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2003 DIGILAW 197 (HP)

HIRA GIRI ALIAS HARDEV GIRI v. STATE OF H. P.

2003-07-23

M.R.VERMA, R.L.KHURANA

body2003
JUDGMENT M.R. Verma, J.—This appeal is directed against the judgment dated 4.5.2001 passed by the learned Special Judge (Sessions Judge), Solan in Sessions Trial No. 23-S/7 of 2000 whereby the accused/appellant (hereafter referred to as the accused) has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter referred to as the Act) and has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of rupees one lac and in default of payment of fine, to undergo further rigorous imprisonment for three years. 2. The case of prosecution, in brief, is that on 4.5.2000 Sub-Inspector Rajinder Kumar (PW-11) received a secret information that the accused was travelling from Shimla towards Solan in self-driven Mahendra Jeep No. HP-09-045 wherein he was transporting Charas. The information was recorded in the form of daily diary report No. 17 (Ext. PN) a copy thereof was sent to the Superintendent of Police, Solan. A raiding party was then constituted by PW-11 consisting of independent witnesses Kanti Swarup (PW-1) and Maya Ram (PW-2) and police officials, namely, HC Medh Ram, Constables Harpal Singh, Ajit Singh and Manmohan Singh and a Nakka was laid at Salogra near Shiv Mandir on Chandigarh Shimla National Highway When the aforesaid Jeep, driven by the accused, reached there, it was stopped and the accused was apprehended and was informed by PW-11 that he suspected him to be in possession of some contraband. After disclosing his identity, PW-11 apprised the accused that he had a legal right to be searched either by an Gazetted Officer or a Magistrate or by him. The accused expressed his desire to be searched by PW-11 whereon SEHMATI PATRA Ext. PA was drawn up wherein the consent part for search by PW-11 Ext. PA/1 is in the handwriting of and signed by the accused. Thereafter PW-1 and other members of the raiding party gave their search to the accused and nothing incriminating was found on their persons. Memo. Ext. PB was prepared in this regard. Thereafter personal search of the accused was conducted. He was having a black belt bag (purse) around his waist. This bag contained four pouches of Charas and currency notes worth Rs. 5,950. Thereafter search of the vehicle was conducted and two polythene bags were found underneath the drivers seat of the Jeep. Memo. Ext. PB was prepared in this regard. Thereafter personal search of the accused was conducted. He was having a black belt bag (purse) around his waist. This bag contained four pouches of Charas and currency notes worth Rs. 5,950. Thereafter search of the vehicle was conducted and two polythene bags were found underneath the drivers seat of the Jeep. One of such bags contained five small pouches of Charas whereas the other contained seven pouches of Charas. The Charas recovered from belt bag weighed 200 gms. and that recovered from two polythene bags, weighed 620 gms. and 370 gms. respectively. Two samples of 25 gms. each were taken out of the Charas found in the belt bag and two samples of 25 gms. were taken out of the Charas recovered from the polythene bags found under the drivers seat. The samples and the bulk Charas were made into separate parcels which were sealed with seal impression H and were seized vide seizure memo. Ext. PC in the presence of the independent witnesses. One copy of the seizure memo, was given to the accused against receipt. PW-11 then drew up the Ruka Ext. PP and sent it to Police Station, Solan where formal FIR Ext. PR was recorded. Inspector Achharpal Singh, SHO Police Station, Solan then proceeded to the spot and took over the investigation. All the documents, sealed packets containing the samples and bulk Charas and the case file, including three NCB. Forms, were handed over to him by PW-11 vide memo. Ext. PQ. He re-sealed the case property with seal A, prepared Naksha Mauka Ext. PS and took in possession the Jeep and its documents vide memo. Ext. PM. 3. On 5.5.2000 while in police custody, the accused made a disclosure statement Ext. PH to ASP Lakshmipati (PW-13) in the presence of Devinder Singh (PW-3) and Mohan Singh regarding concealing of Charas in a wooden box in his room near Galu Temple in Shimla. Such a statement was recorded and is Ext. PH. Pursuant to the said statement, the accused got recovered Charas weighing 8 kgs. 900 gms. kept in eight polythene bags from his room in the presence of Dev Raj (PW-4) and Khem Chand. The Charas so recovered was mixed up and two samples of 25 gms. each were drawn therefrom. Such a statement was recorded and is Ext. PH. Pursuant to the said statement, the accused got recovered Charas weighing 8 kgs. 900 gms. kept in eight polythene bags from his room in the presence of Dev Raj (PW-4) and Khem Chand. The Charas so recovered was mixed up and two samples of 25 gms. each were drawn therefrom. Samples