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2004 DIGILAW 915 (PNJ)

Jaswant Singh Alias Jassa v. State Of Haryana

2004-08-18

S.S.SARON

body2004
Judgment S.S.Saron, J. 1. This is an appeal against the judgment and order dated 8.9.2003 pased by the learned Presiding Officer, Special Court, Kurukshetra whereby the appellant has been convicted for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`Act) for short) and sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs. one lac failing which he has to further undergo rigorous imprisonment for one year besides, the case property has been ordered to be confiscated to the State. 2. The facts leading to the case are that case FIR No. 142 dated 8.12.1999 (Ex. PE/1) was registered on the statement of Sub Inspector/SHO Police Station Cheeka. It is stated that the Sub Inspector/SHO along with other police officials in Government vehicle No. HR-88-2010 driven by Constable Narinder Singh No. 305 in connection with patrolling and checking crime were present at Patiala Road, Cheeka near the Truck Union. Paras Ram, Sub Inspector (PW-9) and Constable Dalbir Singh No. 677 of the CIA Staff Guhla joined them per chance. When he was talking with them, an informer gave secret information to the effect that the appellant resident of Daban Kheri (now Sanjay Basti), Cheeka, who had purchased a house in Professor Colony, Cheeka, stores crushed poppy husk in the said house and sells the same to smugglers. If a raid was conducted, then poppy husk in large quantity could be recovered. Information was found to be credible and from which an offence under Section 15 of the Act was made out. So a writing was sent to the Police Station for registration of the case. The Sub Inspector/SHO along with police officials proceeded to the house of above said appellant for conducting raid. Witnesses were to be joined on the way. On receipt of the memo giving the above said information, case under Section 15 of the Act was registered at Police Station Cheeka. The police party while proceeding to the spot at some distance per chance met Harbhajan Singh, Sarpanch of Village Daban Kehri (DW-1), who was asked to join the police party but he expressed his inability. When the police party was going to the house of the appellant at a distance of about 100 yards from the house, the appellant met them and he was apprehended. When the police party was going to the house of the appellant at a distance of about 100 yards from the house, the appellant met them and he was apprehended. A notice under Section 50 of the Act was served on the appellant and he was asked whether he wanted to be searched by the Investigating Officer or by a gazetted officer or a magistrate. On this, the appellant opted to be searched by a gazetted officer or a magistrate. In the meanwhile, Om Parkash, DSP, Guhla (PW-6) came there along with Norang Dass, Naib Tehsildar, Guhla (PW-8). The appellant was interrogated and he suffered a disclosure statement (Ex. PD) to the effect that he had concealed poppy husk in the store room of his house in Professor Colony, Cheeka and he could get the same recovered after demarcation. The appellant then led the police party to the disclosed place and after opening the lock of his house got recovered 68 bags of poppy husk along with one weighing scale and weights measuring 1 Kg. and 2 Kgs. From each bag 250 grams of poppy husk was separated as sample and the remaining on weighing was found to be 39 Kgs. 750 grams in each bag. The sample parcel and residue bags were converted into separate parcels and were sealed with the seal of the DSP `OP and that of the SI/SHO `RS. Seal `OP was retained by the DSP while that of `RS was handed over the Paras Kumar, SI (PW-9). The 68 bags of poppy husk and weights were taken into possession vide recovery memo (Ex. PE) which was attested by the DSP and other witnesses. The 68 bags of poppy husk and weights were taken into possession vide recovery memo (Ex. PE) which was attested by the DSP and other witnesses. The site plan (Ex. PK) was prepared. The statements of witnesses were recorded and the appellant was arrested. The case property of 68 bags, sample parcels, specimen and seals impressions, weighing scales and weights were taken to the Police Station and deposited with the MHC with seals intact. The appellant was lodged at the police lock-up. Report was sent under Section 57 of the Act to higher officers. Thereafter statements of the police officials were recorded. After completion of investigation, the challan was filed in the Special Court (NDPS Act), Kaithal on 24.2.2002. The appellant was lodged at the police lock-up. Report was sent under Section 57 of the Act to higher officers. Thereafter statements of the police officials were recorded. After completion of investigation, the challan was filed in the Special Court (NDPS Act), Kaithal on 24.2.2002. The learned Special Court from the perusal of the police report and other documents found a prima facie case under Section 15 of the Act to be made out against the appellant. Accordingly, the appellant was charged for the said offence on 6.3.2002 on the allegations that he was found in possession of 68 gunny bags without permit or licence and thereby committed an offence punishable under Section 15 of the Act. The appellant pleaded not guilty and claimed trial. 3. The prosecution in order to prove its case examined as many as ten witnesses besides tendering documents and closed its evidence. The statement of the appellant in terms of Section 313 of the Code of Criminal Procedure (`Cr.P.C. for short) was recorded in which he stated that the case was false and had been planted at the behest of Ex-Sarpanch Sukhinder Singh, who was inimical to his family. A case under Section 307 IPC stood registered against Ex-sarpanch Sukhwinder Singh, his brother Nishan Singh and Karnail Singh which was pending in Court. In the said case Raghubir Singh, elder brother of the appellant was injured by way of a fire arm used by said Sukhwinder Singh and his family members. It is stated that the Police never met the appellant at the alleged place and no recovery was effected from him. The police party, it is stated, forcibly took him from Sanjay Basti, Cheeka on the night intervening 7/8.12.1999 and involved him in this false case. 4. The learned Special Judge, after considering the evidence and materials on record, as already noticed, convicted and sentenced the appellant for the offence under Section 15 of the Act which is assailed in this appeal. 5. Shri G.S. Gandhi, Advocate, learned counsel for the appellant has contended that there is failure on the part of Randhir Singh, Inspector (PW-10) to comply with the mandatory provisions of Sections 42 and 50 of the Act and, therefore, the trial is vitiated and the appellant is liable to be acquitted. 5. Shri G.S. Gandhi, Advocate, learned counsel for the appellant has contended that there is failure on the part of Randhir Singh, Inspector (PW-10) to comply with the mandatory provisions of Sections 42 and 50 of the Act and, therefore, the trial is vitiated and the appellant is liable to be acquitted. The Investigating Officer has not recorded the reasons of belief for conducting the raid without taking prior permission of the Court. It was also contended that the offer of search made in terms of Section 50 of the Act was not a complete offer of search. It is also contended that it is a case of padding and the contraband has been planted on Jaswant Singh (appellant), which is evident from his statement under Section 313 Cr.P.C. wherein he has specifically stated that he has been involved in the case at the behest of Sukhwinder Singh, Ex-sarpanch of Village Daban Kheri, whose two brothers are facing criminal trial for causing gun shot injury to Raghubir Singh, the elder brother of the appellant. Besides, there are numerous glaring illegalities which are patent on the record. Therefore, the appeal is liable to be allowed and accused acquitted. 6. In response, Shri Sudhir Nehra, learned counsel for the State has contended that the prosecution has proved its case in all respects. The provisions of Section 42 of the Act have been complied with and, in any case, it is not shown whether any prejudice has been caused to the appellant. The search in the case has been conducted in accordance with the procedure provided by law and the discrepancies said to have been committed and as pointed out by the learned counsel for the appellant are of trivial nature which do not, in any manner, affect or vitiate the trial and conviction of the appellant. 7. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. 8. Randhir Singh, Inspector (PW-10) in his deposition in Court has stated that he was posted as SHO/Sub Inspector of Police Station Cheeka on 8.12.1999 and he on that day along with other police officials was present near the Truck Union, Cheeka. 7. I have given my thoughtful consideration to the respective contentions of the learned counsel for the parties. 8. Randhir Singh, Inspector (PW-10) in his deposition in Court has stated that he was posted as SHO/Sub Inspector of Police Station Cheeka on 8.12.1999 and he on that day along with other police officials was present near the Truck Union, Cheeka. He received secret information to the effect that appellant has a house in Professor Colony where he kept poppy husk for sale and that if a raid was conducted poppy husk could be recovered in heavy quantity. On this information memo (ruqa) (Ex. PB) was sent to the Police Station for registration of case. The police party started towards the spot. At some distance Harbhajan Singh, Sarpanch of Village Daban Kheri (DW-1) per chance met the police party who was asked to join the investigation but he expressed his inability. The police party went to the house of the appellant and he was apprehended. A notice under Section 50 of the Act (Ex. PJ) was served on the appellant and he was asked whether he wants to be searched by the Investigating Officer or by a gazetted officer or by a magistrate. The appellant opted to be searched by a gazetted officer or a magistrate vide consent memo (Ex. PJ/1). In the meanwhile, Shri Om Parkash, DSP, Guhla came there along with Norang Dass, Naib Tehsildar, Guhla (PW-8). The appellant was interrogated and he suffered a disclosure statement (Ex. PD) to the effect that he had kept concealed poppy husk in the store room of his house situated at Professor Colony, Cheeka and he could get the same recovered after demarcation. The disclosure statement led to the recovery of 69 bags of poppy husk. The bags were taken into possession vide memo (Ex. PE). Site plan (Ex. PK) was prepared. Statements of witnesses were recorded. Accused was arrested vide arrest memo (Ex. PH). The case property and the accused were taken to the police station. 9. The contention of the learned counsel for appellant is that there has been a failure to comply with the mandatory provisions of Section 42 of the Act which reads as under :- "42. Power of entry, search, seizure and arrest without warrant or authorisation. PH). The case property and the accused were taken to the police station. 9. The contention of the learned counsel for appellant is that there has been a failure to comply with the mandatory provisions of Section 42 of the Act which reads as under :- "42. Power of entry, search, seizure and arrest without warrant or authorisation. - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Act : Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." 10. The provisions of the Act were amended on 9.5.2001 in pursuance of the Narcotic Drugs and Psychotropic Substance (Amendment) Act, 2001 (Act No. 9 of 2001). As per the amendment the words "within seventy-two hours" in Section 42(2) have been substituted for the word "forthwith". In the case in hand, the occurrence is of 8.12.1999, i.e., before the amendment was made on 9.5.2001. Learned counsel for the appellant in support of his contention that there has been a complete failure on the part of the Investigating Officer (PW-10) to comply with the mandatory provisions of Section 42 of the Act has relied on the case of Abdul Rahiman v. State of Kerala, 2002(3) RCR(Crl.) 404 (SC) wherein the Honble Supreme Court after placing reliance on an earlier judgment in State of Punjab v. Balbir Singh, 1994(1) RCR (Crl.) 736 (SC) : 1994(3) SCC 299, held that under Section 42(2) the empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior and if there is a total non-compliance of the provisions, the same affects the prosecution case. The said judgment is also relied under upon as regards the contention of offer of partial search. Learned counsel for the appellant also refers to State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 (SC) which is to the effect that it is imperative on the officer to inform the accused that he has a right of search before a magistrate or a gazetted officer and prosecution has to establish the fact that offer was made and if the search is not conducted as per option of the accused it would vitiate the conviction and sentence of the accused. 11. It may appropriately be noticed that the position with regard to Section 42 of the Act has been considered by a Constitution Bench of the Supreme Court in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 719, wherein conclusions (2-C) and (3) were referred. 11. It may appropriately be noticed that the position with regard to Section 42 of the Act has been considered by a Constitution Bench of the Supreme Court in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 719, wherein conclusions (2-C) and (3) were referred. The same read as under :- "(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or material which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case." 12. The above have also been referred to and considered in the case of Krishna Kanwar (Smt.) alias Thakuraeen v. State of Rajasthan, 2004(2) SCC 608. It was held therein that if the officer concerned has reason to believe from personal knowledge or information given by any person and has taken down in writing that any narcotic drugs or substance in respect of which an offence punishable under Chapter IV of the Act has been committed or any other article which may furnish evidence of the commission of such offence is kept or concealed in any "building or conveyance or enclosed place", he may between sunrise and sunset, do the acts enumerated in Clauses (a), (b), (c) and (d) of sub-section (1) of Section 42. It was further observed that under proviso to sub-section (1) of Section 42, if such officer has reason to believe that search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escaped offender, he may enter and search such building, conveyance or enclosed place any time between sunset and sunrise after recording grounds of his belief. Thus, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Hence, the commission of the act or concealment of document etc. is to be in any building, conveyance or enclosed place. 13. In Rajendra and another v. State of M.P., 2004(1) SCC 432, the Investigating Officer therein was on duty at the GRP Police Station, Bhopal. He received information that two persons who had got down from M.P. Express were waiting at platform No. 2 for coolie with suit-cases and bags in which they were carrying contraband articles (ganja). This information was recorded and the Investigating Officer proceeded with his staff to the place as per information received. On search of the accused the contraband was recovered. The question that was considered was as regards the applicability of Section 42(2) of the Act in respect of search of suit-cases and bags at platform of railway station. It was held that Section 42 compromises of two components, i.e., one relates to the basis of information (i) knowledge, and (ii) information given by person and taken down in writing. The second is that the information must relate to commission of an offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. It was further held that Section 42(2) comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. is to be in any building, conveyance or enclosed place. