Hon'ble SHARMA, J.—The appellant Patrik Thomas Gairo Malujo filed this appeal against the judgment dated July 17, 2006 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Kota in Sessions Case No. 10 of 2004 convicting and sentencing the accused appellant under Section 8/20 of NDPS Act for 10 years RI with fine of Rs. 1,00,000 in default of payment of fine to suffer one year RI. 2. Brief facts of the case are that on November 14, 2003 at about 9 in the night on reaching 2952 UP Rajdhani- Mumbai Express at Kota Railway Station announcement was made for attending the train, on which Assistant Sub Inspector Kesar Singh and Constable Ram Prasad proceeded to attend the train at platform No. 2. On contacting by GRP staff with TS Rajdhani Express, N. Ramesh in presence of HTC Manoj Verma handed over 3 bags received vide memo A-2 to the staff after taking out the same from PC/2. Constable Ram Prasad opened the 3 bags in presence of HTC for the purpose of depositing the same in LP office then used clothes were found in 2 bags while on opening the third bag there was yellow colour foam on all the 4 sides and on the top also yellow colour foam was found. On removing the foam some used clothes and 35 polythene packets were found. On opening one of the packets black colour substance was found. On smelling it was found to be charas. On this constable Ram Prasad informed telephonically to Police Station Incharge Jagmal Singh. Jagmal Singh, S.I. reached alongwith investigation box and the team at the LP office and the substance found in the bag was checked by the kit and it was ascertained to be Charas. After opening all the 35 packets samples of 30 grams each were prepared and marked as A and B. Remaining charas was packed in the 35 separate packets. All the 3 bags were seized separately. On receipt of above report FIR No. 251/2003 for offence under section 8/20 of NDPS Act was registered and investigation commenced. During the course of investigation the accused appellant along with co-accused John Don Ho were arrested. After completing the investigation the police filed charge sheet No. 76/2004 on 13.5.2004 for offence under Sections 8/20 and 8/29 of the NDPS Act. During the course of investigation the accused appellant along with co-accused John Don Ho were arrested. After completing the investigation the police filed charge sheet No. 76/2004 on 13.5.2004 for offence under Sections 8/20 and 8/29 of the NDPS Act. Charge was framed against the accused appellant for offence under Section 8/20 of the NDPS Act. The accused appellant denied the charge and claimed to be tried. The prosecution produced as many as 29 witnesses along with certain documents in support of its case. The accused was examined under Section 313 Cr.P.C. and he did not produce any witness in his defence and stated the prosecution story to be false. After hearing both the parties, the trial court convicted and sentenced the accused appellant vide judgment and order dated 17.7.2006 for offence under section 8/20 of the NDPS Act as stated above. 3. Mr. Tariq Sayeed, learned counsel appearing for the accused appellant argued that the seizing officer PW.20 Jagmal Singh was not competent to carry out the search and seizure and he was simply sub-inspector and not posted as SHO. SHO Laxmi Narain PW.18 was available in the police station and inspite of this fact seizure was effected by Jagmal Singh and as per Notification issued by the State Government under Section 42 NDPS Act he was incompetent being simply sub inspector. The place where the seizure is effected is not material on the facts and circumstances of the present case as person who is taking steps under NDPS Act must be of and above the rank of Station House Officer (SHO). He placed reliance on Roy V.D. vs. State of Kerala 2000(1) SRJ 169, Bherulal vs. State of Rajasthan 2004(1) Cr.L.R. 612 (Rajasthan), Om Prakash vs. State of Rajasthan 2007(1) Cr.L.R. 448 (Rajasthan) Jaggan Nath vs. State of Rajasthan 1994 Cr.L.R. 709 (Rajasthan), Ram Kumar Singh vs. State of Rajasthan 1994 Cr.L.R. 68 (Rajasthan, Satyanarain and another vs. State of Rajasthan 2000-01 (Supp) Cr.L.R. 88 (Rajasthan) and Mitho Singh vs. State of Rajasthan 1992 Cr.L.R. (Raj. 74. Learned counsel also argued that the trial court ignored the basic facet of criminal trial. The trial Court at the inception of recording of evidence confirmed the fact whether the accused before the court understood the language of the court. 74. Learned counsel also argued that the trial court ignored the basic facet of criminal trial. The trial Court at the inception of recording of evidence confirmed the fact whether the accused before the court understood the language of the court. The evidence recorded by the trial Court was in Hindi language, which was never read over or explained to the accused in English Language. Other argument raised by the counsel for the accused appellant is that the co-accused has been acquitted by the trial Court itself on the same set of documents and witnesses and as per prosecution case he was the main accused as he fill up the reservation slip in the name of himself and appellant. The counsel further averred that the co-accused was caught with contraband in Goa and case of the present appellant is on better footing as all the prosecution witnesses has deposed in their testimony that nothing was recovered from the bags by which appellant can be connected with the alleged contraband. Learned counsel stated that nothing was recovered from the bag like photographs, slip etc. as nothing was sealed on spot except alleged charas. Reliance has been placed on Shanker Lal vs. State of Rajasthan Western Law Cases 2001 Vol. 5 page 581. The learned counsel for the appellant further argued that the there is gross violation of section 55 of the NDPS Act as prosecution failed to establish the fact that the seal was not tampered with as PW.20 Jagmal Singh has deposed in his statement that seal which was used in seizing the