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2005 DIGILAW 74 (HP)

HARPAL SINGH v. STATE OF H. P.

2005-03-30

M.R.VERMA

body2005
JUDGMENT M.R. Verma, J.—This appeal is directed against the judgment dated 1.10,2004, passed by the learned Sessions Judge, Kullu, whereby appellant-accused (hereafter referred to as the accused) had been convicted under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (hereafter referred to as the Act) and has been sentenced to rigorous imprisonment for four years and fine of Rs. 40,000/- and in default of payment of fine to suffer imprisonment for one year. 2. Case of the prosecution against the accused is that on 16.11.2003, SI Daya Sagar (PW-6) alongwith a few other police officials including HC Sandeep Kumar (PW-4) and HHC Amar Singh (PW-5), left Police Station, Banjar towards Fagu Bridge for detection of crime vide Roznamcha report Ext.PW-1/A and on reaching the spot laid a Naka. At about 8 a.m., the accused having a blanket on his person was spotted coming from Banjar side. On seeing the police party, he turned back and started walking briskly. This act on the part of the accused raised suspicion, therefore, the police party overpowered him and enquired about his particulars which he disclosed. Since the place of apprehension of the accused was an isolated place and no independent witness was available, therefore, with a view to take the search of the accused PW-6 associated PW-4 and PW-5 to witness the process of the search. The accused was given option qua his search orally as well as in writing as to whether he wanted to be searched before a Magistrate or Gazetted Officer and the accused opted to be searched by the Police party present on the spot vide Memo. Ext. PW-4/A. PW-6 then gave his personal search vide Ext. PW-4/B and nothing incriminating was found on his person. Thereafter, the search of the accused was conducted which led to the recovery of a polythene bag containing Charas kept in a piece of cloth which the accused was having under his arm-pit. On weighment, the recovered Charas was found 500 grams. Two samples of 25 grams each were separated from the recovered Charas for the purpose of analysis and thereafter the samples and the remaining Charas having been made into separate parcels were sealed with seal T. The NCB form, Ext. On weighment, the recovered Charas was found 500 grams. Two samples of 25 grams each were separated from the recovered Charas for the purpose of analysis and thereafter the samples and the remaining Charas having been made into separate parcels were sealed with seal T. The NCB form, Ext. PW-1/ E in triplicate was prepared and sample Ext.PW-4/D of the seal used for sealing the case property was separately taken and the case property was taken in possession vide seizure Memo. Ext. PW-4/C. A copy of the seizure memo was supplied to the accused Ruka Ext.PW-6/A was prepared and sent to tne Police Station through PW-5 on the basis of which FIR Ext.PW-1/A was registered at Police Station, Banjar. On return to the Police Station, PW-6 deposited the case property with MHC, Chaman Lai (PW-1), who kept the case property in the Malkhana vide entry Ext.PW-1 /D of the Malkhana Register. One sample of Charas alongwith sample seal and NCB form was sent to CTL, Kandaghat through Constable Jia Lai (PW-2) vide RC Ext. PW-l/B. Special report Ext.PW-3/A regarding the case was prepared by PW-6, who personally handed it over to the Additional Superintendent of Police concerned. The Chemical Examiner on analysis of the sample vide his report Ext.PA found it to contain contents of Charas. On completion of the investigation, a charge-sheet was submitted against the accused who came to be tried by the learned Sessions Judge, Kullu on a charge under Section 20 of the Act. 3. To prove the charge against the accused, prosecution examined six witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he denied the proseoution case as a whole and claimed to be innocent and having been falsely implicated in the case. He has further stated that he was taken to the Police Station from the Bus Stand and the ticket and little money in his possession were taken by the police and none was informed of his arrest. The accused, however, did not lead any defence evidence. 4. On appreciation of the evidence on record, the learned Sessions Judge held the accused guilty of the commission of an offence under Section 20 of the Act and accordingly convicted and sentenced him as aforesaid. Hence, this appeal by the accused. 5. The accused, however, did not lead any defence evidence. 4. On appreciation of the evidence on record, the learned Sessions Judge held the accused guilty of the commission of an offence under Section 20 of the Act and accordingly convicted and sentenced him as aforesaid. Hence, this appeal by the accused. 5. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 6. The learned Counsel for the accused assailed the impugned conviction and sentence on the following grounds : (I) that there has been violation of the provisions of Section 50 of the Act; (II) that the seal sample was not sent to the CTL in sealed cover; (III) that the seal used for sealing the case property was not produced at the trial and no reason has been assigned therefor; (IV) that there is no explanation as to how the recovered contraband was weighed; (V) that nothing accept the contraband is shown to have been found with the accused which renders the prosecution version improbable; (VI) that FIR number given in the documents prepared before the recording of FIR shows that these documents were not prepared at the relevant time, therefore, the investigation was not fair; and (VII) that no independent witness was joined in the search and statements of police officials being interested witnesses are unreliable. GROUND NO. I : 7. It was contended by the learned Counsel for the accused that since the Investigating Officer adopted the procedure for personal search of the accused as provided under Section 50 of the Act, thus, it was not a case of chance recovery. Therefore, there should have been strict compliance of the provisions of Section 50 of the Act. It was further contended that the accused no doubt was given the option of being searched either before a Magistrate or a Gazetted Officer as provided under Section 50 of the" Act but was not informed of his right of search before either of them as required by him, therefore, the conviction is vitiated for want of compliance of mandatory provisions of law. To substantiate his contention, the learned Counsel relied on State of Punjab v. Baldev Singh, 1999 (6) SCC 172; K. Mohan v. State of Kerala, 2000 (10) SCC 222 and Vinod Kumar v. State of Maharashtra, 2002 (8) SCC 351. 8. To substantiate his contention, the learned Counsel relied on State of Punjab v. Baldev Singh, 1999 (6) SCC 172; K. Mohan v. State of Kerala, 2000 (10) SCC 222 and Vinod Kumar v. State of Maharashtra, 2002 (8) SCC 351. 8. On the other hand, the learned Deputy Advocate General, submitted that in fact it is a case of chance recovery because there was no prior information with the police that the accused was carrying any narcotic drug or psychotropic substance within the meaning of the Act and it was on the basis of suspicion that the search was carried out, therefore, the search and recovery and the consequential conviction is not vitiated as contended for the accused. To substantiate his contention, the learned Deputy Advocate General relied on Durgo Bai and another v. State of Punjab, 2004 (7) SCC 144. 9. There cannot be any dispute about the proposition that Section 50 of the Act will come into play only if the search to be made pursuant to the provisions of Sections 41, 42 or 43 of the Act. In such a case the Officer is duty bound to comply with the provisions of Section 50 of the Act and non-compliance of such provisions will vitiate the search and recovery and consequentially the conviction. The common ground to enable search of a person under Sections 41 and 42 is that the Officer about to take search must have the reason to believe from personal knowledge or information given by any person and reduced in writing that any person has committed an offence punishable under the Act. 10. In this case the Investigating Officer had neither the prior information nor personal knowledge reduced into writing on the basis of which he believed that the accused had committed an offence punishable under the Act. Thus, the search of the accused in this case is not as a consequence of the provisions of Sections 41 and 42 of the Act. 11. Section 43 of the Act empowers the Authorized Officers to seize the contraband and arrest the offender in public places. However, the requisite condition for such seizure and arrest again is that the Searching Officer must have the reasons to believe that an offence punishable under the Act has been committed. 12. 11. Section 43 of the Act empowers the Authorized Officers to seize the contraband and arrest the offender in public places. However, the requisite condition for such seizure and arrest again is that the Searching Officer must have the reasons to believe that an offence punishable under the Act has been committed. 12. In the case in hand, the prosecution version is that the police party was present on the spot for patrol and detection of offences concerning excise and intoxicating substances. It is neither the prosecution case nor the case of the accused that the police party present on the spot had any prior information that the accused was in possession of some narcotic drug or psychotropic substance within the meaning of the Act. The prosecuton case is that the accused was apprehended on suspicion and it was on the basis of that suspicion that the Investigating Officer decided to take his search as is specifically mentioned in Ruka Ext.PW-1/C. In support PW-6 has specifically stated that it was on the basis of suspicion that the accused was apprehended and searched. PW-6 gave the option to the accused vide Ext. PW-4/A whether he wanted to be searched in the presence of the Magistrate or a Gazetted Officer. Even