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. is to be in any building, conveyance or enclosed place. In the circumstances of the said case, it was held that in view of analysis of evidence by the trial Court and also by the High Court, the contention that there was no proof of sending the requisite document to the superior officer had no application. A Division Bench of this Court in Shiv Kumar v. State of Haryana, 1998(1) RCR(Crl.) 33 (P&H) held that if search is conducted in a house at night time police officer was required to record reasons justifying his search at night time as required under Section 42(1) of the Act. In Sajan Abraham v. State of Kerala, 2001(3) RCR(Crl.) 808, the Honble Supreme Court held that the stringency of the provisions of Section 42 of the Act is because of the type of crime involved under it so that no person escapes from the clutches of law. It was observed that the Court however while construing such provisions strictly should not interpret it so literally so as to render its compliance impossible and if in a case, the following of the mandate strictly results in delay in trapping of an accused which may lead to his escape then prosecution case should not be thrown out. 14. In the case in hand, the statement of Randhir Singh, Inspector (PW-10) specifically mentions that on the secret information received by him, a memo (ruqa) Ex. P-8 was sent to the police station. The memo Ex. PB records about the information received and it is on the basis of the same that FIR (Ex. PB/1) was registered. It is mentioned in the memo Ex. PB that the appellant in his house at Professor Colony has kept concealed the contraband (chura post) (poppy husk) and that if a raid is immediately conducted then the contraband can be recovered from the appellant in substantial quantity. It is also mentioned that the secret informer was reliable. The memo Ex. PB was sent for registration of FIR and the Inspector himself proceeded to the spot for investigation. It is also mentioned that the secret informer was reliable. The memo Ex. PB was sent for registration of FIR and the Inspector himself proceeded to the spot for investigation. Information was received at the early hours at 4.20 a.m. At the time of raid Sub-Inspector Paras Kumar (PW-9) was posted as Incharge, CIA Staff, Guhla and he was going along with Constable Dalbir Singh of Cheeka in connection with patrolling near the Truck Union and Randhir Singh, Inspector (PW-10) along with other police officials met him. The latter had received secret information that the appellant in his residential house situated in Professor Colony was habitual of selling poppy husk. He further states that on this memo (ruqa) was sent to the police station and raiding party was organised. Harbhajan Singh, Sarpanch, Village Daban Kheri (DW-1) was asked to join the raiding party. Besides, other persons met them on the way but they showed their inability. Jaswant Singh (appellant) met the police party at a distance of 100 yards from his house. He was asked whether he wanted to be searched by Paras Kumar, SI (PW-9) or by some gazetted officer. The appellant suffered disclosure statement (Ex. PD) that he had kept concealed 68 bags of poppy husk in his house situated in Professor Colony, Cheeka. His statement was recorded and then the Police party reached the house of the appellant and got recovered 68 bags containing poppy husk. Each bag was found to contain 40 Kgs. of poppy husk. The Public Prosecutor was allowed to put leading questions to Sub Inspector Paras Kumar (PW-9). Shri Norang Dass, Naib Tehsildar, Guhla (PW-8) and Shri Om Parkash, DSP (PW-6) also corroborate the version of Randhir Singh, Inspector (PW-10). Shri Norang Dass, Naib Tehsildar (PW-8) is an independent witness and the contraband articles were recovered in his presence from the appellant. Shri Om Parkash, DSP (PW-6) also corroborates the recovery. 15 As already noticed, the proviso to Section 42(c) of the Act is applicable if the officer who is to conduct the raid has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of offender. He may then enter and search any building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. He may then enter and search any building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. In the case in hand, although the recovery has been made between sunset and sunrise but the appellant met the police party outside the house at a distance of 100 yards from his house. This is so mentioned in the statement of Randhir Singh, Inspector (PW-10) and Paras Kumar, Sub Inspector (PW-9). Thereafter on the disclosure statement (Ex.PD) of the appellant, the recovery was effected. It is, therefore, a case of recovery being effected on the disclosure statement (Ex. PD) of the appellant. In the circumstances, the proviso to Section 42(1) of the Act or the provisions of Section 42(2) of the Act are inapplicable in the facts and circumstances of the case. In Krishna Kanwar v. State of Rajasthan (supra) and Rajendra v. State of M.P. (supra), it has been observed by the Honble Supreme Court that under Section 42(1) of the Act the officer concerned is to have reasons to believe from personal knowledge or information which is taken down in writing that any narcotic drug or substance in respect of which an offence punishable under Chapter-IV of the Act has been committed or any article which may furnish evidence of the commission of said offence is kept concealed in any building or conveyance or enclosed space, he may between sunrise and sunset, do the acts enumerated in Clauses (a) to (c) of sub- section (1) of Section 42 of the Act. This would be in the event of a raid being conducted in consequence of personal knowledge or information received. Besides, sub-section (2) of Section 42 of the Act comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter-IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. The concealment in the case in hand though is in a closed place but the recovery has been effected in consequence of the disclosure statement (Ex. PD) of the appellant. Therefore, the proviso to Section 42(1) of the Act and the requirement of Section 42(1) of the Act are inapplicable. are concealed in any building, conveyance or enclosed place. The concealment in the case in hand though is in a closed place but the recovery has been effected in consequence of the disclosure statement (Ex. PD) of the appellant. Therefore, the proviso to Section 42(1) of the Act and the requirement of Section 42(1) of the Act are inapplicable. Even otherwise, the requirement of the proviso to Section 42(1) of the Act is to record the grounds of belief of the officer having personal knowledge or on receiving information regarding concealment of contraband. The information has been recorded by Randhir Singh, Investigating Officer (PW-10) in the memo Ex. PB on the basis of which FIR Ex. PB/1 was registered. Besides, in terms of Section 42(2) of the Act, the grounds for belief recorded in terms of the proviso to Section 42(1) is to be sent forthwith under the provisions before amendment and within seventy-two hours to the immediate official superior in terms of the provisions after amendment. In the case in hand the immediate official superior of Randhir Singh, Inspector (PW-10) is Om Parkash, DSP, Guhla (PW-6) who was present at the spot when in consequence of the disclosure statement of the appellant, the recovery was made. Moreover, after the recovery was effected, if has come in the statement of Randhir Singh, Inspector (PW-10) that he had sent a report Ex. PF in terms of Section 57 of the Act which enjoins that whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. The memo Ex. PF is a report sent to the senior police officials regarding recovery of 68 bags of poppy husk and arrest of the accused. The same was sent on the date of the occurrence, i.e., 8.12.1999 by Randhir Singh, Inspector (PW-10) and was received and forwarded by the Deputy Superintendent of Police, Guhla on 8.12.1999 itself. The same was received by the Superintendent of Police, Kaithal on 8.12.1999. The requirement of sending the information in terms of Section 57 of the Act is directory. The same was sent on the date of the occurrence, i.e., 8.12.1999 by Randhir Singh, Inspector (PW-10) and was received and forwarded by the Deputy Superintendent of Police, Guhla on 8.12.1999 itself. The same was received by the Superintendent of Police, Kaithal on 8.12.1999. The requirement of sending the information in terms of Section 57 of the Act is directory. In Gurbax Singh v. State of Haryana, 2001(1) RCR(Crl.) 702 (SC) : AIR 2001 SC 1002, it was observed that the provisions of Section 52 relating to disposal of persons arrested and articles seized and Section 57 relating to report of arrest and seizure are directory and violation of these