contraband has been destroyed on spot but surprisingly same seal has been used on Malkhana register, exhibit P. 40 A and it is highly impossible for human being to use the destroyed article again. Reliance has been placed on Mintu vs. State of Rajasthan Criminal Bail application No. 18 of 2009 in Criminal Appeal No. 22 of 2009. Lastly the learned counsel argued that the prosecution failed to establish the fact of exclusive possession as appellant has not been found with the contraband and contraband was found in the abandoned condition and the appellant never seen with the contraband and bags under seizure at any stage prior to seizure. Lastly the learned counsel argued that the prosecution failed to establish the fact of exclusive possession as appellant has not been found with the contraband and contraband was found in the abandoned condition and the appellant never seen with the contraband and bags under seizure at any stage prior to seizure. Reliance has been placed on 2010(1) SRJ page 86, Om Prakash vs. State of Rajasthan 1996 Cr.L.R. (Supreme Court page 345 and 96 Cr.L.J. 2001 Mohan Alam vs. NCB. 4. The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that Narcotic Substance was recovered from the bag of the accused appellant. The trial court rightly convicted and sentenced the accused appellant. The findings arrived at by the trial court are just and proper. The trial Court critically examined the material available on record and judgment of conviction is based on evidence and the accused appellant has been rightly convicted and sentenced. The learned counsel argued that PW.20 Jagmal Singh, was SHO on that day as the incumbent SHO was on leave and being SHO he registered the FIR and signed or FIR Ex. P.19 at place A to B. He sent the information under Section 57 of the NDPS Act (Ex. P.20) to the Superintendent of Police Railways Ajmer on 15.11.2003 and signed on it at place A to B. The public prosecutor in this manner argued that the accused appellant was rightly convicted and sentenced by the trial Court. He place reliance on Hardip Singh vs. State of Punjab (JT 2008(9) SC 328) of the Apex Court, wherein it has been enunciated by the Apex Court that non-putting of seal by SHO, positive evidence that goods were in safe custody and no tampering took place, held that no prejudice was caused. 5. I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it is necessary to have a look at the relevant provisions of Sections 42, and 43 of the NDPS Act. Section 42 provides:- 42. Power of entry, search, seizure and arrest without warrant or authorisation. 5. I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it is necessary to have a look at the relevant provisions of Sections 42, and 43 of the NDPS Act. Section 42 provides:- 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 or of the Border Security Force 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 had reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic, substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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) 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 Chapter IV relating to such drug or substance; 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 Chapter IV relating to such drug or substance: 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 sun set and sun rise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-sec. (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. Section 43 reads as under: 43. Power of seizure and arrest in public places. Any officer of any of the departments mentioned in section 42 may (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article 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 an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation For the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 6. The Apex Court in Balbir Singh's case (1998) 2 SCC 724 after referring to a number of Judgments, opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. 7. On the basis of the above conclusions of their Lordships of the Supreme Court, it is necessary to have a look at the evidence adduced and documents exhibited before the trial court by the prosecution and it is also necessary to see whether any prejudice was caused to the accused for violation of the provisions of Section 42 NDPS Act or section 55 of the NDPS Act as pointed out by the learned counsel for the appellant. PW.1 Kesar Singh, ASI, GRP Kota stated that he was on duty at Railway Station Kota Platform from 8.00 p.m. on 14.11.2003 with Constable Ram Prasad. At 9.00 p.m. an announcement was made at platform that on duty GRP staff should attend Coach No. A-1 Rajdhani Express 2952. He stated in his statement as under: ^^bl ij esa dksULVscy jkeizlkn dks lkFk ysdj jkt/kkuh ds dksp ,-1 ij igqapkAtgka ij Vªsu lqizhVsUMsV ,u jes'k o fMIVh Vªsu lqizhVsUMsV feysA ftUgksaus crk;k fd jkt/kkuh ,Dlizsl ds isUVªh dkj esa 3 ykokfjl csx iM+s gq, gSaA** PW.1 further stated that thereafter at 9.50 p.m. he along with Jagmal Singh ASI with Head constable reached Parcel Office Kota, where Jagmal Singh SHO, in presence of witness Khemchand Sharma ASI, RPS, and Indresh Kumar, Parcel Clerk checked the big black colour bag, in which he found 35 packets and opening one of them they found black material in it. Thereafter he stated thus: ^^lHkh isdsVksa dks [kksy dj ns[kk]rks mlesa mlh izdkj ds dkys jax ds xk<+s inkFkZ ds VqdM+sa NM+uqek feys] ftuesa gYdk IykLVhd p<+k gqvk FkkA lHkh dks lw?kak] ns[kk rFkk tkapk rks pjl gksuk ik;kA** PW.1 further stated as under: ^^lHkh isdsVksa dk otu djk;k]rks dqy 19 fdyks otu gqvkA fQj lHkh isdsVksa esa ls 30-30 xzke ds nks-nks lsEiy vyx lhy eksgj fd;sA rFkk iSdsVksa dh lhy eksgj dj ekdZ ,] ch] lh] Mh] vafdr fd;s x;sA** This witness admitted preparation of Ex.P.1 in his presence. PW.2 Kunwarpal Singh, Constable stated that on 15.11.2003 he was present at the GRP Police Station Kota. At 10 a.m. as per the information of Ramprasad