JudgmentJudgment Jitendra Chauhan, J. 1. The present appeal is directed against the judgment dated 24.9.2002 and order of conviction and sentence dated 26.9.2002 whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay fine of Rs. 1,20,000/-. In default of payment of fine, the appellant was ordered to further undergo rigorous imprisonment for a period of three years, for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The period of sentence already undergone by the convict in jail during the pendency of trial was set off against the sentence awarded under Section 428 of the Code of Criminal Procedure. 2. The brief facts of the case are reflected in para 2 of the impugned judgment, the relevant portion of which is re-produced as under: "On 30.7.2000 Sub Inspector Shamsher Singh, SHO Police Station Sadar Tohana along with other police employees was present at T-point on the railway station road, Jamalpur Sheikhan near railway crossing in the area of village Jamalpur Sheikhan. In the meanwhile, Awtar Singh son of Rattan Singh, resident of Jamalpur met him. In the meantime, Sardul Singh, the present accused, came from the side of Railway Station, Jamalpur having a black bag in his right hand. On seeing the police party, accused suddenly returned and started walking swiftly. He was apprehended on suspicion by the Investigating Officer. Investigating Officer suspected some narcotic substance in his bag and so, he served notice under Section 50 of the Act giving an option to the accused for his search in the presence of any Magistrate or gazetted officer. Accused Sardul Singh gave reply that he wants his search to be taken in the presence of a gazetted officer. Thereafter, SI Shamsher Singh sent a wireless message to police station Sadar Tohana for sending some gazetted officer at Hisar. Ashok Kumar, DSP Headquarter, Fatehabad reached at the spot. The facts of the case were disclosed to the DSP by the Investigating Officer. The Investigating Officer carried out the search of the accused on the instructions of Ashok Kumar, DSP and on search of the bag, opium kept in the polythene envelop was recovered from his possession. Two samples of 20 grams each were separated and remaining opium came to 7 kgs. and 960 grams on weighing. The Investigating Officer carried out the search of the accused on the instructions of Ashok Kumar, DSP and on search of the bag, opium kept in the polythene envelop was recovered from his possession. Two samples of 20 grams each were separated and remaining opium came to 7 kgs. and 960 grams on weighing. Separate parcels of the sample and remainder were prepared and sealed with the seals bearing impressions SSD and AS. Seal SSD after use was handed over to the DSP by the Investigating Officer. All the parcels of the case property were taken into possession by the Investigating Officer vide recovery memo, Exhibit PD, along with bag. Investigating Officer sent written information, Exhibit PA, to the Police Station, on the basis of which formal FIR Exhibit PA/1 was registered. The samples were sent to FSL Madhuban for analysis which were found to be of opium vide report Exhibit PG." 3. The learned Additional Sessions Judge, Fate-habad vide order dated 10.1.2001 charge-sheeted the accused for the offence punishable under Section 18 of the Act to which the accused pleaded not guilty. 4. In order to establish its case, the prosecution examined Head Constable Sube Singh as PW1, Constable Saim Raj as PW2, Constable Randhir Singh as PW3, Head Constable Jagdish Chander as PW4, SI Shamsher Singh as PW5 and Deputy Superintendent of Police Ashok Kumar as PW6. 5. Head Constable Sube Singh, PW1, proved formal FIR and delivered special reports to the Special Magistrate, Superintendent of Police and Deputy Superintendent of Police through Constable Randhir Singh. He also sent reports to FSL Madhuban. Sub Inspector Shamsher Singh, PW5, Investigating Officer in the present case gave details of the proceedings of personal search of the accused. Deputy Superintendent of Police Ashok Kumar, PW6, supervised the search of the accused. The FSL report was also tendered in evidence. Thereafter, the prosecution closed its evidence. 6. The accused was examined under Section 313 of the Code of Criminal Procedure. He pleaded that he was taken into custody on 29.7.2000 from his Dhani and later on implicated in this false case. The opium was planted upon him. He stated that due to severe fire-arm injury he was not able to hold anything in his right hand. 7. Awtar Singh son of Rattan Singh, a witness to the recovery in the instant case was cited as DW1. The opium was planted upon him. He stated that due to severe fire-arm injury he was not able to hold anything in his right hand. 7. Awtar Singh son of Rattan Singh, a witness to the recovery in the instant case was cited as DW1. Bhupinder Singh son of Pritam Singh appeared as DW2. This witness supported the plea of the accused that he was taken away by the police from his Dhani on 29.7.2000. 