provisions would not ipso facto violate the trial or conviction. However, the Investigating Officer is not to totally ignore these provisions and such failure would have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles. Therefore, the memo Ex. PF which Randhir Singh states has been sent in terms of Section 57 of the Act has been sent forthwith and, in any case, is within the period of seventy-two hours provided in terms of Section 42(2) of the Act, whether it is taken before or after amendment. The memo Ex. PF gives the substance of the entire information to the superior police officials and is within seventy-two hours and, in any case, is forthwith in terms of the unamended provisions of Section 42(2) of the Act as the recovery was effected on 8.12.1999, i.e., before the amendment Act come into force. Therefore, the provisions of Section 42(2) of the Act would, in any case, stand substantially complied with. In Sanjay (Sajan ?) Abraham v. State of Kerala (supra), the contention of the appellant therein regarding non-compliance of Section 57 of the Act was considered. It was observed that communication to the immediate superior in the said case had not been made in the form of a report. However, it was found that PW-5 in the said case had sent copies of the FIR and other documents to his superior officer. The other records regarding the arrest of the appellant in the said case and seizure of the contraband articles were sent by PW-5 therein to his superior officer immediately after registering the case. However, it was found that PW-5 in the said case had sent copies of the FIR and other documents to his superior officer. The other records regarding the arrest of the appellant in the said case and seizure of the contraband articles were sent by PW-5 therein to his superior officer immediately after registering the case. It was observed that all the necessary information to be submitted in a report was sent and this constituted substantial compliance and mere absence of any such report could not be said to have prejudiced the accused and that when substantial compliance has been made it would not vitiate the prosecution case. 16. The provisions of Section 42 of the Act are procedural in nature and it is to be ascertained in the facts and circumstances of the case whether these have been conceived in the interest of the accused or in public interest. If these are in the interest of the accused, then it is to be seen whether any prejudice has been caused to him or there has been a waiver on his part. The ultimate test to vitiate the trial is always of prejudice having been caused. In Pipal Singh v. Union of India, 2003(1) RCR(Crl.) 815, a Division Bench of this Court considered the case of recovery of heroin on receipt of secret information in which the information was not reduced in writing and sent to superior officer as required under Section 42 of the Act. The recovery in the said case was from a conveyance, i.e., a truck. It was held that the accused has to prove prejudice to take the benefit of Section 42(1) of the Act. Reliance was placed on the judgment of the Apex Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000(1) RCR(Crl.) 611 (SC), wherein it was held that if officer has reasons to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance is kept or concealed in a building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. However, the action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. However, the action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused. In the case in hand, no prejudice is shown to have caused to the appellant. Even if it is taken that the provisions pf Section 42(1) of the Act regarding the information received have not been complied with. Though as already observed above, the same has been substantially complied with. This is apart from the fact that the immediate official superior of the Investigating Officer Randhir Singh, Inspector (PW- 10) is DSP Shri Om Parkash (PW-6) and he was present at the time of recovery. It is stated by Shri Om Parkash, DSP (PW-6) that on 8.12.1999 at about 4.20 a.m. he received a telephonic message on the basis of which he along with Shri Narang Dass, Naib Tehsildar (PW-8) along with his staff reached at the spot where SHO along with his police party and appellant were found present and the appellant had suffered a disclosure statement Ex. PD. Therefore, necessary intimation in writing was sent forthwith in terms of memo Ex. PF. As such, the contention of the learned counsel for the appellant that the provisions of Section 42 of the Act have not been complied with and that the Investigating Officer has not recorded reasons of belief for conducting the raid are without much substance. 17. Learned counsel for the appellant further in support of his contention of an improper search having been conducted has referred to the case of K.L. Subhayya v. State of Karnataka, AIR 1979 SC 711, which is a case under the Mysore Excise Act. The Inspector, who had searched the car of the accused in the said case, had not made any record of any ground on the basis of which he had reasonable belief that an offence under the Act was being committed before proceeding to search the car. It was held that the provisions of Section 54 of the Mysore Excise Act were not at all complied with and the entire search, therefore, was rendered without jurisdiction. It was held that the provisions of Section 54 of the Mysore Excise Act were not at all complied with and the entire search, therefore, was rendered without jurisdiction. Besides, reference is also made in the case of Chhunna alias Mehtab v. State of M.P., 2003 SCC(Crl.) 1194, wherein search was conducted between sunset and sunrise and the proviso to Section 42(1) of the Act was applicable. It was admitted position in the latter case that before the entry for effecting the search of the building neither any search warrant or authorisation was obtained nor were the ground for possible plea that if opportunity for obtaining search warrant or authorisation was accorded the evidence will escape indicated. This was held to be non-compliance of the provisions of the proviso to Section 42(1) of the Act. 18. In the case in hand, as already noticed, the grounds for belief were recorded in terms of the memo Ex. PB on the basis of which FIR Ex. PB/1 was registered. Besides, the recovery was made in pursuance of the disclosure statement Ex. PD made by the appellant and after recovery, information was sent vide memo Ex. PF to the higher police officials on the same day, i.e., 8.12.1999 which would be an information forthwith and, in any case, within seventy-two hours in case the provisions of Section 42(2) of the Act are applied before or after amendment. Therefore, the judgments in the case of K.L. Subhayya v. State of Karnataka (supra) and Chunna alias Mehtab v. State of M.P. (supra) are inapplicable to the case in hand. 19. Insofar as, the non-compliance of Section 50 of the Act in the context of the judgment of the Honble Supreme Court in the case of Abdul Rahiman v. State of Kerala (supra) is concerned, the provisions of Section 50 of the Act may be noticed which read as under :- "50. Conditions under which search of persons shall be conducted. - (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. - (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." 