Judgment Adarsh Kumar Goel, J. 1. This appeal has been preferred by appellants Surjan Singh and Sukha Singh against their conviction and sentence, for having been found in possession of 102 Kgs. of opium. 2. The case of prosecution is that on 17.11.1998, Pritpal Singh, PW-6 was posted as ASI in Police Post Kacha Pacca of Police Station Bhikhiwind. He along with police party held a picketing in Manihala Jai Singh. During picketing, he received a secret information at 6 A.M. that accused Surjan Singh was coming in a tractor trolley with opium. In the meantime, Surjan Singh was seen sitting on the tractor being driven by Sukha Singh. Pardhan Singh (since deceased) was sitting on the mudguard of the tractor. The tractor was stopped on which, Pardhan Singh and Sukha Singh ran away but Surjan Singh was apprehended. Six tins containing opium were recovered from the trolley, the weight of which was found to 102 Kgs. Hundred gms. of opium was taken out as sample from every tin. The samples and the tins were separately sealed with the seal bearing letters `PPS. The samples and the tins were taken into possession vide recovery memo exhibit PB which was attested by Davinder Singh and Amarjit Singh. The tractor and trolley were also taken into possession. Ruqa Exhibit PC was sent to the Police Station on the basis of which F.I.R. Exhibit PC/1 was recorded. Site Plan Exhibit PD was prepared. The accused Surjan Singh was apprised of grounds of arrest and was arrested. The samples and the case property were produced before Station House Officer. Inspector Darshan Singh along with the accused, Surjan Singh and the Station House Officer also affixed his seal bearing letters `DS on the samples and the case property. The Inspector deposited the samples and the case property which the MHC. The samples were sent for examination and as per report Exhibit PE of the Chemical Examiner, the same were found to be of opium. After investigation, all the three accused, Surjan Singh, Sukha Singh and Pardhan Singh were sent up for trial and were charged under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) for having been found in possession of 102 Kgs of opium without any permit or licence. 3. In order to prove its case, prosecution examined six witnesses. 3. In order to prove its case, prosecution examined six witnesses. PW-1 Hukam Chand, Judicial Magistrate Ist Class stated that accused Surjan Singh and case property were produced before him on 17.11.1988. PW-2 Darshan Singh, DSP, who at the relevant time was posted as S.H.O. in Police Station Bhikhiwind, supported the version of ASI Pritpal Singh PW-6 to the effect that tins and the samples were produced before him by ASI Pritpal Singh which were duly sealed and the seals were intact, and on being satisfied about the recovery, he affixed his seal "DS" on the tins and the samples, and deposited the case property with the MHC. PW-3 Jagmohan Singh ASI and PW-4 Kundan Singh constable are formal witnesses. PW-5 Devinder Singh, ASI, who was posted as Head Constable at the relevant time in the Police Post Kacha Pacca and was accompanying PW-6 Pritpal Singh, has also supported the prosecution case. 4. During the course of trial, Pardhan Singh accused died. Accused Surjan Singh and Sukah Singh were examined under section 313 Cr.P.C. They denied the allegations of the prosecution. Accused Surjan Singh stated that his tractor had been taken away by the terrorists and he had gone to the police station in that connection when he was illegally detained. The accused led defence evidence. DW-1 Constable Sheetal Singh, Clerk in the office of Senior Superintendent of Police, Amritsar stated that original documents received in the office of the Senior Superintendent of Police from the office of Inspector General Punjab were destroyed after five years. DW-2 Paramjit Singh, Record Keeper of the office of Sub Divisional Officer (Civil), Patti stated that record pertaining to the year 1998 was not available. DW-3 Davinder Singh constable deposed that complaint of the case was not received in their office. DW-4 Charan Singh deposed that Sajjan Singh along with others had come to him as he was Sarpanch of the village at that time. Sajjan Singh had told him that his tractor trolley had been taken away by the terrorists. To the same effect is the statement of DW-5 Balkar Singh. DW-6 Manjit Singh, Asstt. MHC stated that register containing telegram dated 11.11.1998 had since been destroyed. 