and the bulk Charas were made into separate parcels and were sealed with seal K vide Panchnama Ext. PJ. 4. Three samples one each of the Charas recovered from the belt bag, box and polythene bags found underneath the drivers seat of the Jeep were sent for analysis to H.P C.T.L. Kandaghat. On analysis, the Chemical Examiner of the said laboratory vide his reports Ext. PX and Ext. PY found the samples to be of Charas. On completion of the investigation, a final report was submitted against the accused for commission of the offence by him. 5. The trial Court framed a charge against the accused under Section 20 of the Act to which he pleaded not guilty. To prove the charge against the accused, prosecution examined 13 witnesses, the accused was examined under Section 313 of the Code of Criminal Procedure wherein he denied the case of the prosecution and claimed that he has been "roped in frivolously". His version is that the police was interrogating and harassing one Baba in the temple at Salogra and when the accused objected, the Police caught hold of him and framed a false case against him. The accused examined R.R. Sharma (DW-1) in his defence. 6. On the basis of the material on record, the learned trial Judge held that 1170 gms. of Charas kept in the belt bag and underneath the drivers seat of the Jeep was proved to have been recovered from the possession of the accused but the Charas weighing 8 kgs. 900 gms. allegedly recovered from the room of the accused was not so proved. On the basis of the former findings, the accused was held guilty of the commission of an offence punishable under Section 20 of the Act and was accordingly convicted and sentenced as aforesaid. Hence, this appeal. 7. We have heard the learned Counsel for the accused and the learned Additional Advocate General for the respondent State and have also perused the records. 8. Hence, this appeal. 7. We have heard the learned Counsel for the accused and the learned Additional Advocate General for the respondent State and have also perused the records. 8. The learned Counsel for the accused had assailed the impugned conviction and sentence on the following grounds : (i) That the search of the accused is vitiated for want of compliance of the mandatory provisions of Section 50 of the Act; (ii) That there is no link evidence to connect the samples of Charas allegedly analysed in the laboratory with the bulk thereof; and (iii) In the alternative, that the quantity of Charas recovered from the possession of the accused, being less than the commercial quantity, he was entitled for lesser punishment. Ground No. (i) 9. According to the prosecution, the Charas weighing 990 gms. was found in two polythene bags kept underneath the drivers seat of the Jeep. Thus, this recovery was not effected on personal search of the accused, therefore, provisions of Section 50 of the Act are not applicable to this recovery. It cannot, therefore, be held that there had been non-compliance of mandatory provisions of Section 50 of the Act regarding this recovery. 10. In so far as the question of the alleged recovery of 8 kg. 900 gms. of Charas pursuant to the disclosure statement of the accused is concerned, that does not survive for determination in this appeal and findings of the trial Court in this regard have become final. 11. It is case of the prosecution regarding recovery of 200 gms. of Charas that it was found kept in a black belt bag fastened to the waist of the accused. Therefore, in our view this recovery was a result of personal search of the accused and provisions of Section 50 of the Act are applicable to this part of the search. 12. It was contended by the learned Counsel for the accused that search and recovery qua 200 gms. of Charas is vitiated as the accused before his personal search was not made aware of his right of search before a Gazetted Officer or the Magistrate. 12. It was contended by the learned Counsel for the accused that search and recovery qua 200 gms. of Charas is vitiated as the accused before his personal search was not made aware of his right of search before a Gazetted Officer or the Magistrate. To substantiate his contention the learned Counsel has relied on Laleshwar Rajak Kalanand Dhobi v. State of Gujarat, 2002 SCC (Cr.) 1846; Beekodan Abdul Rahman v. State of Kerala, 2002 SCC (Cr.) 791; State of Punjab v. Baldev Singh, AIR 1993 SC 2378 and T. Hamza v. State of Kerala, 2000 SCC (Cr.) 216. 13. The ratio in the aforesaid cases is that the officer who intends to take the personal search of a person suspected of being in possession of a contraband, by virtue of the provisions of Section 50 of the Act is duty bound to inform the suspect of his right of being taken to a Gazetted Officer or a Magistrate for search and non-compliance thereof will vitiate the search and recovery and thereby render the conviction of the accused liable to be set aside. Thus the ratio of the above cases will apply to such cases when the suspect/accused had not been given the offer of search before a Gazetted Officer or a Magistrate. 