950 grms. alongwith cloth cover. In my opinion, though there is a difference in weight, but this difference cannot be said to be a substantial difference and it may be marked as a minor difference and thus, from this point of view, it cannot be said that the samples have been tampered with, as there is no evidence to show that they have been tampered with in any manner.Thus, the third argument also stands rejected. 19. The learned Counsel for the accused appellant has relied on a judgment of this Court in Devi Lal and Ors. v. State of Rajasthan, (S.B. Cr. Appeal No. 595/94 decided on 14th May, 1996) . From perusing the said judgment, it appears that there is difference between the facts of the present case and the facts of that case on the point that in the present case PW 4 Mohan Singh while on patrolling duty found the Jeep in which accused appellants were sitting and 8 gunny bags and one katta were there and he brought the Jeep alongwith accused, appellants and goods lying in it to the police station and reported the matter to the higher authorities and PW 5 Ajaypal Singh, who was Dy. SP at that time, came there and made search and seizure, while in the case relied upon by the learned counsel for the accused appellant, there was a secret information received by Assistant Sub Inspector that contraband articles were in a shop, whereas position is different in the present case, as contraband articles were found in a Jeep lying on the road which was brought later on the police station where search was made. 20. Similarly, the facts of the case in Mohinder Kumar v. State of Panaji, Goa, (AIR 1995 SC 1147) on which reliance has been placed by the learned Single Judge in Devilals case (Supra), are different from the present case as in Mohinder Kumars case police officer accidentally reached the house of the accused while on patrolling duty and effected search and seizure of charas. This position is not in the present case. 21. Thus, the cases relied upon by the learned counsel for the accused appellant in Devi Lals case (Supra) and Mohinder Kumars case (supra) have no application to the facts of the present case and they are distinguishable. 22. Before parting with the present appeal, something should be said about the principle of benefit of doubt and conscience of the Court.Principle of Benefit of Doubt and Conscience of the Court 23. The Honble Supreme Court in Gurbachan Singh v. Satpal Singh, ( AIR 1990 SC 209 ) , Honble Mr. Justice Sabyasachi Mukharji (as he then was) has observed that the conscience of the Court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicious and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. (Emphasis Supplied) 24. The above principle has been further approved by the Honble Supreme Court in State of West Bengal v. Orilal Jaiswal & Anr., ( AIR 1994 SC 1418 ) . 25. Letting guilty escape is not doing justice, according to law. (Emphasis Supplied) 24. The above principle has been further approved by the Honble Supreme Court in State of West Bengal v. Orilal Jaiswal & Anr., ( AIR 1994 SC 1418 ) . 25. Keeping the above principles in mind, in the present case, it does not appeal to the conscience of this Court that accused appellants have not committed the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act and in my opinion, it is not a fit case where benefit of doubt should be given to the accused appellants merely because some alleged minor irregularity (for. the sake of argument if any) has been committed by the prosecution in conducting search and seizure of the contraband articles. Apart from this, as already stated above, no prejudice has been caused to the accused appellants in conducting the proceedings of search and seizure by PW 5 Ajaypal Singh, Sy. SP. 26. Thus, the prosecution has proved that contraband opium 156 kg. (8 gunny bags and 1 katta) were recovered from the possession of the accused appellants on 26.8.1996 for which they have no valid license to keep them in their possession and thus offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act has been proved beyond reasonable doubt against the accused appellants. Therefore, the findings of the learned Sessions Judge in this respect are liable to be confirmed.For the reasons stated above, the appeal filed by the accused appellants Shankarlal and Naval Singh fails and is dismissed, after confirming the judgment and order dated 16.11.1999 passed by the learned Sessions Judge, Rajsamand.Appeal dismissed. *******