8. On behalf of the prosecution, it was contended that on the basis of statements of Head Constable Jagdish Chander, PW4, and SI Shamsher Singh, PW5, the Investigating Officer in the present case, it was proved that 8 kgs. opium was recovered from the possession of accused. This fact was further corroborated from the statement of DSP Ashok Kumar, PW6. Awtar Singh, DW1 was stated to be won over by the accused. There was absolutely no reason to falsely implicate the accused. 9. On behalf of the accused, it was contended that the presence of DSP Ashok Kumar, PW6, was doubtful. As per the entry in the log book, the wireless message was received by him at 9.00 a.m. and he reached the spot at 10.15 a.m., which was not possible keeping in view the distance from Tohana to Fatehabad. SI Shamsher Singh, PW5, stated that the DSP left the spot about 1/2 hour before the conclusion of the investigation which took about 4-1/4 hours. FIR number was not mentioned in the log book. 10. The further submission made was that in view of the statement of Awtar Singh, DW1, who was stated to be the witness to the recovery, the entire prosecution story stands shattered. The seal after use was not handed over to Awtar Singh, DW1, therefore, his presence at the spot was very much doubtful. The mandatory provisions of Section 50 of the Act were not complied with and no independent witness was joined. 11. Apart from this, writing work was done while sitting in the jeep. The discrepancy in the statements of Investigating Officer and the Deputy Superintendent of Police was also pointed out with regard to the preparation of samples. The link evidence in this case was also stated to be missing. 11. Apart from this, writing work was done while sitting in the jeep. The discrepancy in the statements of Investigating Officer and the Deputy Superintendent of Police was also pointed out with regard to the preparation of samples. The link evidence in this case was also stated to be missing. The Deputy Superintendent of Police, Tohana, whose office is located very close to the place of occurrence, was not called at the spot for carrying out the supervision, rather DSP from a distant place Fatehabad was called for the reasons best known to the prosecution. 12. The learned trial Court deserved that it was not mandatory that the gazetted officer summoned to supervise the search must be the gazetted officer having jurisdiction of the area. Moreover, the requirement of summoning the Magistrate or a gazetted officer is essential when Section 50 of the Act comes into effect. In the instant case, the recovery was effected from the bag in possession of the accused. The recovery in the instant case was not from the personal search of the accused. Therefore, provisions of Section 50 of the Act were not applicable. Even if there is some irregularity that officer from the nearest area was not summoned, it does not affect the merits of the case. Moreover, DSP Ashok Kumar, PW5 was not under the influence of SI Shamsher Singh. It was further contended that there was no necessity of entering the FIR number in the log book. It was proved on record that in pursuance of the message sent by the search team, DSP Ashok Kumar visited the spot and supervised the search operation. 13. As regards Awtar Singh, DW1, a witness to the recovery, learned trial Court observed that he was won over by the accused as he was a co-villager of the accused. The seal was handed over to DSP Ashok Kumar, the Investigating Officer. As regards discrepancies, the learned trial Court observed that the same were not found to be material. 14. Aggrieved against the judgment and order passed by the learned trial Court, the accused-appellant filed the present appeal before this Court. The present appeal was admitted on 17.12.2002. 15. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He was taken into custody on 29.7.2000 from his Dhani. 14. Aggrieved against the judgment and order passed by the learned trial Court, the accused-appellant filed the present appeal before this Court. The present appeal was admitted on 17.12.2002. 15. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He was taken into custody on 29.7.2000 from his Dhani. The provisions of Sections 50, 52, 55 and 57 of the Act were not complied with. The presence of DSP Ashok Kumar, PW6, is not proved on record. The Investigating Officer did not hand over the seal to the independent witness Awtar Singh. This goes to prove that the alleged search was nothing else but a concoction enacted to falsely implicate the accused- appellant. 