Constable, Jagmal Singh ASI and Kesar Singh ASI at Plot form No. 1 Railway Station Kota at parcel godown after searching bags seized the contraband. Site map was prepared by Jagmal Singh in his presence. Site map of place is Ex. P.2, which bears his signature. PW.3 Ramprasad, Constable stated about announcement made at platform Kota that GRP staff on duty should reach at Rajdhani Express. He accompanied Kesar Singh, ASI. He stated in his statement thus: ^^,lvkbZ txekyflag dks eSaus crk;k fd tks ;g dkyk cSx gS blesa eknd inkFkZ gksus dh laHkkouk gS esjh lwpuk ij ,lvkbZ txekyflag us ikl esa [kM+s bUnzs'k xxZ o ,lvkbZ [ksepUn vkjih,Q ds lkeus dkys csx dh psu [kksydj ns[kk rks ,d ihys jax dk Qkse yxk gqvk Fkk ftldks gVkdj ns[kk rks [kkdh dyj ds iSdsV Hkjs gq, FksA csx esa lHkh isdsVksa dks ckgj fudkyk rks dqy iSdsV 35 FksA lHkh isdsVksa dks CysM ls dkVdj ns[kk rks dkys jax dh xkM+k inkFkZ tSlh NM+s fudyh ftudh yackbZ djhc lk<+s rhu bap FkhA lHkh NM+ksa ij irys eksetkek IykfLVd fpidh gqbZ Fkh ftudk rksy fd;k x;k rks dqy otu 19 fdyks xzke gqvk o xokgku dks fn[kk;k o lwa?kk;k rks lHkh us pjl gksuk crk;k lHkh isdsVksa ls 30-30 xzke ds nks nks lsEiy fudkys tkdj lQsn jax ds diM+s dh Fksyh esa j[kdj lhy eksgj fd;k x;k ,oa bLrsekyh diM+ksa dks vyx ls QnZ cukdj lhyeksgj fd;k x;k ,oa thvkjih Fkkuk dksVk igqapdj lhy'kqnk isdsVksa dks tek eky[kkuk ,p,e fd;k x;kA** This witness admitted his presence at the time of searching bags and recovery of charas from that bag. PW. 4 Khemchand Sharma, ASI, GRPF, Kota and PW. PW. 4 Khemchand Sharma, ASI, GRPF, Kota and PW. 5 Indresh Kumar Garg, were also the witnesses about the bags recovered by the Police from the A-1 Coach of Rajdhani Express and the same were opened in their presence and the black material found in the bag was kept in two sealed packets of30 gms. each. The packets were sealed in their presence. PW. 6 Vishram Kumar, Constable No. 744 GRP Bharatpur, stated that he accompanied ASI Jagmal Singh and Constable Bajranglal on 19.11.2003 for New Delhi Railway Station. He stated that Jagmal Singh gave in writing to the Chief Reservation Clerk of Foreign Reservation Office New Delhi of Rajdhanni Express dated 14.11.2003. He stated thus: ^^ml rgjhj ds lkFk esa fjtosZ'ku pkVZ fnukad 14-11-2003 dks Hkh is'k fd;k Fkk ,oa mlesa fVfdV ds ih,uvkj ua- fy[ks o nksuksa isalstj isfVªd FkksEl o tku Mksu gks dh fjtoZa'ku Lyhi pkghA rks eq[; fjtosZ'ku DydZ us fjtosZ'ku Lyhi fudkydj nhA ;g Lyhi vaxzsth esa Hkjh gqbZ Fkh ftlesa Vªsu 2952 vi jkt/kkuh ,Dlizsl ubZ fnYyh Vw ckSEcs dk fjtosZ'ku ds fy, Hkjk FkkA ftlesa isfVªd FkksEl o tksu Mksu gks dk uke fy[kk gqvk Fkk ,oa fjtosZ'ku Lyhi esa nks lhV pkgh x;h FkhA** He stated that seizure memo Ex. P. 5 was prepared in his presence wherein he put his signature A to B. PW.7 Dilbahar, Constable stated about the sending of telephone diary with 9 papers to the SRP Ajmer office and after preparing forwarding letter deposited the said papers in the FSL Jaipur and got the receipt Ex.P. 5 which he has deposited in GRP Kota Police Station to the person sitting on Rojnamcha. PW.8 R. Rajpan Nair, was on duty in Pantry Car of Rajdhani Express Delhi to Mumbai. He stated that he heard the announcement that in Two Tier AC Coach on Seat Nos. 13 and 14 three bags in abandoned condition were found and requested the concerned persons to collect the bags. When nobody turned to receive the said bags on objection by other passengers the same were taken to Pantry Car and thereafter handed over at Railway Station Kota to the Police Personnel who were present at the Platform. T.S. of Rajdhani Express handed over the memo with three bags to the police personnel. PW. 9 Balgovind Agrawal, stated about working in Hotel Gold Regency Paharganj Delhi. T.S. of Rajdhani Express handed over the memo with three bags to the police personnel. PW. 9 Balgovind Agrawal, stated about working in Hotel Gold Regency Paharganj Delhi. On 14.11.2003 Patric Maloja stayed in the Hotel. He stated that Ex. P.6 Hotel Register was recovered by the GRP Kota Police. In Register Ex. P. 6 at S.No. 1804 dated 14.11.2003 he made entries regarding Malujo Patric in the Register which is A to B. Prior to it Jon Don was staying in the Hotel. He stayed in the Hotel along the room of Jon Don. Entry regarding Jon Don was made by shift Incharge Mithlesh Kumar. The register Ex. P.6 was seized by seizure memo Ex. P wherein he put his signature A to B. PW.10 N. Ramesh, T.S. Rajdhani Express, stated in his statement as under: ^^dksp ua- ,-2 esa lhV ua- 13 o 14 dh vktw cktw okyh lhVksa ij cSBs ;kf=;ksa us csxks dks gVkus ds fy, dgk FkkA ftl ij eSus vius nks rhu LVkQ okys dks ysdj csxks dks ogka ls gVkdj isVªha dkj esa j[kok fn;k mlds ckn geus Vªsu ds xkMZ ds t;sZ dksVk ds ,l-,l- dks ;g eslst fn;k fd LVs'ku ij iqfyl okys thvkjih o jsyos ds deZpkfj;ksa dks rS;kj j[ksA ;gka ij rhu ykokfj'k csx cjken gq, gS ftudks LVs'ku ij mrkjdj tek djokuk gSA tSls gh dksVk jsyos LVs'ku vk;k ogka ij nks iqfyl okys thvkjih okys o ,d Vh-Vh- vk;k Fkk ftudks geus ,d ysVj cukdj eky lqiqnZdj fn;k FkkA fQj esa ogka ls M;wVh ij viuh xkM+h ds lkFk fudy x;kA** PW.11 Benimadhav, Waiter on duty on 14.11.2003 in Rajdhani Express stated about three bags found in Coach No. A-2 on Seats Nos. 13 and 14 and those three bags were taken to the Pantry Car along with other staff and thereafter he came to know that the said three bags were handed over at Kota Railway Station. PW.12 Manoj Verma HTC, Kota stated that on 14.11.2003 an announ-cement was made at the Platform No. 2 GRP staff and HTC should attend Rajdhani Express. When he reached A-2 Coach, Rajdhanni T.S. informed that on Berth Nos. 13 and 14 unclaimed these three bags were found and the same were handed over to GRP staff and he was present their and thereafter they went to deposit the said bags in the LPO. When he reached A-2 Coach, Rajdhanni T.S. informed that on Berth Nos. 13 and 14 unclaimed these three bags were found and the same were handed over to GRP staff and he was present their