14. Be it stated that there is no special form of apprising the accused of his right of being taken to a Gazetted Officer or a Magistrate. Thus what is required to be done is to give an option to the accused to ascertain his desire whether for the search he wanted to be taken to a Gazetted Officer or a Magistrate. Once it is done, whether orally or in writing the requirement of the provisions of Section 50 of the Act shall stand complied with. 15. In the case in hand, the prosecution to prove that the provisions of Section 50 of the Act were duly complied with relies on the statements of Kanti Swaroop (PW-1), Maya Ram (PW-2), S.I. Rajinder Kumar (PW-11) and the option memo Ext. PA which had been prepared by PW-11 and PW-1 and PW-2 are its marginal witnesses. 16. The relevant part of Ext. PA reads as under: "Mujhe aap ke pass kisee avaidh vastu hone ka andesha hai. PA which had been prepared by PW-11 and PW-1 and PW-2 are its marginal witnesses. 16. The relevant part of Ext. PA reads as under: "Mujhe aap ke pass kisee avaidh vastu hone ka andesha hai. Is ashanka ke paryapt karan hain, jis hetu mein aap ki jama va aap ki Mahendra Jeep No. HP-09-0445 ki jama talashi lena chahta hurt. Ata aap bina kisi bhai ke apni sehmati prakat karen, ki aap apni va apne Mahendra Jeep ki jama va khana talashi mojooda arthat man S.I. ko dena chahtey hain ya kisi Magistrate va G.O. Ko apni Talashi dena chahtey hain. Ata is bara aap apni sehmati prakat kareyn." 17. Part Ext. PA/1 of Ext. PA encircled in red is the option given by the accused and reads as under : "Shriman ji mein apni jama talashi va apni Mahendra Jeep HP-09-0445 ki talashi aap S.I. Rajender Kumar ko he dena chahta him na ki kisi G.O. ya Magistrate ko. Is karyavahi se mein sehmat hoon Sd/ Hardev Giri." 18. PW-11 has fully supported the prosecution version regarding giving of the requisite option to the accused by him vide Ext. PA and giving of consent by the accused for being searched by him vide Ext. PA/1. His statement is cogent, reliable and confidence inspiring more-so in view of the fact that it is not the case of the accused that he did not write and sign Ext. PA/ 1 but his case is that Ext. PA/1 was got signed from him by giving him beatings as suggested to PW-11 but has been denied by him. Such suggestion has not been given to other witnesses nor it is so stated by the accused in his statement under Section 313 of the Code of Criminal Procedure. It is, however, implicit in the above suggestions to PW-11 that Ext. PA is signed by the accused. 19. PW-1 and PW-2 have partly resiled from their statements under Section 161 Cr.P.C. nevertheless their evidence lend support to the statement of PW-11 regarding giving of the option to the accused as in Ext. PA and the consent given by the accused vide Ext. PA/1. In this regard evidence of PW-1 is as follows: "I do not know the accused present in the court. PA and the consent given by the accused vide Ext. PA/1. In this regard evidence of PW-1 is as follows: "I do not know the accused present in the court. One of the baba was asked by the police as to whether he would like to be searched by him or before a Gazetted Officer or a Judge. The said baba (Sadhu) disclosed to the police that he had no objection if search was conducted by the said police officer who had put the aforesaid question to the baba." He has further stated as follows: "Ext. PA was written entirely in my presence. This is correct that I admitted Ext. PA to be correct and thereafter I appended my signatures. I do not, know whether the said Baba disclosed his name to be Hardev Giri or not. But he did disclosed his name. However whatsoever name disclosed by the said baba was duly written on Ext. PA by the police." 20. It is apparent from the above quoted portions of the statement of PW-1 that the requisite option was given by PW-11 to the accused who gave his consent for being searched by him. 21. PW-2 while deposing about the coming into being of Ext. PA and PA/1 has stated as follows: "Ext. PA to PC bear my signatures. I admitted the Ext. PA to PC to be correct and thereafter appended my signatures. One of these babas/Sadhus was asked by the police as to whether he wanted to be searched by him or by the Gazetted Officer or a Magistrate. The baba disclosed that he had no objection to be searched by him in their presence. The baba signed Ext. PA. The baba wrote with his own hands at Ext. PA which is Ext. PA/1. Thereafter I also appended my signatures on the Ext. PA. The said baba on being asked disclosed his name to be Hardev Giri. The address disclosed by the baba was also written in Ext. PA." He has further stated as under: "It is correct to say that the said baba/Sadhu who disclosed his name as Hardev Singh alias Heera Singh is the same who is present in the court today who was arrested by the police on the spot." The above quoted portions of the statement of PW-2 fully support the version of PW-11. 