20. The provisions of sub-section (1) of Section 50 of the Act shows that when any officer duly authorised under Section 42 of the Act is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The emphasis on the words : is about to search "any person". Therefore, it is only when "the person" of an accused is to be searched that he is required to be informed of his right to be examined in the presence of a Gazetted Officer or a Magistrate. The emphasis on the words : is about to search "any person". Therefore, it is only when "the person" of an accused is to be searched that he is required to be informed of his right to be examined in the presence of a Gazetted Officer or a Magistrate. The Honble Supreme Court in Kalema Tumba v. State of Maharashtra and another, 1999(4) RCR(Crl.) 575 (SC) : AIR 2000 SC 402, considered this aspect and it was observed that it is only when a person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a gazetted officer or a magistrate. Besides, it was observed that as rightly pointed out by the High Court search of the baggage of a person is not the same thing as search of the person himself. A reference was made to an earlier judgment of the Honble Supreme Court in State of Punjab v. Baldev Singh (supra), wherein it was held that the requirement of informing the accused about his right under Section 50 of the Act comes into existence only when the person is to be searched. A similar view was taken by the Honble Supreme Court in Gurbax Singh v. State of Haryana (supra). The judgment in Kalema Tumbas case (supra) was reiterated and it was held that only when "the person" of an accused is to be searched that he is required to be informed of his right to be examined in the presence of a gazetted officer or a magistrate. A reference was made to the Constitutional Bench in Baldev Singhs case (supra), wherein it was observed as follows :- "On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc." 21. In Gurbax Singhs case (supra), the appellant therein was sitting in the compartment of a train when the Police officials came for checking smuggling and other anti-social elements. The appellant therein, who was sitting in the compartment became panicky and left the train from the door towards the side of engine carrying a katta (gunny bag) on his left shoulder and on suspicion, he was nabbed. The appellant therein, who was sitting in the compartment became panicky and left the train from the door towards the side of engine carrying a katta (gunny bag) on his left shoulder and on suspicion, he was nabbed. In this context, it was observed that in view of the decision of the Constitutional Bench in Baldev Singhs case (supra), no further discussion was required on this aspect. Therefore, it is evident that the provisions of Section 50 of the Act come into effect when the person of the accused is to be searched. In Abdul Rahimans case (supra) it was held that where the accused was given a chance of search before gazetted officer or senior officer only and not before the magistrate, then the offer is not valid as envisaged under Section 50 of the Act and as such conviction was set aside. It is, however, appropriate to note that the search of the appellant therein was conducted on his person and it was found that inside the fold of Dhoti, which the appellant therein was wearing, opium had been concealed in a polythene bag. Therefore, it was the person of the accused therein who was searched and the contraband was found in the fold of the Dhoti. 22. Learned counsel for the appellant in support of his contention of right of search has referred to the case of Vinod v. State of Maharashtra, 2003(3) RCR(Crl.) 243 (SC). In the said case the accused therein was found in possession of 120 mg. of brown sugar which was also on the person of the accused therein. Therefore, the proposition as enunciated in Vinods case (supra) is applicable in case the person of the accused is to be searched. 23. In the case in hand the recovery is of 68 bags of poppy husk from the house of the appellant and it is not a case of recovery from the person of the accused. Therefore, in view of the judgment of the Honble Supreme Court in Kalema Tumbas case (supra) and Gurbax Singhs case (supra), the person of the accused was not required to be searched. As such the provisions of Section 50 of the Act are inapplicable. 24. Therefore, in view of the judgment of the Honble Supreme Court in Kalema Tumbas case (supra) and Gurbax Singhs case (supra), the person of the accused was not required to be searched. As such the provisions of Section 50 of the Act are inapplicable. 24. In the next to be seen whether the case has been planted on the appellant in view of the specific plea taken by him in his statement under Section 313 Cr.P.C. It is stated by the appellant that he has been involved in the case falsely at the behest of Sukhwinder Singh, Ex-sarpanch of village Daban Kheri. The two brothers, namely, Nishan Singh and Karnail Singh of Ex-Sarpanch Sukhwinder Singh are facing criminal trial for causing gun shot injury to Raghubir Singh, elder brother of the appellant. It is contended by the appellants counsel that the appellant was taken into custody from his house on the night intervening 7/8.12.1999 and that no recovery was effected from him. In this respect the appellant has produced three witnesses in defence. Harbhajan Singh (DW-1) was Sarpanch of Village Daban Kheri in the year 1999. He has stated that he never met the police party nor requested to join the investigation on 8.12.1999 at about 4.00 a.m. Randhir Singh, Telephone Operator, Telephone Exchange, Kaithal (DW-2) has stated that as per the bill record of the Telephone Department, the appellant has been issued a bill on 11.12.2001 which was due upto 7.1.2002. It is stated that the telephone connection has never been disconnected. The telephone was provided on 30.12.1993. It was also stated that inspection was made periodically by the team of the Telephone Department to check whether the telephone holder is bona fide resident of specific house or not. In cross-examination, he stated that he did not know the appellant personally. He never visited the place where telephone has been installed. Kala Singh (DW-3) stated that he is resident of Sanjay Basti, Cheeka for the last ten years. The house of the appellant is adjacent to his house and he was residing in this house prior to his occupying the house in the neighbourhood of the appellant. The family of the appellant is also residing with him and they have no other house, except this. The house of the appellant is adjacent to his house and he was residing in this house prior to his occupying the house in the neighbourhood of the appellant. The family of the appellant is also residing with him and they have no other house, except this. Except for the statement under Section 313 Cr.P.C. alleging the implication of the appellant at the behest of Ex-sarpanch Sukhwinder Singh, there is nothing on record to show that he was instrumental in implicating him. The case of the appellant as per his statement under Section 313 Cr.P.C. is that the police party took him forcibly from Sanjay Basti, Cheeka on the night intervening 7/8.12.1999. However, nothing has been brought on record to show any association or closeness of Ex-sarpanch Sukhwinder Singh with the Police. 25. Randhir Singh (PW-10) was cross-examined in respect of enmity of the appellant with Ex-sarpanch Sukhwinder Singh and he stated that he was not aware that the appellant had enmity with the family of Ex-sarpanch Sukhwinder Singh. Besides, he was also not aware if a case under Section 307 IPC was pending in Court against Ex-sarpanch Sukhwinder Singh in which his brothers Nishan Singh and Karnail Singh had injured Raghubir Singh, the elder brother of the appellant through fire arm. He also denied the suggestion that the appellant was forcibly taken and the case planted at the behest of Ex-sarpanch Sukhwinder Singh and his family members and that no contraband was ever recovered from the possession of the appellant. The contention that Randhir Singh (PW-10) feigns ignorance about the pendency of the criminal case against Ex-sarpanch Sukhwinder Singh and his brothers and, therefore, the case against the appellant is false is devoid of any merit. While appearing in the case it cannot be expected that the SHO would be aware of the case and even if aware would know the relationship of the appellant being the brother of Raghubir Singh who was caused injuries by Nishan Singh and Karnail Singh, the brothers of Ex-sarpanch Sukhwinder Singh. Therefore, this contention is also not of any substance. 26. Paras Kumar, Sub Inspector (PW-9), who was also along with police officials at the time of effecting recovery on the disclosure statement of the appellant was not cross-examined as regards the enmity of the appellant with Ex-sarpanch Sukhwinder Singh. Therefore, this contention is also not of any substance. 26. Paras Kumar, Sub Inspector (PW-9), who was also along with police officials at the time of effecting recovery on the disclosure statement of the appellant was not cross-examined as regards the enmity of the appellant with Ex-sarpanch Sukhwinder Singh. Om Parkash, DSP, Guhla (PW-6) and Norang Dass, Naib Tehsildar (PW-8) have supported the prosecution case. Therefore, the facts and circumstances of the case do not show that the appellant was implicated at the behest of Ex-sarpanch Sukhwinder Singh. 