JUDGMENT 1. - The Special Judge, N.D.P.S. Act Cases, Alwar, Since its judgment and order dated 7th of January, 2002, in Criminal Case No. 5/2000, convicted and sentenced accused-appellant Jharu Khan S/o Sumer Khan, under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the 'NDPS Act') to ten years rigorous imprisonment and a fine of rupees one lac; in default of payment of fine, to further undergo one year's rigorous imprisonment. Being aggrieved with the same, the present appeal has been preferred before this Court under Section 374(2) of the Code of Criminal Procedure. 2. Briefly stated the facts of the case are that PW-1 Triloki Nath, the S.H.O., Police Station Sadar, Alwar, received a secret information from one informer on 7th of August, 2000, at 11.35 AM, that Juharu Khan S/o Sumer Khan Mev, Resident of Ghasoli, Police Station Kishangarhbas, will go on his motorcycle No. RJ-02-4M-5703 of red colour Suzuki MAX-R-100, to supply opium at Alwar. The said information was reduced in writing vide Exhibit P-1 and a copy of the same was forwarded to the Superintendent of Police and an information in this regard was also given to the Circle Officer Shri Ram Murti. He thereafter proceeded in accordance with law in respect of the information received by him, and for that he directed Shri Sanwal Singh, A.S.I., vide Exhibit P-3 to bring two independent witnesses. PW-12 Sanwal Singh brought two independent witnesses, namely, Sheoraj (PW-8) and Tansen (PW-9). Thereafter, as per the information, PW-1 Triloki Nath, caught hold of the accused Juharu Khan and gave him a notice (Exhibit P-4) about his search before the Judicial Magistrate or before any Gazetted Officer. The accused gave his consent (Exhibit P-5) to make his search before the Sub Divisional Magistrate, Alwar. Exhibit P-6 and Exhibit P-7 are the notices under Section 160 Cr.P.C., which were given to independent, witnesses, namely, Sheoraj (PW-8) and Tansen (PW-9), to remain present at the time of search and seizure of the contraband from the possession of the accused. Vide Exhibit P-9, the recovery- memo, PW-1 Triloki Nath recovered contraband i.e. opium, weighing 5 kilogram from the possession of the accused in the presence of witnesses PW-8 Sheoraj, PW-9 Tansen and PW-7 lqbal Khan, the Sub Divisional Magistrate. Two samples of hundred grams each were also taken and sealed and the same were sent for chemical examination. Vide Exhibit P-9, the recovery- memo, PW-1 Triloki Nath recovered contraband i.e. opium, weighing 5 kilogram from the possession of the accused in the presence of witnesses PW-8 Sheoraj, PW-9 Tansen and PW-7 lqbal Khan, the Sub Divisional Magistrate. Two samples of hundred grams each were also taken and sealed and the same were sent for chemical examination. As per the report dated 4th of December, 2000, (Exhibit P-23), given by the State Forensic Science Laboratory, Rajasthan, Jaipur, it was opined that on chemical examination the sample contained in packet (marked 'A') gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 1.90% (One point nine zero percent morphine). 3. After completion of investigation, the police filed a challan against the accused. 4. The learned trial court, vide its order dated 19th of December, 2000, framed charge against the accused- appellant under Section 8/18 of the NDPS Act. The accused denied the charge and claimed to be tried. 5. The prosecution examined 14 witnesses and exhibited 31 documents. Thereafter the statement of the accused was recorded under Section 313 Cr.PC. In defence, the statement of DW-1 Satish Chand Sharma and DW-2 Dr. G.S. Rathore, were recorded. The learned trial court, after hearing the arguments from both the sides and considering the material on the record, convicted and sentenced the accused-appellant, as mentioned above. 6. The learned counsel for the accused-appellant, Shri N.A. Naqvi, argued the case only in respect of various points relating to seal used in the present case and in this connection he contended that the specimen seal, which was used in the case, was sealed vide Exhibit P-13, by PW- 1 Triloki Nath, but the same was not sent to the Forensic Science Laboratory along-with sample of contraband sent for chemical examination. He further contended that the seal which was used and sealed, was not handed-over to an independent person. He also referred to Exhibit P-31, the sample of seal, and contended that it does not bear the signature of accused. His arguments are that the recovery-memo Exhibit P-9 bears the signature of so-called independent witnesses, namely, PW-8 Sheoraj and PW-9 Tansen, but both were declared hostile during the trial. They further stated that their signatures were obtained by the police on blank papers. His arguments are that the recovery-memo Exhibit P-9 bears the signature of so-called independent witnesses, namely, PW-8 Sheoraj and PW-9 Tansen, but both were declared hostile during the trial. They further stated that their signatures were obtained by the police on blank papers. He also contended that chalked-out FIR (Exhibit P.16) shows that PW-14 Ram Murti Joshi was handed-over the investigation of the case after registering the FIR by PW-1 Triloki Nath Sharma, and only thereafter the so-called seal was seized by PW-14 Ram