16. The weight of the sample taken was recorded to be 20 grams each. However, as per Exhibit PG, the laboratory recorded the weight of the sample to be 16.63 grams. The link evidence is also stated to be missing. The following discrepancies have been pointed out in the present case: PW4-HC Jagdish Chander PW5 Shamsher Singh, SI PW6 Ashok Kumar, DSP 1 Railway crossing is at a distance of 1/2 km. from village Jamalpur. T- point is at a distance of 2-1/2/3 km. from abadi of village Jamalpur - 2 We came through village Ratta Khera Mamupur, Haderwala & T-point We came through Kindhalwala, Haderwala and reached at the spot at 8.30 a.m. - 3 T-point is at a distance of one killa from the railway crossing T point is at a distance of 1/1-1/2 killa from the railway crossing T-point is at a distance of 2 killas from the railway crossing 4 We reached at T-point at 9 a.m. At 8.30 a.m. - 5 We were standing on the Northern side of T-point. We were standing towards North East side of T-point. Site plan Exhibit PE falsify the whole version. The police party is standing on the south of T-point. 6 Jeep was also parked near us and all the police officials were standing outside the jeep. Only Driver was sitting inside the jeep. 7 Awtar Singh PW had come at T-point from the abadi of the village Jamalpur. Awtar Singh PW came from his Dhani which is situated in the field. 8 We have spotted the accused from a distance of 100 yards. Accused spotted coming from a distance of 55/60 paces. Only Driver was sitting inside the jeep. 7 Awtar Singh PW had come at T-point from the abadi of the village Jamalpur. Awtar Singh PW came from his Dhani which is situated in the field. 8 We have spotted the accused from a distance of 100 yards. Accused spotted coming from a distance of 55/60 paces. 9 Awtar Singh remained at the spot where our jeep was parked along with driver. Awtar Singh also reached at the place of apprehension of the accused., 10 All the police officials along with accused reached near the jeep. All proceedings done at the place of apprehension of the accused. 11 VT message was flashed from our vehicle to P.S.Tohana and they further gave message to DSP Tohana. VT message was sent to DSP through P.S.Sadar Tohana. I received VT message from Control room Fatehabad at about 9 a.m. 12 DSP Ashok Kumar reached at the spot at 10.30 a.m. DSP Fatehabad reached at the spot at 10 a.m. At 10.15 a.m. 13 The bag containing opium was placed on the ground and it remained lying on the ground till the arrival of the DSP. The bag containing the opium was in the hand of accused Sardul Singh till the arrival of the DSP. The accused was still holding bag in his hand when I reached at the spot. 14 The Investigating Officer was having a spring balance in his bag and sample was also separated with the help of spring balance and remainder was also weighed with the spring balance. The scale for weighing the opium was conventional type having pans and one small scale was also in the bag. The sample was separated with small balance. C. Sanjay Singh was sent to bring the weighing material in my presence and returned after 20/30 minutes 15 The sample was separated in a small tin box. The sample was separated in a small plastic container. Tin box, thread and needle were procured from, nearby whereas tin box was with the Investigating Officer. 16 The writing work was done by SI Shamsher Singh while sitting inside the jeep. The writing work partly done by me and partly by Sanjay Singh C. while sitting on a cot which was procured from the nearby Dhani. DSP also remained sitting on a cot. The writing work was done by SI Shamsher Singh while sitting inside the jeep. The writing work partly done by me and partly by Sanjay Singh C. while sitting on a cot which was procured from the nearby Dhani. DSP also remained sitting on a cot. The writing work was done by SI Shamsher Singh while sitting inside the jeep. 17 Ruqa was sent at 12.15 p.m. through C. Sem Raj who left the spot on a / private scooter and returned at the place of occurrence at 2.30 p.m. on a private jeep Constable Sem Raj left the spot with Ruqa at 12.15 p.m. on a bus and arrived at the spot at 2.30 p.m. by bus. The Constable who took the Ruqa had left the spot on foot. 18 It took three hours in completing the writing work at the spot. It took 4-1/2 hours in completing the investigation at the spot. - 19 DSP remained sitting in his jeep through out the proceedings and DSP stayed at the spot for 3 hours and police party and DSP left the spot simultaneously. DSP and driver with staff came down from the jeep and reached near us. DSP left the spot about 1/4 hour earlier to concluding the investigation at the spot. - 20 We reached in Police Station at 3.15 p.m. DSP left us from city Tohana. We reached P.S. at 3.15 p.m. but DSP left us 1/2 hour earlier from the spot. 21 Dhani of accused is visible from T-point which is at a distance of 3/4 km. from T-point. Dhani of the accused is not visible from T-point Jamalpur. The Dhani of the accused is at a distance" of 2 killa from the place of recovery and I had visited the Dhani of the accused on the same day. 17. Learned State counsel argued that the accused-appellant was not known to any member of the search party, therefore, false implication cannot be attributed to the prosecution. As regards the less quantity of sample, it was pointed out that the weighment was done at the road side by the traditional scale, whereas in the lab the weighment was done by the digital scale. Therefore, a small variation is always possible. 