and thereafter they went to deposit the said bags in the LPO. At parcel room they searched those begs in presence of PW.4 Khem Chand Sharma and PW.5 Indresh Garg and on search it was found that in one beg of black colour besides some used clothes 35 sealed packets were found which were bars of charas. PW.13 Harish Sethi, who was owner of Hotel Gold Regency in Main Market of Pahadganj stated that Ex. P. 6 Register was seized from them. In the Register at S.No. 1804 in room No. 15 Jon and Patrick stayed on 14.11.2003. Besides Register, copies of bills and C form were also seized. PW.14 Suchindra was declared hostile. But he admitted his signatures on Ex. P. 8 and Ex. P.9. PW.15 Sunder Singh stated that on 15.11.2003 he was posted in security section of SP Office, Kullu. He stated that they are maintaining the record of arrival of Foreign tourist for which they receive C form from them. On 15.11.03 SI came to him and asked about the C forms of Jon Don and Patrick after approval from the higher officers, he handed over the same to them. PW.16 Banwari Lal, Constable stated about bringing Hotel's card, Register of Hotel Gold Regency, Signatures of Patrick, original copy of FIR to SP Ajmer and thereafter started from GRP Kota on 23.3.2004 first for Ajmer and thereafter from SP office after preparing relevant papers for deposit of articles to FSL Jaipur. The articles were deposited on 26.3.2004 and receipt Ex. P. 10 was obtained by him which he deposited with Ninuakhan, Malkhana incharge. PW. 17 Shri Bhim Singh the then Manager of the Marvel Hotel confirmed that the appellant and co-accused stayed in Hotel Marvel Manali in Room No. 15 on 10.11.2003. He also stated that on the basis of passport he filled C form got signatures on those forms which were Ex. P.11 and P. 12. He entered their stay in the Register at page 115 serial No. 568. This entry is Ex. P.13. Bhim Singh identified appellant in the court saying that he stayed in their hotel as stated above. He also stated that on the basis of passport he filled C form got signatures on those forms which were Ex. P.11 and P. 12. He entered their stay in the Register at page 115 serial No. 568. This entry is Ex. P.13. Bhim Singh identified appellant in the court saying that he stayed in their hotel as stated above. PW.18 Laxminarain, SHO GRP stated that in July 2004 he made investigation in the case of FIR No. 251/03. He filed the challan against the accused appellant and co-accused in the court. PW.19 Ajab Singh, Superintendent Northern Railway, New Delhi stated that for PNR No. 2364043077 which was for ticket of Delhi to Mumbai in Rajdhani Express, enquiry was made from him that whether refund of this ticket was obtained or not over which he made entries in the letter that no refund was claimed upto 26.3.2004 on carbon copy of Ex. P. 14, where he puts his note A to B and made his signature C to D and E to F is seal of his post. PW.20 Jagmal Singh, IO, has stated that on 14.11.2003 he was posted as SI. SHO of police station was Laxmi Narain. As Laxmi Narain was out of station he was working as SHO Police Station. On receiving message over announcement he immediately sent Kesar Singh, ASI and Ramprasad constable to attend Rajdhani Express. The information about this was entered in the Rojnamcha which is Ex. P.15 and copy of it is placed on record as Ex. P. 15 A. At 9.15 ASI Kesar Singh informed him at the Police Station that in Rajdhani Express 2952 T.S. and Coach attendant gave three bags for deposit in the LP office to which Ram Prakash Constable was sent to deposit the same. The information about this was recorded in the Rojnamcha in Ex. P. 16 copy of which is Ex. P. 16A. Thereafter at 9.45 Ram Prasad informed that the three bags have been deposited in LP Office and suspected that in one bag there is contraband. The information about this was also recorded in the Rojnamcha in Ex. P. 17 copy of which is Ex. P.17 A. On receiving this information, witness along with Kesar Singh, ASI, HC Narsingh with investigation box leave Police Station for investigation. The information about this was reported in Rojnamcha Ex.P. 18, copy of which is Ex. P. 18A. The information about this was also recorded in the Rojnamcha in Ex. P. 17 copy of which is Ex. P.17 A. On receiving this information, witness along with Kesar Singh, ASI, HC Narsingh with investigation box leave Police Station for investigation. The information about this was reported in Rojnamcha Ex.P. 18, copy of which is Ex. P. 18A. Thereafter they reached LP office Kota where LPO Clerk Indresh Garg, ASI RPF Khemchand Sharma, Cons. Ram Prasad, Manoj Verma TC were present. After checking the three bags found contraband in one bag. Samples of it were taken and thereafter seized articles were handed over by him to Malkhana Incharge and sent information under Section 57 NDPS Act to SP Ajmer vide Ex. P. 20 He further stated that seized samples of charas which were found in the bag were seized vide Ex. P. 1 and the same were sent for chemical examination through PW.28 Ghasiram. The FSL examination report Ex. P. 32 has been produced by prosecution in respect of aforesaid samples in which the result of examination is to the effect that these samples contained charas. The complete investigation was done by him and respective memos were also prepared by him and description about the same were deposed by him in his statement before the court. PW.21 Ratan Chand stated that he was employed as waiter in Hotel Marvel, Manali. His testimony against the appellant is to the effect that the appellant along with the companion stayed in their Hotel. The entry of which was made in the register concerned. He identified the appellant during his statement in the court. PW. 22 Om Prakash who was posted as Cook in Hotel Marvel Manali stated that the police seized Register and other documents from the Hotel vide Ex. P. 24 where he has put his signature at place E to F. The Register was also seized which is Article 19 ad C form book