22. 22. It is true that PW-1 and PW-2 have not supported the prosecution case as a whole and were declared hostile but the prosecution can take benefit of the aforesaid evidence of PW-1 and PW-2. 23. It is evident from the above quoted contents of Ext. PA and Ext. PA/1 read with the statements of PW-1, PW-2 and PW-11, as discussed above, that accused was given the option of being searched before a Gazetted Officer or a Magistrate or PW-11 and the accused declined to have the search proceedings conducted before Gazetted Officer or Magistrate and consented to be searched by PW-11. Therefore, the prosecution has proved that the provisions of Section 50 of the Act were duly complied with by the Investigating Officer (PW-11) and the contentions to the contrary is without any merit and substance. Ground No. (ii) : 24. The learned Counsel for the accused, in support of this ground contended that there is no complete link evidence to connect the samples sent for analysis with the bulk case property. Elaborating the contention, the learned Counsel submitted (i) that there is no evidence regarding taking of separate impression of the seal used for sealing the case property or about sending of such impression to the laboratory, (ii) that there is no evidence to prove that NCB Forms were duly prepared, marked with the impression of the seals used for sealing the case property and were sent to the laboratory with the samples, (iii) that the seals used for sealing the case property had not been produced at the trial, and (iv) that the samples retained by the police were not produced at the trial. It is, therefore, urged that the above lapses by the Investigating Agency not only render the prosecution case unreliable but also suggest that the investigation in the case was not fair, therefore, the conviction cannot be sustained. 25. On the other hand, the learned Additional Advocate General, while supporting the findings recorded by the trial Court, contended that in view of the evidence on record, the analysed samples are connected with the bulk Charas and the conviction does not call for any interference on the basis of the contention raised for the accused. 26. As per the contents of memo. Ext. PC, on search of the belt bag of the accused (Ext. P-4), currency notes worth Rs. 5,950 (Ext. P-5) and 200 Gms. 26. As per the contents of memo. Ext. PC, on search of the belt bag of the accused (Ext. P-4), currency notes worth Rs. 5,950 (Ext. P-5) and 200 Gms. of Charas were recovered. From two polythene bags kept in the Jeep under drivers seat 620 gms. and 370 gms. of Charas was recovered. Two samples each were drawn from the charas found in the belt bag and the polythene bags and were sealed with seal H and were marked S-l, S-2, S-3 and S-4. It is specifically mentioned in Ext. PC that sample seal-impression was separately taken. Memo. Ext. PC was prepared by PW-11 and attested by PW-1 and PW-2 and was signed by the accused. PW-11 has stated that proceedings of search "were drawn in the form of Panchnama Ext. PC in presence of PWs. Kanti Swaroop and Maya Ram. One copy of Ext. PC was delivered to the accused. The signatures of accused and both witnesses were obtained on Ext. PC." He has identified the bulk Charas Exts. P-l, P-2 and P-3, belt bag Ext. P-4 and currency notes Ext. P-5 as having been recovered from the accused. PW-1, who has otherwise turned hostile, admits execution of Panchnama (Ext. PC) and unambiguously states that he signed it after admitting it correct. He has identified in the Court the bulk Charas Exts. P-l, P-2 and P-3, belt bag (purse) Ext. P-4 and currency notes Ext.P-5 as the same which were taken in possession vide memo. Ext. PC and has stated that two samples from the Charas found in the belt bag (Ext. P-4) and two samples from the Charas found under the drivers seat of the Jeep were drawn and has admitted his signatures on each of the packets containing the aforesaid case property. PW-2 has also admitted that Ext. PC was signed by him after admitting it to be correct and it was signed by the accused and the other witnesses. He has stated that four samples of 25 gms. each of the recovered Charas were taken two each from the Charas found in the purse (Ext. P-4) and the Charas recovered from underneath the drivers seat of the Jeep and Panchnama Ext. PC was drawn, fie has identified the accused as the baba who had signed Ext. PC. Thus, the contents of Ext. each of the recovered Charas were taken two each from the Charas found in the purse (Ext. P-4) and the Charas recovered from underneath the drivers seat of the Jeep and Panchnama Ext. PC was drawn, fie has identified the accused as the baba who had signed Ext. PC. Thus, the contents of Ext. PC are admitted to be correct even by the hostile witnesses PW-1 and PW-2. Ext. PC specifically refers to the taking of sample seal-impressions separately at the time of the process of drawing samples and sealing the case property with seal H vide Ext. PC. Therefore, it cannot be said that separate seal impression was not taken and kept by PW-11. 