27. The discrepancies raised by the learned counsel for the appellant may be considered. It is contended that the signatures of Harbhajan Singh (DW-1) appear on Ex. PH whereas the statement of Randhir Singh, Inspector (PW-10) states that he refused to join the police party. Therefore, how is it that the person from 14 kilometres away from the place would by chance meet the police party. Ex. PH is the memo of arrest notice under Section 52 of the Act. The signatures of Harbhajan Singh, Sarpanch, Village Daban Kheri (DW-1) are on the said memo. It may be noticed that Harbhajan Singh, Ex-sarpanch (DW-1) in his statement in Court stated that on 8.12.1999 at about 4.15 a.m. the Police party never met him nor requested him to join the investigation party. However, it is the case of the appellant that signatures of Harbhajan Singh are there on the memo Ex. PH which is the arrest memo notice under Section 52 of the Act. Therefore, it appears that Harbhajan Singh (DW-) was present at the time of the arrest of the appellant on 8.12.1999 and he signed the arrest memo notice Ex. PH. However, it appears that later on he backed out. It is in these circumstances that Randhir Singh, Inspector (PW-10) stated that at some distance Harbhajan Singh, Sarpanch of Village Daban Kheri (DW-1) per chance met the Police, who was asked to join the investigation but he expressed his inability to join the investigation. In the circumstances, Harbhajan Singh did indeed meet the police party and he later on backed out and it is for this reason that Randhir Singh, Inspector (PW-10) stated that he refused to join the police party. 28. In the circumstances, Harbhajan Singh did indeed meet the police party and he later on backed out and it is for this reason that Randhir Singh, Inspector (PW-10) stated that he refused to join the police party. 28. It is next contended that there is delay of seven days in sending the sample to chemical examination and there is no mention of deposit of case property on 8.12.1999 at serial No. 8 of the Roznamcha, Ex. DA. Section 52(4) of the Act enjoins that the authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) of Section 52 shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. As already noticed, sections (sic) of the Act have been (sic) the case of Gurbax Singh v. State of Haryana (supra) and violation of these provisions does not ipso facto violate the trial or conviction. The report of arrest and seizure admittedly was made on the date of the occurrence, i.e. on 8.12.1999 in terms of Section 57 of the Act. 29. Randhir Singh, Inspector (PW-10) in his cross-examination has stated that he handed over the report under Section 57 of the Act himself to the DSP at his office and that a record is maintained regarding the receipt of such report in the office of DSP but no such record was produced. Therefore, the articles seized are to be forwarded with all convenient despatch. However, the delay in the circumstances does not show any prejudice having been caused to the appellant. The Chemical Examiners report, Ex. PA identified the sample as poppy straw. As per the said report (Ex. PA) the sample was despatched vide RC No. 331 dated 14.12.1999 through Constable Dalbir Singh, No. 214 and was received in the Laboratory on 14.12.1999. In State of Orissa v. Kanduri Sahoo, 2004(1) RCR(Crl.) 196 (SC) : 2004(1) SCC 337, a delay of four days in sending the sample to the State Drug Testing Research Laboratory was held to be not fatal where the evidence indicated that the sealed articles were kept in proper and safe custody. In State of Orissa v. Kanduri Sahoo, 2004(1) RCR(Crl.) 196 (SC) : 2004(1) SCC 337, a delay of four days in sending the sample to the State Drug Testing Research Laboratory was held to be not fatal where the evidence indicated that the sealed articles were kept in proper and safe custody. Besides, this Court in Shiv Charan Singh v. State of Haryana, 2002(1) RCR(Crl.) 801 (P&H) in a case of recovery of opium where sample had been sent to the Chemical Examiner after 13 days, observed that the seals which are used in sealing the sample received by the Chemical Examiner were intact and tallied with the specimen seals sent along with the sample, no prejudice whatsoever can be said to have resulted to the accused on this count. In the case in hand, it is not the case of the appellant that the seals were not intact. Therefore, the delay of seven days in sending the sample to the Chemical Examiner, in the case in hand, is quite inconsequential and does not show as to whether any prejudice has been caused to the appellant. The entry at serial No. 8 of the Roznamcha Ex. DA reads as under :- "8. Randhir Singh, SI/SHO Self return taking along the accused persons after arresting and consigning of case property 4 Time 12/15 a.m. is entered. I the SI/SHO along with the accompanying officials after departure as per report No. 32 entered in this roznamcha and after patrolling checking of crime and conducting investigation of case No. 142/99 U/s 15/61/85 NDPS Act, Police Station Cheeka have come present from Town Cheeka. During of the above case accused Jaswant Singh alias Jassa son of Udham Singh, Jat Sikh by caste, resident of Daban Kheri presently residing in Sanjay Basti, Cheeka was arrested as per law and was taken along, who was confined in the Police Lock-up after conducting his personal search. Guard in the Police Station has already been deputed. Case property was handed over to MHC Police Station vide memo. The accused shall be produced in the court today." 30. A reading of the above shows that the case property was handed over to M.H.C. Police Station in pursuance of a memo. Therefore, the stand of the learned counsel for the appellant that the case property is not mentioned in Roznmacha at Serial No. 8 is devoid of any merit. 31. A reading of the above shows that the case property was handed over to M.H.C. Police Station in pursuance of a memo. Therefore, the stand of the learned counsel for the appellant that the case property is not mentioned in Roznmacha at Serial No. 8 is devoid of any merit. 31. It is next contended that there is no mention that the case property containing 68 bags and the sample were bearing seals of DSP Om Parkash (PW-6) and Randhir Singh, Investigating Officer (PW-10). Randhir Singh Inspector (PW-10) in his deposition stated that 68 bags, 68 sample parcels, specimen seal impressions, weighing scale and weights were deposited with the MHC with seals intact and the appellant was lodged at the police lock-up and report regarding this was sent under Section 57 of the Act. The report Ex. PF mentions that the bags containing the poppy husk and separate parcels containing poppy husk were sealed with two seals each bearing superscripction of `OP i.e. the seal of Deputy Superintendent of Police, Guhla, Om Parkash (PW-6). Besides, after using his (Randhir Singhs) seal, he handed over the same to Paras Kumar, SI (PW-9) as specimen and the DSP kept his seal after its use with him as specimen. Paras Kumar, SI (PW-9) in his deposition states that out of each bag of poppy husk 250 grams were separated as sample which were converted into separate parcels and were sealed with seals of `RS of Randhir Singh, Investigating Officer (PW-10) and `OP of DSP Om Parkash (PW-6). Seal of `RS was retained by the DSP after its use. Om Parkash, DSP (PW-6) in his deposition also states that out of the bulk of the contraband, 250 grams were separated from each of the bags and the sample parcels and residue case property was converted into separate parcels and were sealed with seal of `RS of the Investigating Officer Randhir Singh (PW-10) and his seal `OP and he retained his seal with him and the seal of `RS was handed over to SI Paras Kumar (PW-9). Besides, he also states that sample seals were prepared and the samples, residue case property along with weighing scale and two weights, i.e., 1 Kg. and 2 Kg. were taken into possession vide memo Ex. PE which was attested by him and other PWs. The case property was Exs. P.1 to P.68, weighing scale Ex. Besides, he also states that sample seals were prepared and the samples, residue case property along with weighing scale and two weights, i.e., 1 Kg. and 2 Kg. were taken into possession vide memo Ex. PE which was attested by him and other PWs. The case property was Exs. P.1 to P.68, weighing scale Ex. P.69, weight of 1 Kg. Ex. P.70 and weight of 2 Kg. Ex. P.71. He also states that Randhir Singh (PW-10) handed over to him the report under Section 57 of the Act which was Ex. PF. To similar effect is the statement of SI Paras Kumar (PW-9) and that of Randhir Singh (PW-10). 