JUDGMENT Hon'ble Dr. GOMBER, J.—Accused-appellant Shyam Kumar has preferred this appeal against the judgment of conviction and order of sentence dated 23.12.2003 passed by learned Special Judge, Narcotic Drugs & Psychotropic Substance Cases, Jaipur in Sessions Case No. 11/2003 whereby the appellant has been convicted for offence under Section 8/21 of Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to be as 'the Act'), and has been sentenced to undergo rigorous imprisonment for ten years' and fine of Rs.1,00,000/- (rupees one lac) and in default thereof to further undergo two years' rigorous imprisonment. 2. The relevant facts of the case are that on 5.1.2003, S.H.O. Chhagan Lal (PW-14), PS-Brahmpuri alongwith other police personnel consisting of three constables and a driver set out for routine patrolling duty at about 8.15 pm. The patrolling party reached Sita Ram Bazar, Brahmpuri at about 9.15 pm and on the turning point, they saw a person in the suspicious circumstances who, on seeing the police jeep, tried to hide himself. On being asked as to what he was doing there, he could not answer satisfactorily; rather put his left hand which raised all the more suspicion. On enquired he disclosed his name as Shyam Kumar having smack in the pocket of his jacket. After detaining him, two independent witnesses i.e. Rahim Khan and Sharfuddin @ Baba were summoned. After informing about his legal right of getting the personal search done before a Gazetted Officer or a Magistrate, and after obtaining his consent PW-14 Chhagan Lal, SHO gave his own search and then proceeded for personal search of the accused Shyam Kumar. On search, pocket of jacket was found to contain 418 gms a substance which appeared and smelt like smack and after deducting the weight of the pouch, the substance weighed as 411.500 gms. Two samples of 5.0 gms each were taken out and were marked as 'A' and 'B' respectively whereas remaining substance was sealed and marked as 'C'. All packets marked 'A' 'B' & 'C' were sealed separately in one packet and marked as 'D'. The accused was arrested and on return to the police station, the sealed articles were deposited in the Malkhana and case was registered. Sh.Dilip Sharma, S.H.O. Amer was entrusted with the investigation who got the sealed samples examined from Forensic Science Laboratory (for short as 'FSL'). The report giving positive test of diacetylmorphine was received. 3. The accused was arrested and on return to the police station, the sealed articles were deposited in the Malkhana and case was registered. Sh.Dilip Sharma, S.H.O. Amer was entrusted with the investigation who got the sealed samples examined from Forensic Science Laboratory (for short as 'FSL'). The report giving positive test of diacetylmorphine was received. 3. After completion of investigation, charge-sheet was filed against the appellant for trial of offence under Section 8/21 of 'the Act'. 4. The learned Trial Judge read over the charges under Section 8/21 of 'the Act'. The accused denied the charge and claimed trial. 5. In order to substantiate its case, the prosecution examined as many as 14 witnesses and exhibited 22 documents. The accused was examined under Section 313 of the Code of Criminal Procedure (for short as 'Code') wherein he alleged false implication but did not lead any defence. 6. After hearing the parties and evaluating the material before it, the learned Trial Court recorded the finding of conviction on the basis that the recovered substance was a contraband and the quantity recovered was commercial. Consequently the appellant was convicted & sentenced as mentioned hereinabove vide order impugned. 7. The learned counsel for the appellant assailed the order impugned on various grounds: (i) First argument advanced was predicated upon the fact that the mandatory provisions of Section 42 of 'the Act' have not been complied with and that their non-compliance vitiates the trial. (ii) The second argument advanced was predicated upon the fact that there was interpolation on the notice Ex.P/15 and consent Ex.P/24 obtained from the witnesses and that itself falsifies the entire prosecution story. (iii) The third argument advanced was predicated upon the fact that in FSL report, the percentage of contraband has not been given and it could not be stated that the entire substance allegedly recovered from his possession was contraband. Reliance was placed on the judgment of E.Michael Raj vs. Intelligence Officer, Narcotic Bureau-2008(2) WLC (SC) (Cri.) 265. 