27. PW-11 has stated that after sending of Ruka Ext. PP to the Police Station, SHO Achharpal Singh (PW-12) came to the spot and all the documents and the seized Charas were handed over by him to PW-12 vide inventory Ext. PQ. A perusal of Ext. PQ reveals that four samples marked S-l, S-2, S-3 and S-4 sealed with Seal H, each containing 25 gms. of Charas, two packets containing bulk Charas sealed with seal H, sample seal-impression of seal H, three N.C.R.B. Forms, Jeep, currency notes and other documents prepared by PW-11 were handed over by him to PW-12 who has stated that on receipt of Ruka Ext. PP, he registered FIR Ext. PR and went to the spot and took charge of the investigation. He has corroborated the statement of PW-11 about taking over of the case property and concerned documents vide inventory Ext. PQ. The prosecution evidence in this regard has not been challenged for the accused by way of putting any suggestion to the contrary to the material witnesses who have admittedly signed Exts. PC and PQ as correctly prepared documents. PW-12 has further stated that the case property, handed over to him, was re-sealed by him with seal A vide certificate Ext. PU regarding process of re-sealing of the case property He has further stated that after making entries in the Malkhana register, the case property was kept in the Malkhana in his custody and on 6.5.2000 he sent samples S-l, S-3 and S-5 to the Chemical Examiner, Kandaghat for examination and on receipt of reports Ext. PX and PY from the said Laboratory, he completed the investigation and submitted the final report for trial. 28. PX and PY from the said Laboratory, he completed the investigation and submitted the final report for trial. 28. It is evident from the above discussed evidence that the case property was sealed with seal H, separate seal impression was taken and NCRB. Forms were filled in by PW-11 and were handed over to PW-12 vide inventory Ext. PQ. 29. Mast Ram (PW-5), MHC, who appeared with Malkhana register (Register No. 19), has stated that on 4.5.2000 four sample packets marked S-l to S-4 and two packets of bulk Charas sealed with seal A were handed over to him by PW-12 alongwith sample specimen of seal impressions A and H which he entered in register No. 19. He has further stated that samples marked S-l, S-3 and S-5 were sent by him to Chemical Examiner, Kandaghat alongwith docket RC through Constable Garja Ram (PW-6). It is further in his evidence that these packets remained in his safe and sure custody. There is nothing material in his cross-examination from which it may be inferred that the case property, while in his custody, was tampered with. 30. PW-6 Garja Ram has corroborated the statement of PW-5 about taking of three samples and delivery thereof in the laboratory at Kandaghat and its safe custody. He has not been cross-examined. 31. In so far as bulk case property Exts. P-l, P-2 and P-3 is concerned, it was produced in the Court and the observations of the learned trial Judge about the condition of two packets of Charas one containing Exts. P-l and P-2 and the other Ext. P-3 are that each of the packets was sealed with six impressions of seal A which were intact. On opening of these packets, one packet in each, sealed with six seal impressions of seal H was found. Seals on both the packets so found were also intact. These observations of the learned trial Judge, read with the above discussed evidence, clearly establish that the bulk case property throughout remained in safe custody and was not tampered with. 32. Much has been sought to be made in favour of the accused from the statements of PW-5 and PW-12 each of whom has stated that the case property remained in his custody in the Malkhana and he sent it to the Laboratory and none has stated that NCB. Form and specimen seal impressions were also sent to the laboratory. 32. Much has been sought to be made in favour of the accused from the statements of PW-5 and PW-12 each of whom has stated that the case property remained in his custody in the Malkhana and he sent it to the Laboratory and none has stated that NCB. Form and specimen seal impressions were also sent to the laboratory. 