was also seized which is Article 20. PW. 23 Pradeep Kumar, who is shop Keeper in Delhi, was declared hostile. He accepted his statement Ex. P. 30 from portion A to B but refused to gave statement from part C to D. PW. 24 Jai Singh Constable GRP Kota stated that on 15.11.2003 nothing was done in his presence. He accepted that on 1.2.2004 accused appellant was arrested from Mumbai. He accepted his statement Ex. P. 30 from portion A to B but refused to gave statement from part C to D. PW. 24 Jai Singh Constable GRP Kota stated that on 15.11.2003 nothing was done in his presence. He accepted that on 1.2.2004 accused appellant was arrested from Mumbai. Arrest was made by Deputy Superintendent Dharamveer Singh. The arrest memo was prepared in his presence which is Ex. P. 36. One telephone diary was also seized through Ex. P. 37 but he refused to sign on both these documents. PW. 25 Dharamveer Singh, Dy. S.P., GRP Police Ajmer stated about the arrest of accused appellant at Mumbai vide Ex. P. 36 wherein he put his signature A to B and C to D is signature of accused appellant Patrick Mallujo. One telephone diary was also seized vide Ex. P. 37 where he put his signature A to B and C to D is signature of accused appellant. During investigation accused appellant Patrick Mallujo was taken to Manali Hotel Marvel. Site map of Hotel was prepared as Ex. P. 8 were he has put his signature C to D and E to F is signature of accused appellant. Ratanchand identified accused appellant. Identification memo Ex. P. 9 was prepared over which he put his signature C to D and E to F is signature of accused appellant. Accused appellant Patrick Mallujo's specimen signatures were obtained vide Ex. P. 34 wherein C to D signature was put by witness and at place E to F accused appellant put his signature. Patrick Mallujo was also taken to Delhi at the place of shop where from Bag was purchased by him. Ex. P. 38 was site map where A to B is signature of witness and C to D, is signature of Jagmal Singh and E to F signature by accused appellant Patrick Mallujo. In Hotel Gold Regency the accused appellant was identified by Balgovind, where he put his signature E to F and A to B is signature of witness and C to D is signature of accused appellant. Thereafter this witnesses recorded the statements of the witnesses. PW. 26 Bajranglal stated that he accompanied Jagmal Singh, SI to New Delhi, where he has handed over a written request at Foreign Reservation Counter for giving the reservation slip of Rajdhanni Express dated 14.11.2003, over which seizure memo Ex. Thereafter this witnesses recorded the statements of the witnesses. PW. 26 Bajranglal stated that he accompanied Jagmal Singh, SI to New Delhi, where he has handed over a written request at Foreign Reservation Counter for giving the reservation slip of Rajdhanni Express dated 14.11.2003, over which seizure memo Ex. P. 5 was prepared where he has put his signature G to H and Reservation Slip is Ex. P. 23. PW. 27 Ghanshyam Yadav, who was Parishar in Coach of Rajdhani 2952 stated about the unclaimed bags on seat Nos. 13 and 14 in A 2 Coach. Thereafter announcement was made at Kota Railway Station and the bags were handeover after preparing memos. PW. 28 Ghasiram stated that sealed samples were handed over to him on 16.11.2003. The corresponding entry in this respect was made in Register Ex. P. 40. The photocopy of which is Ex. P. 40 A. He stated that he handed over those 35 sealed samples in the office of FSL Jaipur and got its receipt Ex. P. 42 and same was given to malkhana incharge. The corresponding entry of its was also made in Ex. P.40 of portion E to F. PW. 29 Ninua Khan has stated that on 15.11.2003 he was posted as Malkhana Incharge at Police Station GRP Kota. Shri Jagmal Singh handed over to him packets marked to A, A1 to A2 Z1 to and A1 to A2 total 70 packets. He made entry in the Malkhana Register Ex. P. 40 at portion G to H. He also stated that on 16.11.2003 he handed over the seized articles to Ghasilal constable for depositing the articles to FSL Jaipur. PW. 16 Banwari Lal has stated that while posted in GRP Kota he handed over one Register, other papers and specimen signatures sheets to be deposited in FSL Jaipur. As directed he deposited them vide receipt Ex. P. 10 in the office of FSL Jaipur. In the statement under Section 313 Cr.P.C. Accused appellant stated that he is innocent. 8. The documents produced by the prosecution may also be looked into. Ex. P. 1 is seizure memo of unclaimed bag containing charas at Parcel Office Railway Station Kota at 10 p.m. On 14.11.2003, prepared at 1.15 a.m. on 15.11.2003 over which case No. 251/2003 under Section 8/20 NDPS Act was registered by SHO GRPS Kota. Ex. 8. The documents produced by the prosecution may also be looked into. Ex. P. 1 is seizure memo of unclaimed bag containing charas at Parcel Office Railway Station Kota at 10 p.m. On 14.11.2003, prepared at 1.15 a.m. on 15.11.2003 over which case No. 251/2003 under Section 8/20 NDPS Act was registered by SHO GRPS Kota. Ex. P. 2 is site map of opening of unclaimed bags at Parcel Office in presence of Motbirs Kesar Singh and Kunwarpal Singh. Ex. P.3 is also seizure memo of unclaimed bag at parcel office GRP Kota. Ex.P. 4 is also seizure memo of bag opened in presence of Khemchand Sharma and Indresh Garg, wherein Articles 1 to 15 which are Doctor's ship "Dr. Seema Porob", visiting card of Raj Guest House, Maria Lodge, Shiv Lok Tours and Travels, Coloured Passport size two photographs, coloured passport size one photograph, CD Sony title Thai No. 1, CD Sony Title Thai No. 2, Bank Acct. Password secret PIN 0339 (3) Dead customer 46878 People Bank 4031 MBNA Master Card 4107, Mobile Card, and other articles. Ex. P. 5 seizure memo of reservation slip in presence of Vishram Kumar and Bajranglal. Ex. P. 5 receipt from F.S.L., Ex. P. 7 seizure memo of register of Hotel and Guest Registration Card in the presence of Balgovind Agrwal and Gurmit Sud. Ex. P.8 is memo regarding staying