Murti Joshi, vide Exhibit P-31, which does not bear the signature of the accused and Exhibit P-13, whereby seal was handed over to independent person, appears to be a document prepared subsequently as the Investigating Officer in the present case, PW-14 Ram Murti, who alone could prepare the 'fard' sealing the seal and he alone could have handed over the seal to independent person. He, therefore, contended that the statement of both the witnesses, namely, PW-8 Sheoraj and PW-9 Tansen appears to be correct to the extent that their signatures were obtained no blank papers, otherwise Exhibit P-13 could not have been prepared by PW-1 Triloki Nath Sharma after handing-over investigation to Ram Murti Joshi. In this connection he also contended that the difference of colour of contraband, as mentioned in the recovery memo Exhibit P-9 and the FSL report, Exhibit P-23, becomes relevant. In Exhibit P-9 the colour of contraband has been mentioned as black whereas in Exhibit P-23 it has been mentioned as dark-brown. His contention is that from the prosecution evidence it is not established that the contraband which was recovered and the sample, which was taken out of it, was the same, which was sent to the Laboratory for examination. He contended that the link evidence in the present case is missing which creates serious doubt on the prosecution case and the accused is entitled to benefit of doubt and is liable to be acquitted. 7. He further contended that the offence for which the accused was charged was serious one where minimum sentence of ten years imprisonment is prescribed, therefore, it was the duty of the prosecution to take it safeguards in respect of link evidence and to prove the case against the accused beyond all reasonable doubts. 8. In support of his contention, the learned counsel for the accused-appellant has referred to the following decisions : 1. 8. In support of his contention, the learned counsel for the accused-appellant has referred to the following decisions : 1. Ritesh Chakarvarti v. State of Madhya Pradesh, 2006(2) WLC (SC) Cri. 619 : R.C.C. (S.C.) 2006 Page 799 2. State of Rajasthan v. Gurmail Singh, 2005(1) WLC (SC) Cri 518 : AIR 2005 SC 1578 3. Budh Ram v. State of Rajasthan, 2005(2) Cr.L.R. (Raj.) 1571 4. Birma Ram v. State of Rajasthan, 2005(2) Cr.L.R. (Raj.) 1593 5. Girdhari & Others v. State of Rajasthan, 1996 Cr.L.R. (Raj.) 621 6. Gopal Lal v. Union of India, 2006(2) R.C.C. 884 7. Riyaz Mohammad @ Pappu v. State of Rajasthan, 2001(1) R.C.C. 326 . 9. Per contra, the learned Public Prosecutor contended that the arguments advanced on behalf of the accused are not tenable in the facts and circumstances of the present case as well as in the eye of law also. It is contended that there is no lacunae at all in the prosecution case and the link i evidence is available to connect the accused with the crime. It is contended that on receipt of secret information form the informer the contraband opium weighing five kilogram was recovered from the accused and the said recovery is proved beyond all reasonable doubts. It is contended that even if both the witnesses-PW-8 Sheoraj and PW-9 Tansen, have been declared hostile, the recovery of contraband from the possession of the accused-appellant is proved from the statement of PW-1 Triloki Natri Sharma, the S.H.O., as well as PW-7 lqbal Khan, the Sub Divisional Magistrate. It is further contended that the seal, which was used in the case, was sealed and the same was given to independent person and it was also sent with the i sample of contraband to FSL, which is clear from the FSL report (Exhibit P-23), wherein there is reference of receipt of seal. It is further contended that in the present case the search and seizure was made in presence of the Sub Divisional Magistrate, who was Gazetted Officer as well as independent person, therefore no doubt can or should be raised in respect of search and seizure made in the case. So far as difference in colour of contraband, as per the recovery memo and FSL report is concerned, It is contended that it hardly makes any difference. So far as difference in colour of contraband, as per the recovery memo and FSL report is concerned, It is contended that it hardly makes any difference. It is further contended that the learned trial court has considered each and every aspect of the matter and rightly convicted and sentenced the appellant and no interference is called for by this court. 10. In support of her submissions, the learned Public Prosecutor referred to the following decisions : 1. Gordhan Singh v. State of Rajasthan, 2000(2) R.C.C. 1391 2. Ashok Kumar v. State of Haryana, 2000 Cr.L.R. (SC) 150 3. Mushtaq Shah v. State of Rajasthan, 2000 Cr.L.R. (Raj.) 889 . 11. In Ritesh Chakarvarti v. State of Madhya Pradesh (supra), their Lordships of the Hon'ble Supreme Court, in Para 6 of the judgment, held that an offence committed under the NDPS Act is a grave one. Procedural safeguards to the accused provided under a statute require strict compliance. 12. In State of Rajasthan v. Gurmail Singh (Supra), their Lordships of the Hon'ble Supreme Court considered the order of the High Court, acquitting the accused and the reasons given for acquittal in the facts and circumstances of that case, and found that seal used in sealing the sample was not sent alongwith the sample of Excise Laboratory for the purpose of s comparing with the seal appearing on the sample bottles and upheld the order of acquittal passed by the High Court. 