33. Be it stated that Officer Incharge (SHO) is the overall incharge of the Police Station. Though the Mohrrer Malkhana of a Police Station is the official responsible for maintaining and keeping the relevant registers and articles deposited in the Malkhana, but he is only the immediate incharge of the Malkhana. The Officer Incharge of the Police Station being overall Incharge of the Police Station, every official function of the Police Station is done under his control and supervision. It is because of these roles the two officials perform in the functioning of a Police Station that the statements of PW-5 and PW-12 have to be appreciated. It is not the case of the accused in his statement nor has been suggested to the material witnesses that the samples and bulk case property were not deposited in the Malkhana. As per evidence of PW-5 and PW-12, the case property remained deposited in the Malkhana. On entrustment to PW-6 by PW-5, the former took it to the Laboratory and deposited it there. Acts of PW-5 and PW-6 are the acts of PW-12 in the sense that he is the overall incharge of the Police Station wherein official acts are done as commanded by him and under his supervision. As is evident from the statements of PW-5 and PW-6, the samples in fact were sent to the Laboratory by PW-5 and were taken and delivered there by PW-6. Thus, the statement of PW-12 that he sent the samples to the Laboratory in no way out at the root of the prosecution case. 34. Two samples which are relevant for the purpose of the appeal, according to the prosecution, were sent to the Chemical Examiner vide NCRB a part of the report Ext. PX. It may be pointed out that Ext. PX is a composite document. Front page of it is NCRB form and the back page contains columns "for use in Laboratory only". Two samples which are relevant for the purpose of the appeal, according to the prosecution, were sent to the Chemical Examiner vide NCRB a part of the report Ext. PX. It may be pointed out that Ext. PX is a composite document. Front page of it is NCRB form and the back page contains columns "for use in Laboratory only". As per contents of NCRB form, the samples, so sent for analysis, were two of the four samples drawn from the Charas recovered from the purse Ext. P-4 and from under the drivers seat of the Jeep and were sealed with seal H and re-sealed with seal A each having six impressions of seal H and six impressions of seal A. It is further clear from the contents against serial No. 10 of the form that six pieces of clothes, each containing three seal samples, were also enclosed with the NCB form. Two certificates signed by the Chemical Examiner are appended to the report Ext. PX. One of such certificates is that on 6.5.2000 two samples of Charas were received in the laboratory through Garja Ram (PW-6) by hand and the seals were found intact and unbroken. Second certificate is that the seals on the samples tallied with the specimen impressions of seals sent separately. It is, thus, evident that NCB form and specimen impressions of seal were sent to the laboratory alongwith the samples of Charas. As per the opinion of the Chemical Examiner, the samples so received were found to contain contents of Charas. 35. The link evidence in a case as in hand is the evidence to connect the samples sent for chemical analysis with the bulk case property. Its purpose is to ensure that the sample analysed in the laboratory is of the bulk contraband and to rule out tampering with the sample or the case property. The evidence discussed hereinabove, clearly establishes that the samples and the bulk Charas were duly sealed with seal H by PW-11 and then re-sealed with seal A by PW-12. The specimen seal impressions were separately taken and the NCRB forms were filled in by PW-11 and handed over to PW-12 vide inventory Ext. PQ. Two of the samples were sent to the laboratory intact and alongwith specimen of the seal and NCB form vide contents of Ext. The specimen seal impressions were separately taken and the NCRB forms were filled in by PW-11 and handed over to PW-12 vide inventory Ext. PQ. Two of the samples were sent to the laboratory intact and alongwith specimen of the seal and NCB form vide contents of Ext. PX and there is nothing material on record to suggest tampering with the samples or the case property. Thus, the link evidence led by the prosecution is complete and reliable and fully proves that the report Ext. PX relates to two of the samples of Charas recovered from the possession of the accused. 36. The seals used for sealing the case property, specimen thereof and second samples retained by the investigating agency, have admittedly not been produced in the trial Court. However, in view of the evidence led by the prosecution, as already discussed hereinabove, such non-production is not fatal to the case of the prosecution. Production of the seals and its specimen impressions at the trial is not the requirement of law but only a circumstance to reinforce the prosecution evidence and in case there is other cogent and reliable evidence like contemporaneous records supported by confidence inspiring evidence of witnesses, such non-production will be rendered inconsequential. 