8. Learned Public Prosecutor, on the other hand, argued that the recovery in the present case was a chance recovery that too from a public place and not any enclosed building, therefore, the provisions of Section 42 of 'the Act' were not attracted. 9. Further that just because inadvertently some date has been put by the SHO under his signature, does not mean that the documents are false. 9. Further that just because inadvertently some date has been put by the SHO under his signature, does not mean that the documents are false. Draw-ing my attention to the body of Ex.P/15 & Ex.P/24 it was submitted that the documents read as a whole clearly show that this was inadvertent mistake. 10. It was further contended that the appellant had been convicted for offence under Section 8/21 of 'the Act' for possessing opium derivative and that the presence of diacytlmorphine itself showed that it was an opium derivative/preparation as given in Section 2(xvi)(d) & (e) of 'the Act. 11. Considered these arguments. 12. The first argument advanced by learned counsel for the appellant relates to the mandatory provisions of Sec. 42 of 'the Act'. In this regard it was vehemently argued that since Chhagan Lal (PW-14), SHO before making the search did not comply the provisions of Sec. 42 of 'the Act', therefore, accused deserved to be acquitted and the learned Trial Judge has ignored this point. 13. The basis of the case, admittedly, is Ex.P/23 which shows that the patrolling personnels were on routine patrolling duty and that the accused was seen in the suspicious circumstances, therefore, he was questioned. Patrolling party as mentioned in rapat, set out from the police station at 8.15 pm on a routine duty and not on the basis of any information. Ex.P/23 Rapat Rojnamcha reads as under: ^^etewu fjiksVZ bl le; eu ,l,pvks Nxu yky o e; gejkgh tkIrkJh jkeLo:i ,Qlh uEcj 1422] Jh cyjke ,Qlh 5088 Jh iks[kjey ,Qlh 4458 e; ljdkjh thi vkjts14 6lh 3191 e; pkyd Jh ckypUn ds okLrs x;k o fuxjkuh cnek'kku gsrq gYdk Fkkuk jokuk gqvkA rduhdh cksDl gekjk fy;kA pktZ Fkkuk ctqes fd;k x;kA D/o jiV ntZ gSA** 14. It is clear from above that PW-14 and his patrolling party had left the police station for routine patrolling duty and not on the basis of any information received from any source with regard to contraband or otherwise. 15. It is clear from above that PW-14 and his patrolling party had left the police station for routine patrolling duty and not on the basis of any information received from any source with regard to contraband or otherwise. 15. The statement of Chhagan Lal (PW-14) if read with the statement of PW-5 Pokharmal, PW-7 Balram Singh and PW-10 Rahim Khan, they clearly establish that the person was found in suspicious circumstances who was trying to hide himself on seeing the police jeep and on inquiry, he disclosed his name as Shyam Kumar and his act of trying to hide himself raised doubt in police personnel's mind and it is because of this the search was made in the presence of two independent witnesses and after observing the requisite legal formalities. Ex.P/23 clearly suggests that there was no information or previous knowledge of the Officer in this regard. 16. The argument of learned counsel for the appellant that the Officer was supposed to have recorded this information and sent to his Senior Officer and that it was a night time, provisions of Section 42(2) of 'the Act' should have also been complied with. This argument of learned counsel for the appellant is not tenable because firstly the recovery has been made while on a routine patrolling duty as admittedly there was no previous information or personal knowledge. Secondly the turning point at Sita Ram Bazar, Brahmpuri was a public place and provisions of Section 42 of 'the Act' in any case are not attracted. Instead in the case in hand, provisions of Section 43 of 'the Act' were applicable. In this view of the matter this argument of learned counsel for the appellant is not sustainable. 17. Besides above, admittedly there was no information with regard to the commission of any offence under this Act. PW-3 Gopi Chand had proceeded for investigation of an abduction case and while going for search of abducted woman he found the appellants in suspicious condition. Thus it was clearly a case of chance recovery as held in Bharat Bhai Bhagwanji Bhai vs. State of Gujarat-AIR 2003 SC 07, at P.10, that if at the time of effecting search, there was no knowing that an offence under Chapter IV of “the Act” has been committed by the accused, the provisions of Sec.50 of the Act are not attracted. 