32. Norang Dass, Naib Tehsildar (PW-8), though a government official is an independent witness and is not under the influence of Police. He also states that the sample parcels and residue bags were converted into parcels separately and were sealed with the seal of `OP of DSP Om Parkash (PW-6) and `RS of Randhir Singh, Inspector (PW-10). Specimen of the seals were also obtained. There is thus consistent evidence of DSP Om Parkash (PW-6), Randhir Singh, Inspector (PW-10) and Paras Kumar, SI (PW-9), which is corroborated by the independent witness Norang Dass, Naib Tehsildar (PW-8). Therefore, it cannot be said that there is no mention that the samples were bearing seals of DSP Om Parkash (PW-6) and Randhir Singh, Investigating Officer (PW-10). The contention of the learned counsel for the appellant that the case property was not produced before the Illaqa Magistrate is also without merit. As already noticed, Om Parkash, DSP (PW-6) stated that the case property is Exs. P.1 to P.68. Besides, SI Paras Kumar (PW-9) also stated that case property is Exs. P.1 to P.68 and Randhir Singh (PW-10) also stated that the case property is Exs. P.1 to P.68. Therefore, when the case property has been exhibited during trial, the fact that it was not produced before the Illaqa Magistrate is inconsequential. Besides, there is no cross-examination in this regard of these witnesses. Even Norang Dass, Naib Tehsildar (PW-8) stated that the case property is Exs. P.1 to P.68 (bags). A Division Bench of this Court in Tarlochan Singh v. The Assistant Commissioner, Customs, 2003(1) RCR(Crl.) 47 in a case of recovery of 75 Kgs. Besides, there is no cross-examination in this regard of these witnesses. Even Norang Dass, Naib Tehsildar (PW-8) stated that the case property is Exs. P.1 to P.68 (bags). A Division Bench of this Court in Tarlochan Singh v. The Assistant Commissioner, Customs, 2003(1) RCR(Crl.) 47 in a case of recovery of 75 Kgs. of heroin which was not produced in Court at the time of trial and a contention was raised that link evidence was missing held it to be a devoid of any merit. It was observed that it was direct statement of the members of the raiding party that 175 packets contained brownish powder which was heroin. Besides, the samples of the seized contraband were sent to Chemical Examiner who gave the report and declared the contents as heroin and opium. Moreover, PW-13 in the said case had submitted an application to the Magistrate for inspection of the case property and the Magistrate came to his office and inspected the same and himself took one sample of the case property. It had also come in the statement of PW-13 therein that the bulk parcels of heroin were examined by Magistrate at Ludhiana and thereafter the same was destroyed by the Police in his presence and in the presence of Commissioner, Deputy Commissioner and other officials of the Excise Department. In the circumstances, the non-production of case property in the trial, it was observed, would not give rise to an adverse inference against the prosecution. In the case in hand, as already noticed, the case property was produced and exhibited as Exs. P.1 to P.68. Therefore, this contention of the learned counsel for the appellant is also without merit. 33. The other contentions of the learned counsel for the appellant are that no independent witness was joined and that the police party remained at the spot for about seven to eight hours and yet no efforts were made to join any person from the locality. In this respect, it may be noticed that Norang Dass, Naib Tehsildar in the State exercises powers of Assistant Collector 2nd Grade under the Land Revenue Act. The allegation that he was well known to the DSP and was introduced as a convenient witness is without any force. It is highly unexpected that Norang Dass (PW-8) who was working as Naib Tehsildar would act as a convenient witness for the Police. The allegation that he was well known to the DSP and was introduced as a convenient witness is without any force. It is highly unexpected that Norang Dass (PW-8) who was working as Naib Tehsildar would act as a convenient witness for the Police. Besides, there is no motive for the Police to falsely implicate the appellant and there is nothing to show that the appellant would have been implicated on the asking or at the behest of Ex-sarpanch Sukhwinder Singh whom the appellant alleges to be the reason for his false implication. There is nothing on record to connect the police officials with Ex-sarpanch Sukhwinder Singh. The contention of the petitioner that SI Paras Kumar (PW-9) has stated that Sham Sunder, Constable was sent to bring weight and scale but he was not directed by the Investigating Officer to bring some public witnesses to join the investigation also shows the false implication of the appellant, is again without merit as Norang Dass, Naib Tehsildar (PW-8) was an independent witness. Similar would be the position with regard to the contention that there were shops and houses near the place of recovery and no independent witness was joined. The case titled State of Punjab v. Jalaur Singh, 2002(3) RCR(Crl.) 478 (DB) (P&H), relied upon by the learned counsel for the appellant to contend that adverse inference is liable to be drawn where independent witnesses though available were not joined and that provisions of Section 100 Cr.P.C. would apply is, therefore, not applicable to the facts of the case in hand. Learned counsel for the appellant has also placed reliance on Krishan Mohan Singh Dugal v. State of Goa, 1999(4) RCR(Crl.) 619, to contend that in the absence of independent witness the recovery of contraband effected on the disclosure statement of the accused about which the Police already had the information cannot be relied upon. In the said case the recovery was effected from open space and the Police already had information as to where the contraband was concealed and the said place was accessible to all. In the said case the recovery was effected from open space and the Police already had information as to where the contraband was concealed and the said place was accessible to all. The other case relied upon by the learned counsel for the appellant is a decision of this Court in the case of Baba Budh Giri Chela v. State of Haryana, 1996(1) C.C. Cases 173, wherein the appellant in the said case was allegedly found in possession of 500 grams of opium when he was searched on directions of the Deputy Superintendent of Police. No independent witness was joined in the investigation nor examined nor produced. Although, it was observed that the premises of the Truck Union and certain shops existed in the nearby vicinity. The statement of the DSP that the independent person did not join the investigation was held to be vague. Therefore, it is a case confined to its own facts and is not applicable to the case in hand. Rather, in the case of Shiv Charan Singh v. State of Haryana (supra), this Court observed that by now it is well settled that where recovery is supported by the official witnesses only, that per se is no ground to discard their testimonies. The only rule of caution is that their statements should be examined with extra care in order to find out whether they inspire confidence and are worthy of reliance. In the case in hand, as already noticed, the contraband was recovered from the house of the appellant at Professor Colony, Cheeka. Therefore, it is not such a place which was accessible to all. As such the ratio of the judgment referred to by the learned counsel for the appellant is not applicable. Learned counsel for the appellant also cites a Single Bench decision of this Court in Pala Ram v. State of Haryana, 1999(4) RCC 252, wherein the Investigating Officer on receipt of secret information apprehended the accused therein who were sitting on the bags of poppy husk lying in the fields of maize and 104 Bags of poppy husk