37. In Fredrick George v. State of H.R, 2002 Cr.L.J. 4600, a Division Bench of this Court, while examining the effect of non-production of seal used for sealing the case property and the relevant witnesses, held as under:— "62. It is a fact that the seals used for sealing and re-sealing the bulk case property and the samples have not been produced at the trial. In Manjit Singhs case (supra) while dealing with the effect of non-production of the seal, this Court held as under:, In the absence of any mandatory provision in the law/Rules of procedure relating to sealing of the case property, that the seal used in sealing the case property must be produced at the trial, it cannot be said that failure to produce such seal at the trial will be fatal to the case of the prosecution. It will depend on the facts and circumstances of each case whether by non production of the seal at the trial any doubt is raised about the safe custody of the case property or not. 63. It will depend on the facts and circumstances of each case whether by non production of the seal at the trial any doubt is raised about the safe custody of the case property or not. 63. In view of the above position in law and the conclusion we have already arrived at hereinabove that there is unchallenged and trustworthy evidence that the case property was not tampered with at any stage, the non production of the seals used for sealing and re-sealing of the bulk case property of the samples is also of no help to the accused." 38. The above view was subsequently reiterated by the Division Benches of this Court in Manjit Singh v. State of H.R, 2001 (2) Cr.L.J. (HP) 106; Soni v. State of H.P. Cr. A. No. 182 of 2001, decided on 11.6.2003, Rajesh Kumar v. State of H.P. Cr. A. No. 547 of 2001, decided on 10,7.2003. In view of this position in law and the findings hereinabove recorded, the non-production of the seals or the specimen impressions thereof in this case is inconsequential and of no help to the accused. 39. The second sample of a contraband evidently is retained to meet the eventuality like the loss of or damage to the sample sent for analysis rendering analysis thereof impossible or if so desired by the accused, to get the second sample analysed to prove his innocence. It is also not the requirement of law that second sample of the contraband must invariably be produced by the prosecution at the trial. Therefore, second samples retained by the investigating agency were not required to be produced at the trial nor such non-production has caused any prejudice to the accused. Hence such non-production is also of no help up to the accused. 40. In view of the above discussion, it is held that the bulk case property and the samples thereof were not tampered with and the two samples sent to the Laboratory were two of the samples marked S-l to S-4 drawn from the Charas recovered from the belt bag (Ext. P-4) and from underneath the drivers seat of the Jeep admittedly owned by the accused. 41. P-4) and from underneath the drivers seat of the Jeep admittedly owned by the accused. 41. The prosecution, however, has failed to prove that out of the two samples which were got analysed, one was the sample drawn from the Charas found in bold box and the other was drawn from the Charas found in the polythene bags kept under the drivers seat of the Jeep. It is case of the prosecution that two samples were drawn from each of the Charas recovered from Ext. P-4 and Charas found in two polythene bags, kept under the drivers seat in the Jeep. Four samples, so drawn, were marked S-l to S-4. There is, however, not even an iota of evidence to prove as to which two samples out of the samples marked S-l to S-4 were drawn from each volume of the Charas so recovered. Further, there is no evidence to prove that one of the two samples sent for analysis was drawn from the Charas found in Ext.P-4 and the other was drawn from the Charas recovered from under the drivers seat of the Jeep. Therefore, the possibility that both the samples sent for chemical analysis, were those drawn only from the Charas Ext. P-4 or from the Charas found kept underneath the drivers seat of the Jeep. In these circumstances what can be concluded is that the samples sent for analysis were undoubtedly of the Charas recovered from the possession of the accused but for want of any evidence whatsoever, we are not in a position to hold that each of the two samples analysed in the Laboratory was representative of each volume of the Charas recovered by the police from Ext. P-4 and from under the seat of the driver, but one or both of them was/were of at least one bulk of the Charas so recovered from the possession of the accused. Thus, it can safely be concluded that either of the two bulks, one recovered from the belt bag Ext. P-4 and the other from under the drivers seat of the Jeep, is Charas. Therefore, the conviction cannot be held bad in law and has to be sustained and the contention to the contrary is rejected. Ground No. (iii) 42. Thus, it can safely be concluded that either of the two bulks, one recovered from the belt bag Ext. P-4 and the other from under the drivers seat of the Jeep, is Charas. Therefore, the conviction