13. In Budh Ram v. State of Rajasthan (Supra), a Single Bench of this Court considered various reasons while acquitting the accused including the memo of specimen seal was prepared but this fact was not mentioned in o the recovery-memo and further that no signature of accused on memo, prepared in this regard, was obtained. 14. In Birma Ram v. State of Rajasthan (Supra), a Single Bench of this Court, while acquitting the accused, considered the link evidence, which was missing in that particular case. One of the factor which was considered was that neither the samples nor the recovered contraband material were produced before the Court. 15. 14. In Birma Ram v. State of Rajasthan (Supra), a Single Bench of this Court, while acquitting the accused, considered the link evidence, which was missing in that particular case. One of the factor which was considered was that neither the samples nor the recovered contraband material were produced before the Court. 15. In Girdhari & Others v. State of Rajasthan (Supra), while acquitting the accused, this Court recorded a finding that it is not clear in the facts and circumstances of that case whether the seal impression, if at all received by FSL, Jaipur, was the same as exhibited in Exhibit P-28, or was some other seal impression. 16. In Gopal Lal v. Union of India (Supra) the fact of not handing-over of the seal used in the case to independent witness, was considered in the facts and circumstances of that case and it was held that important link evidence is missing in the case and the accused was acquitted. 17. In Riyaz Mohammad @ Pappu v. State of Rajasthan (Supra), this Court recorded a finding in the facts and circumstances of that particular case that the prosecution failed to establish the seal of samples of the seized smack remained intact from the date of its seizure till it reached FSL, and further the seal was neither handed-over to any respectable person nor affixed on the letter addressed to the FSL and, therefore, the benefit of doubt was given to the accused. 18. In Gordhan Singh v. State of Rajasthan (Supra) this Court in Para No. 10 of the judgment considered that variance of colour of the contraband does not make any difference because recovery of material is established -and after chemical analysis it was found to be opium, therefore, did not interfere in the order of conviction passed by this Court. 19. In Ashok Kumar v. State of Haryana (Supra) the Hon'ble Apex Court held as under : "4. What is contended by the learned counsel for the appellant is . that no independent witness was kept present which the appellant was searched. But that circumstance cannot create any doubt as the appellant was searched in presence of a Magistrate. The Magistrate was examined as a witness and in his cross-examination nothing was brought out on the basis of which it can be said that what he had deposed was not correct. But that circumstance cannot create any doubt as the appellant was searched in presence of a Magistrate. The Magistrate was examined as a witness and in his cross-examination nothing was brought out on the basis of which it can be said that what he had deposed was not correct. Only submission by the learned counsel with the respect to his evidence was that he had not identified the appellant in the Court. He was not able to state that the person present in the dock was the same Ashok Kumar but ASI Maha Singh had identified the appellant. His evidence has been found to be reliable and we find no good reason to differ from that finding. 5............ 6............ 7............ 8............ 9. It was strongly submitted that, as admitted by PW-1, the seals on the packets produced before the Court were very faint and could not be read properly. Thus there be read properly. Thus there was no reliable evidence to prove that the samples seized from the appellant were the same as were examined by the chemical analyzer. There is no substance in this contention. The report of the chemical analyzer clearly establishes that the articles examined by him were the articles connected with this case. Neither the report of the chemical analyzer was challenged nor any application was given for examining him as a witness to establish that the seals on the samples were faint when received by him and it was not possible to say whose seals they were." 20. In Mushtaq Shah v. State of Rajasthan (Supra) this Court held as under : "42. In this respect, it may be stated here that PW 4 Bhagwat Singh took the specimen seal on Ex.P/3, but there is no evidence that its copy has been sent to FSL along with the sample. In my opinion, this lacuna can be termed as mere irregularity, but on this count, whole prosecution case cannot be thrown out, especially when there is a clear cut evidence that seals of the samples remained intact and not tampered with in any manner, as it would be evident from the discussion of evidence just made below." 