in Ext.PW-4/A it is not mentioned that the Investigating Officer had reasons to believe that the accused was in possession of any narcotic drug or psychotropic substance within the meaning of the Act. On the contrary, as per the contents of Ext.PW-4/A the Investigating Officer informed the accused that the police had the suspicion that the accused was in possession of intoxicating substance. Thus, even the option given to the accused for his search before a Magistrate or a Gazetted Officer was based on suspicion and the record nowhere reflects that it was based on the reasons to believe that the accused had committed an offence under the Act. 13. "Belief" and "suspicion" are two different stages of mind and cannot be treated at par. Since no special meaning has been assigned to the expression "belief" under the Act, therefore, it has to be understood in its ordinary sense which means conviction of the truth of anything, faith, confidence or trust in the existence or non-existence of a certain thing whereas "suspicion" is imagining of something without evidence or on slender evidence. Since no special meaning has been assigned to the expression "belief" under the Act, therefore, it has to be understood in its ordinary sense which means conviction of the truth of anything, faith, confidence or trust in the existence or non-existence of a certain thing whereas "suspicion" is imagining of something without evidence or on slender evidence. Thus, keeping in view the different connotations of these expressions it cannot be said that for the purposes of Section 50 both these expressions must be treated at par. Therefore, if a Police Officer on patrol or crime detection duty suspects a person of the commission of a crime concerning intoxicants he can not be said to have the reasons to believe that an offence under the Act has been committed so as to attract the provisions of Section 50 of the Act. 14. In any case, the accused was given the option whether he wanted to be searched before a Magistrate or a Gazetted Officer and the accused opted for being searched by the Police. Admittedly, he was not informed in so many words that he had a right of being searched in the presence of a Magistrate or a Gazetted Officer. 15. In Baldev Singhs case (supra), the Apex Court held as under : "However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the Section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible.....it cannot be disregarded by the prosecution except at its own peril." It was, however, also held : "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. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." 16. It is evident from the above quoted paras of the judgment as relied upon by the learned Counsel for the accused that compliance of the provisions of Section 50 of the Act will be necessary when the search is conducted pursuant to the provisions of Sections 41, 42 or 43 of the Act. It is clear in view of the observations made in para-13 of the judgment that the provisions of this Section will not apply to a search made during the normal course of investigation into a suspected offence and wherein on search based on suspicion the contraband under the Act is recovered. 17. In K. Mohans and Vinods cases (supra), the view that the accused must be informed of his right to be searched before a Magistrate or a Gazetted Officer and he cannot be just given the option whether he wanted to be searched before any one of them cannot mean that the accused was made aware of his right which flows from Section 50 of the Act. However, it cannot be gathered from a perusal of these judgments that these were the cases where the search was carried out on the basis of suspicion and not on the basis of prior information and belief as contemplated under Sections 41, 42 and 43 of the Act. 18. In Durgo Bai and another v. State of Punjab, (2004) 7 SCC 144, the Apex Court while dealing with the applicability of Section 50 to a search under the Act, held as under : "8. The next argument is that Section 50 has been violated inasmuch as search was done without adhering to the conditions laid down in the Section. This is again based on the premise that the police officials concerned must be presumed to have acted on the basis of definite prior information. Once this assumption is held to be wrong, the ratio of the decision in State of Punjab v. Balbir Singh, gets attracted. The legal position has been clarified thus : (SCC pp. 308-09, para 5) "But when a police officer carrying on the investigation including search, seizure or arrest empowered under the provisions of CrPC comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. The legal position has been clarified thus : (SCC pp. 308-09, para 5) "But when a police officer carrying on the investigation including search, seizure or arrest empowered under the provisions of CrPC comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then, he must follow thereafter the provisions of the NDPS Act and continue the investigation as provided there under. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. But at this stage the question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a Gazetted Officer and taking to Gazetted Officer thus would not arise because by then search would have been over. As laid down in Section 50 the steps contemplated there under, namely informing and taking him to the Gazetted Officer should be done before the search. When the search is already over in the usual course of investigation under the provisions of CrPC then question of complying with Section 50 would not arise." 9. It was noted in the beginning of the same paragraph that in the cases before the Court, the police officers did not proceed to act under the provisions of the NDPS Act after having necessary information or after entertaining reasonable belief as envisaged by Section 42. It was again emphasised in paragraph 25 that if there is a chance recovery of narcotic drug or psychotropic substance during a search in exercise of the power under the provisions of CrPC, the compliance with Section 50 does not arise. However, the empowered officer should, from that stage, proceed to carry out the investigation in accordance with the other provisions of NDPS Act. 10. The interpretation of Section 50 and the effect of failure to observe the safeguards enshrined in Section 50 came up for consideration before a Constitution Bench of this Court in State of Punjab v. Baldev Singh. However, the empowered officer should, from that stage, proceed to carry out the investigation in accordance with the other provisions of NDPS Act. 10. The interpretation of Section 50 and the effect of failure to observe the safeguards enshrined in Section 50 came up for consideration before a Constitution Bench of this Court in State of Punjab v. Baldev Singh. The learned Judges, after referring extensively to the exposition of law in Balbir Singh case remarked that none of the decisions of this Court after Balbir Singh have departed from that opinion. Though the question of applicability of Section 50 in the context of chance recovery did not directly fall for consideration in the said case, the legal position in this regard clarified in Balbir Singh case was reiterated by A.S. Anand, C.J., speaking for the Constitution Bench. The proposition was thus laid down in para 12 : (SCC p. 190) "12. 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. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." 19. It is evident from the above case law that for attracting provisions of Section 50 of the Act to conduct a search of the "suspect, the searching officer must on information or personal knowledge have the belief that the person to be searched is in possession of some narcotic drug or psychotropic substance. His mere suspicion that the person to be searched may be in possession of some contraband is not enough to attract the provisions of Section 50 of the Act. Thus, the act of PW-6 giving option to the accused of being searched before a Gazetted Officer or a Magistrate is only an act of extra caution. 20. Even if it is assumed that in the facts and circumstances of the case compliance of provisions of Section 50 of the Act was required, the same was done vide Ext.PW-4/A. 21. Thus, the act of PW-6 giving option to the accused of being searched before a Gazetted Officer or a Magistrate is only an act of extra caution. 20. Even if it is assumed that in the facts and circumstances of the case compliance of provisions of Section 50 of the Act was required, the same was done vide Ext.PW-4/A. 21. It is implicit in the language of Section 50 of the Act that before the suspect gives his option for search, he should be made aware that he can opt to be searched before a Magistrate or a Gazetted Officer. Once he is so informed, whether orally or in writing, and opts to be searched by the Officer giving option, the requirement of Section 50 shall stand complied with. It is so because law does not provide any special form of enlightening the accused of his right to be taken to a Magistrate or a Gazetted Officer for search but from the totality of evidence in this regard it must clearly emerge that the accused voluntarily and of his free will did not desire to be taken to the Magistrate or the Gazetted Officer but willingly opted for search by the Officer giving him the option. 22. In Hira Giri alias Hardev Giri v. State of Himachal Pradesh, 2004 (1) SLJ 805, while dealing with the subject in hand a Division Bench of this Court held as under : "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 assertain 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." 23. In the case in hand the accused was given the option vide Ext.PW-4/A in the following terms : "NIMANLIKHIT GAWAHON KE SAMNE MAIN S.L/SHO DAYA SAGAR THANA BANJAR, ZILA KULLU H.P. AAP HARPAL SINGH S/0 SHAYOCHAND JAAT JAT R/O GAMV VIJWASAN DAKGHAR VIJWASAN THE. VA THANA KAPASEDA NAIDILLIKO SOOCHIT KARTA HOON KI POLICE KO SANDEH HAI KI AAPKE PAAS MADAK PATHARTH HONE KEE SAMBHAVNA HAI. VA THANA KAPASEDA NAIDILLIKO SOOCHIT KARTA HOON KI POLICE KO SANDEH HAI KI AAPKE PAAS MADAK PATHARTH HONE KEE SAMBHAVNA HAI. JIS BARA AAP KI JAMATALASHI KI JAANI HAI AAP LIKHIT VA MAUKHIK ROOP MEN BATLAYEN KI AAP APNI JAMATALASHI KISI MAGISTRATE YAA SAKSHAM RAJPATRIT ADHIKARI KE SAME DENA CHAHTA HAL AAP IS BARA APNI SEHMATI PRAKAT KAREN." 