of appellant at Hotel Marvel in Manali in the presence of Sujendra Kumar and Sudershan Thakur. Ex. P. 9 Memo of identification of appellant by Sujinder Kumar and Sudershan Thakur. Ex. P. 9 Memo of identification of appellant by Sujinder Kumar and Sudershan Thakur. Ex. P. 10 receipt of FSL of the articles received from Banwari Lal. Ex. P.11 & Ex. P. 11 A of Form C original and photocopy of Hotel Marble in relation to appellant signed by the Manager of the Hotel. Ex. P. 12 & Ex. P. 12 A of Form C original and photocopy of Hotel Marble in relation to co accused John Don Hoe signed by the Manager of the Hotel. Ex. P. 13 A photostat copy of Guest Visitor Registration regarding entry No. 568 of the appellant and co-accused. Ex. Ex. P. 12 & Ex. P. 12 A of Form C original and photocopy of Hotel Marble in relation to co accused John Don Hoe signed by the Manager of the Hotel. Ex. P. 13 A photostat copy of Guest Visitor Registration regarding entry No. 568 of the appellant and co-accused. Ex. P. 14 Carbon copy of letter given to the Manager of International Tourist Bureau Reservation Northern Railway New Delhi dated 26.3.2004, wherein it was written by the railway that on ticket PNR No. 236-4043077 no refund was claimed upto 26.3.2004. Ex. P. 15 A to Ex. P. 18 A are the entries in the Rojnamcha of GRP Kota. Ex. P. 19 is FIR dated 15.11.2003 at 1.30 a.m. Ex. P. 20 is carbon copy of information sent to the Superintendent of Police Railways Ajmer under Section 57 of the NDPS Act. Ex. P. 21 A is the copy of the Rojnamcha dated 15.11.2003 at 1.30 a.m. of the GRP Kota. Ex. P. 22 A is the copy of Rojnamcha dated 15.11.2003 of departure of Constable Babulal for sending information under Section 57 NDPS Act and further return of Constable Babulal at 5.45 a.m. on 17.11.2003. Ex. P. 23 original requisition for reservation/Cancellation for the use of Foreign Tourists. Ex. P.24 seizure memo of receipt book of Shivlok Tour and Traveles. Ex. P. 24 further seizure memo of Hotel Register of Hotel Marble Form C. Ex. P. 25 seizure memo of Form C of appellant. Ex. P. 26 seizure Memo of Form C of co-accused . Ex. P. 27 Original request letter of N. Ramesh T.S. Rajdhani to Dy. SS/KTT. Regarding unclaimed luggage in 2nd AC Coach. Ex. P. 28 and Ex. P. 29 are the Sample Seals. Ex. P. 30 statement of Pradeep Kumar under Section 161 Cr.P.C. regarding purchase of bags by appellant form his shop. Ex. P. 31 report from FSL dated 30.6.2005 Ex. P. 32 report from FSL regarding examination of articles A-1 to Z-1 and AB-1, AC-1, AD-1, AB1, AF-1, AG-1, AH-1, AI-1, and AJ-1 was found to be CHARAS. Ex. P. 33 is also report of FSL. Ex. P. 34 sample signatures of appellant. Ex. P. 35 report under Section 57 NDPS Act sent to SP Railways Ajmer. Ex. P. 36 arrest memo of appellant at Mumbai. Ex. P. 37 seizure memo of telephone diary from the appellant. Ex. Ex. P. 33 is also report of FSL. Ex. P. 34 sample signatures of appellant. Ex. P. 35 report under Section 57 NDPS Act sent to SP Railways Ajmer. Ex. P. 36 arrest memo of appellant at Mumbai. Ex. P. 37 seizure memo of telephone diary from the appellant. Ex. P. 38 place of incident at Pahadganj Ilaqa of Delhi where appellant stayed. Ex. P. 39 identification memo of appellant by Gurmit Sud and Mithilesh Kumar. Ex. P. 40 A is copy of Malkhana register wherein entries relating to deposit of seized material were made. Ex. P.41A is proceeding of rojnamcha dated 16.11.2003. Ex. P. 42 is receipt issued by the FSL dated 18.11.2003. Ex. P.43 A is copy of Rojnamcha dated 21.11.2003. Ex. p. 44 to Ex. P. 52 are the specimen signatures of the accused appellant. 9. I have critically examined the judgment of the trial Court, statements of the prosecution witnesses and the documents exhibited by the prosecution in support of its case. The findings arrived at by the trial Court are not perverse. PW.10 N. Ramesh Train Superintendent Train No. 2952 UP Rajdhani Express and PW.19 Ajab Singh office Superintendent Chief Commercial Manager, NR. New Delhi and Jagmal Singh I.O. stated in their statements that on 14.11.2003 the appellant and co-accused Jon Don got a journey ticket PNR 2364043077 reserved from New Delhi to Bombay vide above train for which reservation slip Ex. P. 23 was submitted by them. The same reservation slip was seized by the Investigating Officer vide Ex. P. 5 but deliberately the appellant and the co-accused have not traveled by that train and put their luggage (three bags) on seat Nos. 13 and 14 in Coach No. A 2 of the Train. It was found by the train staff PW.27 Ghanshyam, PW.8 Rajapan Nayar, and PW. 10 Ramesh and Investigating Officer Jagmal Singh I.O. stated in their statements that on 14.11.2003 the appellant and co-accused Jon Don got a journey ticket PNR 2364043077 reserved from New Delhi to Bombay vide above train for which reservation slip Ex. P. 23 was submitted by them. The same reservation slip was seized by the Investigating Officer vide Ex. P. 5 but deliberately the appellant and the co-accused have not traveled by that train and put their luggage (three bags) on seat Nos. 13 and 14 in Coach No. A 2 of the Train. P. 23 was submitted by them. The same reservation slip was seized by the Investigating Officer vide Ex. P. 5 but deliberately the appellant and the co-accused have not traveled by that train and put their luggage (three bags) on seat Nos. 13 and 14 in Coach No. A 2 of the Train. It was found by the train staff PW.27 Ghanshyam, PW.8 Rajapan Nayar, and PW.10 Ramesh and Investigating Officer Jagmal Singh that the aforesaid three bags which were left by the appellant and co-accused on seat Nos. 13 and 14 in Coach No. A 2 were unattended so during journey upto Kota when those bags were not claimed despite announcement by anyone handed over to pantry car attendant PW.8 R. Rajpan Nayar. When the train reached at Kota station then the train staff informed Railway officers of Kota and GRP personnel Kota about the unclaimed bags found on seat No. 13 and 14 on that GRP Kota with the