18. 18. So far as second argument is concerned, it relates to the fact that there is some disparity in the dates given in the body of Ex.P/15 & Ex.P/24 (notice & consent letter of independent witnesses). According to learned counsel for the appellant, the date put by SHO under his signatures is “6.1.03” whereas witnesses under their signatures have put the date as “5.1.03”. His argument was that this creates a serious doubt that the documents were not prepared at the spot and that they were prepared later in the police station and entire proceeding was an eye wash. 19. I have looked into the document Ex.P/15 consent of independent witness Rahim Khan, which reads as under: ^^lgerh xokg eSa jghe [kku iq= Jh xuh [kku tkfr eqLyek] mez 35 o"kZ fuoklh iqjkuk pSd iksLV ds ikl] lM+d eksM+] Fkkuk czãiqjh] t;iqj 'kgj gky vksVks fjD'kk pkyd t;iqj 'kgj vkt fn- 5-1-2003 dks ceqdke lhrkjke cktkj] t;iqj 'kgj ij vki Jh Nxu yky lh-vkbZ-] ,l,pvks ih,l czãiqjh] t;iqj 'kgj dks N.D.P.S. Act ds rgr dk;Zokgh gsrq LosPNk ls xokgh nsus gsrq lger gwaA Sd/- jghe [kku 5-1-2003** 20. In the same manner, I have also gone through the document Ex.P/24 consent of other independent witness Shafuddin @ Baba, which reads as under: ^^lgerh xokg eSa lQqíhu mQZ ckck iq= Jh fldUnj [kku tkfr eqLyeku] mez 40 o"kZ fuoklh Qty'kkg ckck dh njxkg] ca/k dh ?kkVh] fnYyh ckbZ ikl jksM+] Fkkuk czãiqjh] t;iqj vkt fnukad 5-1-2003 dks ceqdke lhrkjke cktkj] t;iqj 'kgj ij vki Jh Nxu yky lh-vkbZ-] ,l,pvks ih,l czãiqjh] t;iqj 'kgj dks N.D.P.S. Act ds rgr dk;Zokgh gsrq LosPNk ls xokgh nsus gsrq lger gwaA Sd/- ckck 5-1-2003** 21. It is clear from above that the body of these documents i.e. Ex.P/15 & Ex.P/24 reads “vkt fnukad-5.1.03” and both the witnesses put the date “5.1.03” under their respective signatures. It is true that under the signatures of SHO, the date put is “6.1.03”. There has not been any cross-examination in this regard before the Trial Court and it appears to be an inadvertent error because the body of the document speaks “vkt fnukad". It means that the document was signed by the witness on the date of executing said document. 22. There has not been any cross-examination in this regard before the Trial Court and it appears to be an inadvertent error because the body of the document speaks “vkt fnukad". It means that the document was signed by the witness on the date of executing said document. 22. Just because inadvertently date has been mentioned as “6.1.03” instead of “5.1.03”, it cannot falsify the entire documents specially when in the body of the document itself it was mentioned that the consent was obtained today. For the foregoing discussion, this argument of learned counsel for the appellant is not sustainable. 23. Third and last argument advanced was predicated upon the fact that since the FSL report Ex.P/14 does not show as to what was the percentage of contraband in the substance, the appellant could not have been convicted for offence under Section 21(c) of 'the Act'. 24. The FSL report Ex.P/14 received during investigation shows that the samples gave positive tests for the presence of diacetylmorphine. Ex.P/14, the Forensic Science Laboratory report reads as under: “RESULT OF EXAMINATION On microchemical examination, the sample contained in the packet marked A gave positive tests for the presence of diacetylmorphine (HEROIN).” 25. The appellant has been convicted for an offence under Section 8/21 of 'the Act'. This Section prescribes punishment for possessing manufactured drugs and preparations. The “manufactured drug” has been defined in Section 2(xi). As per Section 2(xi)(a), manufactured drug includes opium derivatives. “2(xi): “manufactured drug” means- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate” 26. The appellant has been convicted for an offence under Section 8/21 of 'the Act'. This Section prescribes punishment for possessing manufactured drugs and preparations. The “manufactured drug” has been defined in Section 2(xi). As per Section 2(xi)(a), manufactured drug includes opium derivatives. “2(xi): “manufactured drug” means- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate” 26. “opium derivative” in turn has been defined in Section 2(xvi) as under: “2(xvi): opium derivative” means- (a) the medicinal opium, that is, opium which has undergone the process necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials; (b) prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts; (d) diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its salts; and (e) all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine.” 27. As is clear from Ex.P/14 that diacetylmorphine was found present in the samples and as per provisions of Section 2(xvi)(d) (supra), the other name of diacetylmorphine is 'heroin'. As per Section 2(xvi)(e), all preparations containing any diacetylmorphine are opium derivatives. According to provisions of Section 2(xvi)(e), preparation containing more than 0.2 per cent of morphine shall also be taken to be opium derivative whereas in case of diacetylmorphine, the word used is 'any diacetylmorphine'. It is clear from this that morphine and diacetylmorphine are two different chemicals. 28. For this reason also, in my view there was no necessity of writing the percentage of actual content of the contraband because the provision is very clear that if, on chemical examination of a substance, morphine is found, then only the question of percentage will come and it has to be more than 0.2 per cent. In case presence of morphine is upto 0.2 per cent, then such preparation will not be treated as opium derivative. In that case, it will neither be manufactured drug nor narcotic drug. 29. Section 21 of the Act prescribes punishment not only for possessing manufactured drugs but also for possessing preparations. In case presence of morphine is upto 0.2 per cent, then such preparation will not be treated as opium derivative. In that case, it will neither be manufactured drug nor narcotic drug. 29. Section 21 of the Act prescribes punishment not only for possessing manufactured drugs but also for possessing preparations. In the case in hand, in the first place there was no necessity to give the percentage of actual content of contraband. Moreover Central Government, vide notification no. SO-2941A dated 18.11.09, has amended earlier notification no.S.O.-1055A dated 19.10.01, which clearly shows that determination of quantity of contraband will be on the basis of actual quantity recovered and not pure contents of the contraband. By way of this amendment, it has been clarified that entire quantity recovered from the accused shall be taken into consideration for the purpose of determining whether quantity is small, intermediate or commercial. 30. For the reasons mentioned herein-above, I find no force in this argument also. 31. No other argument was advanced. 32. On the basis of discussion made herein-above, I am of the view that the appellant has not made any case warranting interference in the finding of conviction recorded by the learned Trial Judge. Hence the conviction of appellant recorded under Section 8/21 of 'the Act' is maintained. 33. So far as sentence part is concerned, learned counsel for the appellant argued that the appellant has already undergone a sentence of almost 08 years and he has no means to pay the huge sum of Rs.1,00,000/- which has been imposed as fine. It was strongly contended by Sh.Sahani, learned counsel for the appellant that the sentence awarded in default of payment of fine to the appellant was excessive and harsh which calls for reduction. So far as jail sentence of the appellant and the quantum of fine imposed on him is concerned, I find that the sentence for possessing commercial quantity has been prescribed by the legislature under Section 21 of 'the Act'. I, however, feel that sentence imposed in default of payment of fine i.e. two years' rigorous imprisonment, is far too excessive and calls for reduction. I feel that ends of justice would be squarely covered if the sentence of payment of fine is reduced from two years to six months. 34. With the aforesaid observations, appeal is partly allowed. The conviction and substantive sentence awarded to the appellant is upheld. I feel that ends of justice would be squarely covered if the sentence of payment of fine is reduced from two years to six months. 34. With the aforesaid observations, appeal is partly allowed. The conviction and substantive sentence awarded to the appellant is upheld. However partial modification with regard to sentence in default of payment of fine of Rs.1,00,000/- is made. Accordingly, it is ordered that in default of payment of fine of Rs.1,00,000/-, the appellant shall undergo rigorous imprisonment for a period of six months in place of two years. 35. Appeal stands disposed of accordingly.