24. The accused gave his option of being searched as follows: "Main apni talashi hazar police ko dena chahta hoon." 25. It is evident from the above that the accused was given the option of being searched before a Magistrate or a Gazetted Officer but he opted to be searched by the police present on the spot. PW-6 in this regard has stated that the accused was informed under Section 50 of the Act "that he can opt for his personal search before Magistrate or before competent Gazetted Officer. The accused declined for his search before Magistrate or Gazetted Officer and opted to be searched by the present police. Ext.PW-4/A is the consent memo and the accused wrote down consent Mark A on Ext.PW-4/A". PW-4 and PW-5 have corroborated-this version of FW-6. In view of this evidence read with Ext.PW-4/A the provisions of Section 50 of the Act stood complied with. For the aforesaid reasons the contention raised for the accused cannot be sustained, GROUND NO. II : 26. It was contended by the learned Counsel for the accused that the specimen seal was not sent to the CTL in a sealed cover. The basis for this contention is not any admission by any one of the material witnesses in this regard but is the statement of PW-2 who has stated that sample seal which was on a cloth piece amongst other articles was handed over to him for delivery in CTL. This statement cannot be read to mean that the case property including seal sample handed over to PW-2 were not properly packed nor such suggestion was even put to the material witnesses. The contention raised, therefore, is without any merit and substance. GROUND NO. Ill : 27. It was contended by the learned Counsel for the accused^ that the seal used for sealing the case property has not been produced which creates doubt about the case of the prosecution. 28. The contention raised, therefore, is without any merit and substance. GROUND NO. Ill : 27. It was contended by the learned Counsel for the accused^ that the seal used for sealing the case property has not been produced which creates doubt about the case of the prosecution. 28. It is case of the prosecution that the seal used for sealing the samples and bulk Charas was handed over to PW-4 who has stated so. Such seal admittedly had not been produced at the trial. PW-4 has explained that he had lost the seal but he did not report the loss of seal to the police. Mere non-production of the seal used for sealing the case property is not fatal to the prosecution case primarily for the reason that non-production has been explained on the ground of having been lost, and secondly it is not requirement of law that seal used for sealing the case property must be produced at the trial. 29. In Him Giris case (supra), while dealing with the effect of non-production of a seal used for sealing the case property it was held as under : "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.P., 2202 Cr.LJ. 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 J:he samples have not been produced at the trial. 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 J:he 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 sale 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.P., 2001 (2) Cr.LJ (HP) 106; Soni v. State of H.P, Cr.A. No. 182 of 2001, decided on 11.6.2003 and 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 record, the non-production of the seals or the specimen impressions thereof in this case is inconsequential and of no help to the accused." 30. In view of the statements of PW-1, PW-2, PW-6 read with copy of Road Certificate Ext. PW-2/A, copy of entries in Malkhana Register Ext.PW-1/A and the Certificate of Chemical Examiner Ext.PA, it is fully and firmly established that the case property including samples at every stage remained in safe custody and any tampering with it is ruled out. Therefore, keeping in view the above settled position in law, the non-production of the seal has no adverse effect on the case of the prosecution. Therefore, keeping in view the above settled position in law, the non-production of the seal has no adverse effect on the case of the prosecution. GROUND NO. IV : 31. It is case of the prosecution vide recovery memo Ext.PW-4/C that the recovered Charas was weighed at the spot by the scale etc. available with the police. PW-4, PW-5 and PW-6 have stated that the recovered Charas was weighed after recovery. PW-4 has further stated that weighment was done with a traditional scale. The statements of these witnesses and the contents of the recovery memo regarding weighment of the recovered Charas has not been challenged by any suggestion to the contrary having been put to these witnesses in their cross-examination, thus the prosecution evidence in this regard remained unchallenged. Therefore, the contention now raised in this regard is just an afterthought without any merit and substance. GROUND NO. V : 32. It was contended by the learned Counsel for the accused that nothing accept the contraband was recovered from the possession of the accused which is improbable because accused cannot be expected traveling without money, ticket and some luggage. 