assistance of Railway Officials PW. 5 Indresh, and PW.12 Manoj Kumar HTC searched those begs in the parcel room in presence of PW.4 Khem Chand Sharma and PW.5 Indresh Garg and on search it was found that in one beg of black colour besides some used clothes 35 sealed packets were therein which were bars of charas were found, the total weight of which was 19 kgs. Jagmal Singh IO also stated that in the presence of PW.4 Khem Chand Sharma and PW.5 Indresh Garg he took two samples of 30 gms. each from each packet, each packet was marked by him A to A Z and a detailed seizure memo was prepared by him and every sample was sealed separately. The seizure memo is Ex. P. 1 which bears the signatures of I.O. Jagmal Singh and Motbir witnesses Shri Indresh Garg and Khem Chand Sharma. In another beg of black colour 12 used clothes were found. This beg was marked and was seized vide memo Ex. P.3 which also bears the signature of said witnesses and I.O. In the third beg on which "Everest" was written besides used clothes one small beg was also found in which following articles were found Art. prescription slip of Dr. Seema Porob of Goa in the name of Mr. Bobonzz Art. 2 and 2 A passport size cloured photo which according to I.O. these photos were of appellant and co-accused. Seema Porob of Goa in the name of Mr. Bobonzz Art. 2 and 2 A passport size cloured photo which according to I.O. these photos were of appellant and co-accused. Another passport size photo Art. 2 mobile chips Art. 4 to 6 visiting cards of Raj Guest House of Manali Art. 7 Visiting cards of Shiv Lok Tours and Travelers, Pahad Ganj New Delhi Art. 8 and visiting cards of Molia lodge. These articles along with the beg were separately seized vide memo Ex. P. 4 which also bears the signature of Investigating Officer Jagmal Singh and Motbir witnesses Shri Indresh Garg and Shri Khemchand Sharma. The seizure proceedings have been corroborated by witnesses PW.1 Keshav Singh, PW.2 Ram Prasad, PW.4 Khem Chand Sharma and PW.5 Indresh Kumar Garg. During investigation as per PW. 20 Jagmal Singh and PW.25 Dharamveer Singh it was found that the appellant and co-accused stayed in Hotel Marvel Manali in Room No. 15 on 10.11.2003 which has been confirmed by PW. 17 Shri Bhim Singh the then Manager of the said Hotel. He also stated that on the basis of passport he filled C form and got signatures on those forms which were Ex. P. 11 and P. 12. He entered their stay in the Register at page 115 serial No. 568. This entry is Ex. P. 13. Bhim Singh identified appellant in the Court saying that he stayed in their hotel as stated above. During investigation it was also revealed that the appellant stayed in Hotel Gold Regency, Pahad Ganaj New Delhi on 14.11.2003 in Room No. 205. The appellant stayed in the said hotel has been proved by the owner PW.13 Harish Sethi and employee PW.9 Bal Govind Agarwal. According to them the entry of stay in the said hotel was made in Register at Serial No. 1804 Ex. P. 26. The investigating officer Jagmal Singh seized the said Register Ex.P. 26 vide memo Ex. P. 7. PW. 15 Sunder Singh stated that on 15.11.2003 he was posted in security section of S.P. Office, Kullu. He stated that they are maintaining the record of arrival of Foreign tourist for which they receive C form from them. Shri Jagmal Singh I.O. collected and seized C forms from aforesaid Sunder Singh. PW.21 Ratan Chand stated that he was employed as waiter in Hotel Marvel, Manali. He stated that they are maintaining the record of arrival of Foreign tourist for which they receive C form from them. Shri Jagmal Singh I.O. collected and seized C forms from aforesaid Sunder Singh. PW.21 Ratan Chand stated that he was employed as waiter in Hotel Marvel, Manali. His Testimony against the appellant is to the effect that the appellant along with the companion stayed in their Hotel. The entry of which was made in the register concerned. He identified the appellant during his statement in the court. According to Jagmal Singh he seized the record vide seizure memo Ex. P. 24 which bears the signature of the witnesses. The seizure memo has also been proved by PW.22 Om Prakash. PW. 25 Dharmveer Singh Dy. S.P. GRP Kota stated that he has also investigated this case and during investigation he arrested the appellant on 1.2.2004 vide memo Ex. P. 36. He has also stated that he seized one Telephone diary and passport from the possession of the appellant vide Ex. P. 37. This statement has been corroborated by PW.24 Jai Singh,. Dharamabeer Singh has also stated that the appellant verified his stay in room No. 15 of Hotel Marvel. The site inspection memo which is Ex. P. 8 which bears signature of the appellant and the appellant was identified by PW. 21Ratan Chand, employee of the said Hotel. Its memo is Ex. P. 9 which also bears the signature of the appellant. According to Dharamveer he has also taken the specimen signatures of the appellant on sheet Ex. 44 to 52 vide Ex. P. 34 which also bears the signature of the appellant. Dharamveer Singh also stated that the appellant along with companion stayed in Hotel Gold Regency. The employee of which Shri Bal Govind Agarwal identified the appellant. PW.20 Jagmal Singh IO has also stated that he registered the FIR Ex. P. 19. Seized articles were handed over by him to Malkhana Incharge and sent information under Section 57 NDPS Act to SP Ajmer vide Ex. P. 20 He further stated that seized samples of charas which were found in the begs seized vide Ex. P. 1 were sent for chemical examination through PW.28 Ghasiram which has been supported by him in his statement. According to him sealed samples were handed over to him on 16.11.2003. The corresponding entry in this respect was made in Register Ex. P. 40. P. 1 were sent for chemical examination through PW.28 Ghasiram which has been supported by him in his statement. According to him sealed samples were handed over to him on 16.11.2003. The corresponding entry in this respect was made in Register Ex. P. 40. The