5. The trial court held that case of the prosecution was proved against Surjan Singh as well as Sukha Singh accused. To the same effect is the statement of DW-5 Balkar Singh. DW-6 Manjit Singh, Asstt. MHC stated that register containing telegram dated 11.11.1998 had since been destroyed. 5. The trial court held that case of the prosecution was proved against Surjan Singh as well as Sukha Singh accused. Trial Court convicted and sentenced them, by judgment dated 9.11.1998, to undergo ten years rigorous imprisonment and to pay a fine of Rs. One lac each and in default of payment of fine, to undergo further rigorous imprisonment for six months. 6. Counsel for the appellants contended that section 42 of the Act had not been complied with as the secret information had not been recorded in writing, which fact has been admitted by PW-6 Pritpal Singh. It is further contended that the case property had been tampered with as was clear from the evidence of PW-2 Darshan Singh, S.H.O. of the Police Station. In cross-examination, PW-2 Darshan Singh has stated at the time of recording of his evidence in the year 1991 (recovery was made in the year 1998), that a corner of Exhibit P-1, one of six tins was broken and there was cavity in it and the said cavity admitted entry of hand and there was leakage; tin Exhibit P-2 was open from one side and admitted entry of hand and the cover of tin Exhibit P-3 was loose. 7. It is further submitted that non-examination of independent witnesses had prejudiced the case of the accused; the tractor had been stolen and this defence of the accused should be accepted; Sukha Singh, who was not apprehended at the spot, could not be connected with the recovery. Counsel for the appellants relied on a judgment of the Supreme Court in Roy V.D. v. State of Kerala, 2000(4) Recent Criminal Reports 762, where Supreme Court quashed proceedings under the NDPS Act on the ground that recovery was by an unauthorized person. Reliance is also placed on a Division Bench judgment of this Court in State of Punjab v. Gurjit Singh, 2000(4) Recent Criminal Reports 420, in support of contention that failure to note down information in writing and failure to send the same to the superiors as required under section 42 of the Act vitiated the conviction. Reliance is also placed on a Division Bench judgment of this Court in State of Punjab v. Gurjit Singh, 2000(4) Recent Criminal Reports 420, in support of contention that failure to note down information in writing and failure to send the same to the superiors as required under section 42 of the Act vitiated the conviction. Reliance is also placed on Dev Raj v. State of Punjab, 2000(4) Recent Criminal Reports 418 wherein it was held that the officer, who conducted the search himself, could not investigate the case. Next judgment relied on is Emma Charlotte Eve v. Narcotic Control Bureau, 2000(4) Recent Criminal Reports 386 wherein it was held that merely by showing that a person received a parcel from a foreign country, which contained contraband, the addressee could not be fastened with knowledge of the contraband. It was held that mere physical possession of accused in proximity of the object was not equal to possession. Reliance is also placed on Harbans Singh v. State of Punjab, 2000(4) Recent Criminal Reports 288, wherein it was held that unless the accused were shown to be transporting or being in possession of the contraband, they could not be held guilty. The next judgment relied on by the counsel for the appellants is Gurbux Singh v. State of Haryana, 2001(1) Recent Criminal Reports 702, in support of his contention that if in evidence regarding seal used, there was discrepancy, the accused would be entitled to acquittal. 8. Counsel for the State supported the conviction of the appellants and relied on the statement of PW-2 Darshan Singh to the effect that the seals were intact. Reliance is also placed on evidence of PW-1 Hukam Chand Judicial Magistrate Ist Class, who stated that the accused and case property were produced before him. Counsel for the State further submitted that Sukha Singh accused had been duly identified in the Court. 9. I have considered rival submissions and perused the record of the case and the decisions cited. 10. The first question is, whether section 50 of the Act will apply ? Since this is not a case of recovery having been effected from a personal search, section 50 will not apply as held by the Supreme Court in State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 : 1999(6) Supreme Court Cases 172. 11. 