33. The learned Deputy Advocate General while rebutting the contention submitted that on search of the accused before arrest some articles including cash was recovered vide a separate Memo. Since articles etc. so recovered were personal property of the accused, therefore, search and seizure memo did not form part of the charge-sheet nor such articles were forwarded to the Court because those were considered to having no probative value or concern with the case. 34. The contention for the accused is not based on anything suggested to the PWs or stated in his statement under Section 313 of the Code of Criminal Procedure. If non-incriminating article or some money belonging to the accused was found on his person on his search at the time of arrest that has no relevance as evidence in the case and the same was not required to be proved/produced at the trial. It may be pointed out that it is not the case of prosecution that the accused was not in possession of any personal non-incriminating article. On the contrary, the police record reveals that on pre-arrest personal search of the accused a copy of recovery memo of Charas (given to the accused on preparation of recovery memo), one watch, belt and currency notes worth Rs. On the contrary, the police record reveals that on pre-arrest personal search of the accused a copy of recovery memo of Charas (given to the accused on preparation of recovery memo), one watch, belt and currency notes worth Rs. 634/- were found on his person and a memo thereof was duly prepared on the spot. The contention raised for the accused is thus of no help to him. GROUND NO. VI : 35. It was contended by the learned Counsel for the accused that all the documents prepared on the spot before registration of case bear FIR number which was not available at the alleged time of preparing such documents, therefore, the mentioning of FIR number on these documents is indicative of the fact that these documents were not prepared on the spot but were so prepared at the leisure and pleasure of the police. Therefore, investigation in the case was not fair and on this ground benefit of doubt may be given to the accused. 36. The submission is unfounded and unsustainable. PW-6 who prepared the documents Exts. PW-4/A, PW-4/B, PW-4/C, PW-4/D and partly Ext. PW-l/E on the spot has specifically stated that he prepared these documents and when constable Amar Singh (PW-5) came back from the Police Station to the place of occurrence with case file he recorded his statement and also recorded FIR number in the head-notes of the documents. PW-5 has stated that he took Ruka to the Police Station where after registration of FIR case file was given to him and he took the file to the spot and handed it over to SHO (PW-6). There is nothing on the record to disbelieve these statements which clearly establish that Peshani (head-notes) of the documents which include FIR number were filled in by PW-6 when the case file which contained FIR number of the case was received by him on the spot. The contention, thus, is liable to be rejected being without merit. GROUND NO. VII : 37. It was contended by the learned Counsel for the accused that police had not associated independent witnesses in the search, therefore, the search and recovery are vitiated and the conviction is rendered illegal. 38. The case of the prosecution regarding search and recovery is fully supported by the evidence of PW-6 who conducted the search and recovered the Charas vide Memo. 38. The case of the prosecution regarding search and recovery is fully supported by the evidence of PW-6 who conducted the search and recovered the Charas vide Memo. Ext.PW-4/C. His statement is corroborated on all material particulars by PW-4 and PW-5 who witnessed the search of the accused, recovery of Charas, sampling and seizure thereof. No doubt PW-4 and PW-5 witness(s) or the case solely resting on testimony of police officials has no adverse bearing on the merits of the prosecution case. 39. The evidence led by the prosecution to prove the apprehension of the accused his search, recovery, sampling and seizure of Charas and its safe custody is cogent, reliable and confidence inspiring. As per the opinion of the Chemical Examiner Ext.PA and the unshattered link evidence, the charge against the accused is proved beyond any reasonable doubt. Therefore, the impugned conviction and sentence do not call for any interference. 40. As a result this appeal merits dismissal and is accordingly dismissed. 41. The accused, who is in jail, is represented by a Counsel provided by the High Court Legal Service Committee, therefore, a copy of this judgment be sent to him through the Superintendent of the concerned jail. Appeal dismissed.