18. As regards the conscious possession, it was submitted that contraband was carried out by the accused in the bag, therefore, the provisions of Section 50 of the Act were not applicable in the instant case. Therefore, a small variation is always possible. 18. As regards the conscious possession, it was submitted that contraband was carried out by the accused in the bag, therefore, the provisions of Section 50 of the Act were not applicable in the instant case. As regards calling of DSP from Fatehabad, it was submitted that DSP, Fatehabad was DSP Headquarter, therefore, he was rightly called to supervise the search carried out at the spot. 19. It was further submitted that the seal found on the samples carried with the specimen seal. 20. We have heard learned counsel for the parties and also perused the records. 21. The points for consideration in this case are, the effect of less quantity of sample; ambiguity regarding seal impression and conscious possession. As regards less quantity of sample as noticed by the Forensic Science Laboratory, Haryana, Madhuban, Karnal, Exhibit PG, we feel that search was conducted in the open area. The weighment was by the traditional scale which cannot be as precise as the digital scale kept by the laboratory. In these circumstances, we feel that this would not have any bearing on the case in view of the fact that substance as per FSL report was found to be opium. 22. As regards the false implication, we feel that there is nothing on record which goes to establish that SI Sharnsher Singh, PW5, the Investigating Officer in the present case, was inimical to the appellant and as to why DSP Ashok Kumar, PW6, a gazetted officer, would support a false version concocted by the Investigating Officer. As regards Awtar Singh, DW1, who was a witness to the recovery, we feel that he being acovil- lager has been won over by the accused-appellant, otherwise he admitted his signatures on the notice, Exhibit PC, reply, Exhibit PC/1 and recovery memo, Exhibit PD. Awtar Singh, DW1, never made any complaint to the higher authorities against SI Sharnsher Singh, PW5, for having obtained his signatures on the blank papers. Hence, we feel that if Awtar Singh had not actually witnessed the recovery, there was no compulsion for him to sign various documents during the course of investigation. It is proved that 8 kgs. of opium was recovered from the possession ofthe accused. There is total corroboration in the version of SI Sharnsher Singh, PW5, and Deputy Superintendent of Police Ashok Kumar, PW6. It is proved that 8 kgs. of opium was recovered from the possession ofthe accused. There is total corroboration in the version of SI Sharnsher Singh, PW5, and Deputy Superintendent of Police Ashok Kumar, PW6. As there is no evidence on record that the appellant is known to these witnesses, we decline to acceptthe argument with regard to false implication. Moreover, if the police wanted to falsely implicate the accused-appellant, there was no necessity to implant such a heavy quantity on him. 23. In the circumstances, we feel that the case of prosecution is based on cogent and reliable evidence and the discrepancies pointed out are not substantial and material. 24. The counsel for the appellant submitted that the appellant has already undergone about 9-1/2 years of sentence. There is no earning member in the family of the appellant to support his family consisting of two young daughters, wife and an old and ailing mother. We feel that in the given situation, these are certainly the mitigating factors warranting the modification of the judgment and order passed by the learned trial Court. Honble Supreme Court in Shanti Lal v. State of M.P., 2007(4) RCR(Criminal) 563 : 2007(5) RAJ 467 : 2007(4) RCC 617 has observed in para 27 as under : "The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or otherwise. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power, but the duty of the Court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine." 25. It is, therefore, not only the power, but the duty of the Court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine." 25. In view of the above, the present appeal is dismissed. In view of these mitigating circumstances noticed in para 22, we are inclined to reduce the sentence of the appellant from 12 years rigorous imprisonment to 10 years rigorous imprisonment and fine from Rs. 1,20,000/- is reduced to Rs. 1 lac. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of six months. The order of the learned trial Court is modified to the extent indicated above.