photocopy of which is Ex. P. 40A. He stated that he handed over those 35 sealed samples in the office of FSL Jaipur and got its receipt Ex. P. 42 and same was given to malkhana incharge. The corresponding entry of it was also made in Ex. P. 40 of portion E to F. The FSL examination report Ex. P. 32 has been produced by prosecution in respect of aforesaid samples in which the result of examination is to the effect that these samples contained charas. PW.7 Dilabar stated that while he was posted in GRP Kota he was handed over one telephone diary and other papers which were seized in the case to be deposited in FSL Jaipur. Accordingly he has deposited them vide receipt Ex. P. 5. PW. 29 Ninua Khan has stated that on 15.11.2003 he was posted as Malkhana Incharge at Police Station GRP Kota. Shri Jagmal Singh handed over to him packets marked to A, A1 to A2 Z1 to and A1 to Z 2 total 70 packets. He made entry in the Malkhana Register Ex.P. 40 at portion G to H. He also stated that on 16.11.2003 he handed over the seized articles to Ghasilal constable for depositing the articles to FSL Jaipur. PW. 16 Banwari Lal has stated that while posted in GRP Kota he handed over one Register, other papers and specimen signatures sheets to be deposited in FSL Jaipur. As directed he deposited them vide receipt Ex. P. 10 in the office of FSL Jaipur. The prosecution produced FSL reports P. 31 and P. 33. The result of examination is to the effect that the writings and signatures in Guest Registration Cards No. 7055 and 7056 dated 14.11.2003 reservation slip and entry in Hotel Register page No. 81 dated 14.11.2003 are similar with the specimen hand writing and signatures (A 1 to Z 1) which are specimen signatures of appellant's writing and signatures. The result of examination is to the effect that the writings and signatures in Guest Registration Cards No. 7055 and 7056 dated 14.11.2003 reservation slip and entry in Hotel Register page No. 81 dated 14.11.2003 are similar with the specimen hand writing and signatures (A 1 to Z 1) which are specimen signatures of appellant's writing and signatures. The prosecution has been able to prove the chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and thus in my view the judgment of conviction and sentence passed by the trial Court cannot be said to be perverse. The arguments raised by the learned counsel for the appellant cannot help him for the following reasons: The argument of the learned counsel that the seizing officer PW.20 Jagmal Singh was not competent to carry out the search and seizure and he was simply sub-inspector and not posted as SHO. Shri Jagmal Singh in his statement categorically stated that the SHO Laxmi Narain PW.18 was out of station and hence he was working as SHO on that day and he also registered the FIR and signed it on as SHO. Thus the argument of the learned counsel for the appellant being devoid of merit is rejected. The rulings cited by the learned counsel are not applicable in the instant case. The second argument of the learned counsel that the trial Court at the inception of recording of evidence was to confirm the fact whether the accused before the court understood the language of the court. The gist of the Evidence was made known to the accused in English and questions were put to him by the court while recording his statement under section 313 Cr.P.C. Thus this argument of the learned counsel is also rejected. The argument of the counsel for the accused appellant that the co-accused has been acquitted by the trial Court itself on the same set of documents and witnesses is also of no consequence. The judgment of acquittal is under challenge before this court in the Criminal Special Leave to Appeal No. 397 of 2007 filed by the State of Rajasthan. This court cannot comment on the judgment which is subjudice before this court in the leave to appeal filed by the State of Rajasthan. The judgment of acquittal is under challenge before this court in the Criminal Special Leave to Appeal No. 397 of 2007 filed by the State of Rajasthan. This court cannot comment on the judgment which is subjudice before this court in the leave to appeal filed by the State of Rajasthan. The next argument of learned counsel for the appellant that there is gross violation of section 55 of the NDPS Act as prosecution failed to establish the fact that the seal was not tempered with as PW.20 Jagmal Singh has deposed in his statement that seal which was used in seizing the contraband has been destroyed on spot but surprisingly same seal has been used on Malkhana register, exhibit P. 40 A and it highly impossible for human being to use the destroyed article again. It may be possible that the seal was not destroyed by PW. 20 and the same was again used in Malkhana Register. This is a procedural mistake and the learned counsel has not been able to establish that by affixing same seal any prejudice was caused to the accused appellant. Thus the argument of the learned counsel is rejected. The argument of the learned counsel that the prosecution failed to establish the fact of exclusive possession as appellant has not been found with the contraband and contraband was found in the abandoned condition. Since the prosecution has been able to prove the chain of circumstances as mentioned above, this argument is also devoid of merit and stands rejected. The findings arrived at by the trial court thus cannot be said to be perverse. The prosecution has been able to prove the case beyond reasonable doubt against the accused appellant. It may also be made clear that the compliance of provisions of NDPS Act has also been made fully as is evident from the evidence produced by the prosecution. The trial Court rightly convicted and sentenced the accused appellant. The judgment of conviction and sentence is confirmed. 10. For the foregoing reasons the appeal being devoid of merit stands rejected. The appellant who is in jail shall serve out the remaining sentence as ordered by the trial Court.