21. In my opinion, this lacuna can be termed as mere irregularity, but on this count, whole prosecution case cannot be thrown out, especially when there is a clear cut evidence that seals of the samples remained intact and not tampered with in any manner, as it would be evident from the discussion of evidence just made below." 21. I have considered the submissions of learned counsel for both the parties in the light of various citations cited at Bar, as referred above, and also scanned the impugned judgment as well as the record of the trial court. 22. The secret information given by informer was reduced in writing vide Exhibit P-1 by PW-1 Triloki Nath Sharma, the S.H.O., Police Station Sadar, Alwar, and he sent the said information to his superior officer-the Superintendent of Police, Alwar, and also informed his another superior officer i.e. Circle Officer (Rural) -- Shri Ram Murti Joshi on telephone, which is clear from Exhibit P-1, and the statements of PW-1 Triloki Nath Sharma and PW-14 Ram Murti Joshi. PW-1 thereafter directed PW-12 Sanwal Singh to bring two independent witnesses vide letter Exhibit P-3 and in response thereto he brought two witnesses, namely, Sheoraj and Tansen. When the accused was caught hold, the needful required under law was done. The required notice was given to the accused about his right of search before Magistrate or any Gazetted Officer. The accused gave his consent vide Exhibit P-5 to make his search before the Sub Divisional Magistrate, Alwar. The recovery memo of contraband recovered from the possession of the accused was prepared by PW-1 Triloki Nath in presence of PW-8 Sheoraj, PW-9 Tansen and PW-7 lqbal Khan, the S.D.M., Alwar. Two samples weighing hundred grams each were taken and sealed in presence of above witnesses and one sample was sent for examination. Exhibit P-23 is the report of FSL. The packets of sample were sealed which is clear from i the recovery-memo Exhibit P-9. Both the samples were marked with mark 'A' and 'B', respectively. The specimen seat was sealed and it was handed-over to independent person vide Exhibit P-13, which bears the signatures of PW-1, PW-7, PW-8 and PW-9. There is reference in Exhibit P-23, the report of FSL, that the packet marked with 'A' was properly sealed at the time of receipt thereof in FSL bearing impressions which tallied with the specimen seal impression forwarded. There is reference in Exhibit P-23, the report of FSL, that the packet marked with 'A' was properly sealed at the time of receipt thereof in FSL bearing impressions which tallied with the specimen seal impression forwarded. The seals were intact. The report of FSL Exhibit P-23 has not been challenged except that reference of seal was a printed material on the letter, therefore, it should not be believed. However, it Is undisputed that the sample, which was i received at the FSL, was not in any manner tampered with. PW-1 Triloki Nath and PW-7 lqbal Khan, S.D.M., have proved the recovery-memo Exhibit P-9 and Exhibit P-13. PW-1, in his statement, at Page No. 6 thereof, has also stated that the specimen seal was sent to the FSL. As already referred above, there is reference in Exhibit P-23 that packet of sample marked with 'A' was properly sealed and bearing impressions which tallied with specimen seal impression forwarded. The seals were found intact. Although PW-8 Sheoraj and PW-9 Tansen, both, have been declared hostile by the prosecution during their statement in the trial court but they have admitted their signatures on Exhibit P-9 as well as Exhibit P-13, both. Apart from this fact, Exhibit P-9 and Exhibit P-13 are fully proved from the statement of PW-1 as well as PW-7. Therefore, examination of overall prosecution evidence makes it clear that the contention of the learned counsel for the appellant cannot be accepted that the specimen seal was not sent to FSL along with sample sent for chemical examination or it was not handed-over to independent parson. 23. So far as Exhibit P-31 is concerned, although it does not bear the signature of accused but the same is not fatal to the prosecution case in view of the Exhibit P-9 and P-13, which bear the signature of the accused as well as seal used in the case, which have been fully proved by the prosecution evidence, as referred above. The difference of colour of contraband i also immaterial in the facts and circumstances of the present case as it is clearly proved that the contraband was recovered from the accused and the sample thereof was sent to FSL and as per the report of FSL the contraband was found to be opium. The difference of colour of contraband i also immaterial in the facts and circumstances of the present case as it is clearly proved that the contraband was recovered from the accused and the sample thereof was sent to FSL and as per the report of FSL the contraband was found to be opium. The above referred citations relate to facts and circumstances of each case and if the principle of law laid down in the above referred citations, is taken into consideration in the light of facts and circumstances of the present case then I do not find any lacunae in the prosecution evidence. The necessary link evidence in the present case is not missing at all. 24. In view of the above discussion, I do not find any merit in this appeal and the same is accordingly dismissed.Appeal Dismissed. *******