cannot be held bad in law and has to be sustained and the contention to the contrary is rejected. Ground No. (iii) 42. It may be pointed out that no ground other than the two grounds, already discussed and decided hereinabove and the present one was pressed for the accused. The relevant recovery of Charas from the possession of the accused is fully established in view of the prosecution evidence as already referred to. Even the accused had not disputed the ownership of the Jeep in question and the currency notes worth Rs. 5,950/(Ext. P-5) found in the belt bag Ext. P-4. It is not the case of the accused that at the relevant time some other person was in exclusive possession and control of the Jeep or that the currency notes Ext. P-5 were not recovered from Ext. P-4. Therefore, we do not find any reason to interfere with the impugned conviction except that such conviction is sustainable only to the extent of recovery of non-commercial quantity of Charas from the possession of the accused. 43. In view of the above conclusions, the alternative contention of the learned Counsel for the accused for lesser punishment calls for consideration. Judgment, the minimum punishment provided for an offence punishable under Section 20 of the Act was imprisonment for 10 years and fine of Rs. 1,00,000. However, the provisions of Section 20 of the Act were amended vide Section 7 of the Narcotic Drugs and Psychotropic Substances (Amendment) Act (Act No. 9 of 2001) (hereafter referred to as the Amending Act), whereby the legislature downgraded the harshness of the sentence and provided different sentences for possession of Charas as per the quantity recovered from the possession of the accused. Now under the amended provisions of Section 20, in a case which involves the quantity of the Charas lesser than commercial quantity, but greater than small quantity, the minimum sentence of 10 years rigorous imprisonment and fine of Rs. 1,00,000 has been downgraded to the sentence of rigorous imprisonment which may extend to 10 years with fine which may extend to Rs. 1,00,000 has been downgraded to the sentence of rigorous imprisonment which may extend to 10 years with fine which may extend to Rs. 1,00,000 and the rider of passing the minimum sentence as was earlier provided irrespective of the recovered Charas, stands removed. 45. It may, however, be pointed out that Section 41(1) of the Amending Act specifically provides that the amended provisions shall not apply to cases pending in appeal. Therefore, the question arises as to whether in view of the aforesaid rider making the amended provisions non applicable to the pending appeals, the accused can be given the benefit of the amended provisions? 46. In State through CBI Delhi v. Gian Singh, 1999, Cri. L.J. 4315 while dealing with the jurisprudential philosophy underlying Article 20 of the Constitution of India, the Honble Supreme Court held as under:— "32. What is the jurisprudential philosophy involved in the second limb of Clause (1) of Article 20 of the Constitution? "No person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence." It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribed, and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would downgrade the harsness of the sentence for the same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence." 47. On the basis of the above ratio, a Division Bench of this Court in Rajinder Singh v. State (Cr. A. No. 284 of 2001, decided on 14.5.2003) and Satpal v. State (Cr. A. No. 586 of 2001, decided on 19.5.2003) had held that benefit of the amended provisions of Section 20 of the Act, providing lesser punishment for a convict who is found in possession of non-commercial quantity of Charas can be given even by a Court of appeal. Another Division Bench of this Court in Tom Marshall v. State of H.P. (Cr. A. No. 69 of 2001, decided on 21.11.2002, Delhi High Court in Hari Om v. State, 2003 Cri. Another Division Bench of this Court in Tom Marshall v. State of H.P. (Cr. A. No. 69 of 2001, decided on 21.11.2002, Delhi High Court in Hari Om v. State, 2003 Cri. L.J. 979 and Punjab and Haryana High Court in Ram Singh v. State of Haryana, 2002 (3) Recent Criminal Reports 728 had taken similar view. 48. In view of the above decisions, punishment awarded to the accused by the trial Court deserves to be reduced as the accused is proved to be in possession of non-commercial quantity of Charas and is not shown to be a previous convict. 49. In view of the discussion and conclusions hereinabove, this appeal is partly allowed and while maintaining the conviction of the accused under Section 20 of the Act, but only for being in possession of non-commercial quantity of Charas, the sentence imposed on him is reduced to rigorous imprisonment for three years and fine of Rs. 33,000. In default of payment of fine, the accused shall undergo further rigorous imprisonment for one year. Appeal partly allowed.