were recovered. The accused were acquitted as there was no independent witness. It was observed at the very outset that the said case was a spoiled case. It was observed that the investigation did not associate any independent witness at the time of receiving the secret information. The accused were acquitted as there was no independent witness. It was observed at the very outset that the said case was a spoiled case. It was observed that the investigation did not associate any independent witness at the time of receiving the secret information. Besides, a reference was made to two documents which showed that the Investigating Officer had conducted the investigation in a very casual manner. It was observed that the crude facts were that the Investigating Officer did not bother to join any independent witness on receipt of the secret information and he did not try to associate any independent witness before serving the notice. These were held to be vital defects. The same is not the position in the case in hand as Norang Dass, Naib Tehsildar (PW-8) was associated with the recovery proceedings and the recovery was effected in his presence. Besides, efforts were made to join Harbhajan Singh (DW-1) who is the signatory to the arrest memo Ex. PH. Therefore, the ratio of the judgment in Pala Rams case (supra) is not applicable to the facts of the case in hand. 34. The next contention of the learned counsel for the appellant is that statement of Om Parkash, DSP (PW-6) under Section 161 Cr.P.C. was not recorded. In cross-examination Om Parkash, DSP (PW-6) accepts that his statement under Section 161 Cr.P.C. was not recorded by the Investigating Officer. The effect of non-recording of the statement under Section 161 Cr.P.C. is in the circumstances of the case quite inconsequential as it is not in dispute that Om Parkash, DSP (PW-6) was present at the spot and he was part of the police party which had got recovered 68 bags containing poppy husk concealed in a store of the residential house. Besides, Om Parkash, DSP (PW-6) has put his seal of `OP which was retained by him. The statements made during Police investigation are not substantive evidence and such statements can be challenged at the time of examination of the witnesses in Court with reference to the statements made by them during investigation as these are earlier in point of time. In any case, the evidence is to be seen and weighed as actually adduced in Court. Therefore, Om Parkash, DSP (PW-6) having supported the prosecution case and being a witness of the recovery after disclosure statement (Ex. In any case, the evidence is to be seen and weighed as actually adduced in Court. Therefore, Om Parkash, DSP (PW-6) having supported the prosecution case and being a witness of the recovery after disclosure statement (Ex. PD) had been made by the appellant, no material irregularity can be said to have been committed in not recording the statement of Om Parkash, DSP (PW-6) in terms of Section 161 Cr.P.C. The case of Gabbu and others v. State of M.P., 2004(1) RCR(Crl.) 859 (DB) (MP) relied upon by the learned counsel for the appellant to contend that the statement of witness not recorded under Section 161 Cr.P.C. during course of investigation cannot be relied upon is inapplicable to the facts of the present case. In the said case, the conviction of the appellant therein for the offence punishable under Sections 302, 302/34 IPC was based on the statements of prosecution witnesses including one Dinesh (PW-6). The statement of the said witness was not recorded under Section 161 Cr.P.C. during investigation. Therefore, it was observed that the appellants were not aware that on what point and what purpose this witness was cited in the charge-sheet and in Court they were taken by surprise when he was examined as an eye witness. The same is not the position in the case in hand as Om Parkash, DSP (PW-6) has stated that when he reached at the spot the appellant had already suffered his disclosure statement Ex. PD. Therefore, Om Parkash, DSP (PW-6) accompanied the other police party and he put his seal `OP on the sample parcel. Besides, he attested the memo Ex. PE and also the disclosure statement Ex. PD. He also received the memo Ex. PF in terms of Section 57 of the Act which was forwarded by him on the same day. Therefore, it was known to the appellant that Om Parkash (PW-6) was signatory to the said documents and he was to be examined to prove the same. As such, it is not a case where the appellant has been taken by surprise. 35. Learned counsel for the appellant also contends that Om Parkash, DSP (PW- 6) received a message at 4.20 a.m. and he sent a message to Norang Dass, Naib Tehsildar (PW-8) and they both reached at the spot at 4.35 a.m. in a Tata Sumo and thereafter the appellant made disclosure statement. 35. Learned counsel for the appellant also contends that Om Parkash, DSP (PW- 6) received a message at 4.20 a.m. and he sent a message to Norang Dass, Naib Tehsildar (PW-8) and they both reached at the spot at 4.35 a.m. in a Tata Sumo and thereafter the appellant made disclosure statement. Further it is contended that Constable Dharam Pal (PW-5) stated that special report in this case was handed over to him by M.H.C. Ramesh Kumar at 4.50 a.m. on 8.12.1999. It is stated that first he delivered the report to the Illaqa Magistrate within half an hour and within 15 minutes thereafter he reached the residence of DSP, Guhla. The said contention is also without any force as the recovery has been effected during early hours of morning and Ex-constable Dharam Pal (PW-5) stated that he got the special report at 4.50 a.m. is not of much significance. The evidence of Om Parkash, DSP (PW-6), Norang Dass, Naib Tehsildar (PW-8), Paras Kumar, Sub Inspector (PW-9) and Randhir Singh, Inspector (PW-10) is consistent as regards the recovery. The fact that Constable Dharam Pal (PW-5) stated that he was handed over the special report at 4.50 a.m., therefore, in the circumstances is inconsequential and is not such a circumstance which can be taken into account to hold the recovery to be doubtful. 36. The other circumstances to show the false case set-up by the prosecution are that it is highly unexpected that Police would do patrol duty at 4.15 a.m. in the month of December which is the coldest month of the year. It is contended that for normal human being it takes some time to get out of the bed where woollen clothes are to be worn by the body-guards and driver in order to reach the place of occurrence. This, according to the learned counsel, would not take less than 30-40 minutes. As such it is sought to be contended that DSP Om Parmash (PW-6) and Norang Dass, Naib Tehsildar (PW-8) would not have reached the place of occurrence in the early hours of the coldest month of the year and that too in a short while. This, according to the learned counsel, would not take less than 30-40 minutes. As such it is sought to be contended that DSP Om Parmash (PW-6) and Norang Dass, Naib Tehsildar (PW-8) would not have reached the place of occurrence in the early hours of the coldest month of the year and that too in a short while. There can be no general rule as regards the getting out of bed by persons in the month of December and it cannot be said that merely because December happens to be a cold month, DSP Om Parkash (PW-6) and Norang Dass, Naib Tehsildar (PW-8) would not have got out of their beds and reached the spot. The occurrence in the case in hand took place in rural area where people get up early and Police officials and body guards are there even in the early hours. Therefore, merely because it is a cold month, it cannot be said that Om Parkash, DSP (PW-6) and Norang Dass, Naib Tehsildar (PW-8) did not each the place of occurrence or reach late. 37. Another contention that has been raised that there is no mention in the zimnis recorded by the Investigating Officer as to when he received the sealed bags from SI Paras Kumar (PW-9). This is also of not much significance and could not vitiate the trial. The case diaries maintained in terms of Section 172 Cr.P.C. are normally used for assisting the Court in the inquiry and trial and not for other purposes. Besides, there are only notes of secondary evidence. For the foregoing reasons, there is no merit in this appeal and the same is accordingly dismissed.