10. The first question is, whether section 50 of the Act will apply ? Since this is not a case of recovery having been effected from a personal search, section 50 will not apply as held by the Supreme Court in State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 : 1999(6) Supreme Court Cases 172. 11. Next question is, whether the section 42 of the Act will apply ? Section 42 will not apply as this was a case of recovery from an open place, as per explanation to section 43 of the Act, as held in Ganga Bahadur Thapa v. State of Goa, 2000(10) Supreme Court Cases 312. Moreover, PW-6 Pritpal Singh stated that immediately on receipt of information, the vehicle in question came on the spot and recovery was made from the tractor trolley, and after making recovery, ruqa Exhibit PC was duly sent to the police station. In Sajjan Ibrahim v. State of Kerala, 2001(3) RCR(Crl.) 808 : 2001(8) Supreme Court Cases 692, the Supreme Court held that the Court should not interpret the provisions of the NDPS Act so literally as to render their compliance impossible. If following of mandate results in delay in trapping the accused, which may lead the accused to escape, the prosecution case should not be thrown out. It was also held that sending of a copy of the F.I.R. and other record by the officer making arrest, was a substantial compliance and mere absence of report could not be said to have prejudiced the accused. 12. I am also unable to accept the contention of the counsel for the appellants that case property was tampered with. Recovery was made in the year 1988. On account of long delay in keeping the case property, there may be deterioration. The fact remains that three tins containing 51 Kgs of opium were intact while three tins were found to be leaking. 13. Recovery was made in the year 1988. On account of long delay in keeping the case property, there may be deterioration. The fact remains that three tins containing 51 Kgs of opium were intact while three tins were found to be leaking. 13. Absence of independent witnesses in the circumstances of the case, will not be fatal to the case of the prosecution, especially when the recovery was effected in the early hours of the day i.e. between 6 AM to 6.45 AM (in ruqa Exhibit PC, time mentioned for sending the same is 6.45 AM) and the statement of PW-6 Pritpal Singh has been corroborated by PW-5 Devinder Singh, ASI and PW-2 Darshan Singh, S.H.O. before whom the recovered articles and accused Surjan Singh were produced immediately after recovery. 14. Further question is, whether Sukha Singh who was not apprehended at the spot, can be held to have been proved to be in possession of the contraband ? Having regard to the facts of the case, when the police party had seen Sukha Singh, and no explanation has been given as to why he was not apprehended immediately even if he had run away, recovery of contraband against him cannot be said to have been proved beyond reasonable doubts. 15. The judgment in Roy V.D.s case (supra), relied on by counsel for the appellants will not apply as the same related to recovery being effected by an unauthorized person. The judgment in Gurjit Singhs case (supra) will also not apply as the present case is covered by section 43 of the Act. The judgment of Dev Rajs case (supra) does not apply as any irregularity in investigation cannot be itself be fatal to the prosecution. Any observation that an officer who conducts search, should not investigate, will not render the investigation done and recovery effected inadmissible. Detailed discussion in this respect has been inadmissible. Detailed discussion in this respect has been made in the judgment in Criminal Appeal No. 120-B of 2000 (Tejo and another v. State of Punjab) passed today. The judgment in Emma Charlotte Eves case (supra) does not apply to the facts of the present case. Detailed discussion in this respect has been inadmissible. Detailed discussion in this respect has been made in the judgment in Criminal Appeal No. 120-B of 2000 (Tejo and another v. State of Punjab) passed today. The judgment in Emma Charlotte Eves case (supra) does not apply to the facts of the present case. Similarly, judgment in Harbans Singhs case (supra) is also of no help to the accused as in the present case, accused Surjan Singh has been clearly shown to be in possession of contraband article; judgment in Gurbux Singhs case (supra) is distinguishable on facts and does not render any support to the accused. For the above reasons, appeal of appellant Sukha Singh is accepted and he is acquitted. Appeal of Surjan Singh is, however, dismissed. Appeal dismissed.