JUDGMENT Mr. Jora Singh, J.: - Ramesh Kumar preferred this appeal to impugn the judgment of conviction dated 12.2.2007 and order of sentence dated 13.2.2007 rendered by Special Judge, Ambala, in NDPS Case No. 38 of 2002/2005, arising out of FIR No.175 dated 6.7.2002 under Section 15 of Narcotic Drugs & Psychotropic Substances Act, 1985 (for short, ‘the Act’), Police Station Mullana. 2. By the said judgment, he was convicted under Section 15 of the Act and sentenced to undergo RI for five years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for six months. 3. Prosecution story, in brief, is that on 6.7.2002, police party headed by SI Rameshwar Parshad in connection with patrol duty was present near Saha Chowk, then received secret information that Ramesh Kumar is in the habit of selling of narcotic substance at his residence. He has gone out to purchase narcotic substance and in case there is a raid near turning point of Village Samlehri, then he could be apprehended. Raiding party was constituted. In the meantime, Kanwar Pal Singh came and was joined with the police party. Police party was holding nakabandi near the turning of Village Samlehri. After some time, Ramesh Kumar was seen while coming from the side of Village Mithapur carrying a gunny bag on his head. He was apprehended. IO suspected that there was some narcotic in the bag and the same was to be searched. Offer was given to the accused as to whether he wanted to be searched before a Magistrate or Gazetted Officer. Then accused replied that he wanted to be searched before a Gazetted Officer. VT message was sent to DSP Uday Shanker to reach at the spot. DSP Uday Shanker came at the spot. Accused was produced before the DSP along with gunny bag. On the direction of the DSP, IO had searched the bag carried by the accused and on search, poppy husk weighing 30 kgs. was recovered. Two samples of 250 grams each were separated to serve as sample. Samples and remaining poppy husk were separately sealed with the seals bearing impressions ‘RP’ and ‘US’. Seal impressions of the seals used were prepared separately. Case property was taken into police possession vide separate memo attested by the witnesses. was recovered. Two samples of 250 grams each were separated to serve as sample. Samples and remaining poppy husk were separately sealed with the seals bearing impressions ‘RP’ and ‘US’. Seal impressions of the seals used were prepared separately. Case property was taken into police possession vide separate memo attested by the witnesses. Seal of the IO after its use was handed over to HC Som Nath, whereas DSP retained his own seal. Ruqa was sent to the police station, on the basis of which, formal FIR was registered. Rough site plan with correct marginal notes was prepared. Statements of the witnesses were recorded. On return to the police station, case property was deposited with the Incharge of Malkhana. After completion of investigation, challan was presented in Court. 4. Accused was charged under Section 15 of the Act, to which he pleaded not guilty and claimed trial. 5. In order to substantiate its case, prosecution examined 7 witnesses. 6. PW1 SI Gian Singh stated that after completion of investigation, report under Section 173 Cr.P.C. was prepared by him. 7. PW2 HC Roop Chand stated that on 15.7.2002, MHC had handed over to him sample parcel for depositing in the laboratory. Sample parcel was deposited in the laboratory and receipt obtained was handed over to the MHC. 8. PW3 HC Ranbir Singh stated that on 6.7.2002, he was Incharge of Malkhana. On that day, on receipt of ruqa (Ex.PA), he had recorded formal FIR (Ex.PA/1). On the same day, SI Rameshwar Parshad deposited case property of this case with him and on 15.7.2002, he had handed over sample parcel along with seal impression to HC Roop Chand for depositing in the laboratory. After depositing sample parcel in the laboratory, receipt obtained was handed over to him. 9. PW4 SI Rameshwar Parshad is the Investigating Officer. 10. PW5 Kanwar Pal Singh is one of the recovery witnesses. He has supported the version of IO. 11. PW6 SI Som Nath stated that on 6.7.2002, he was Head Constable at Police Station Mullana. On that day, he was with the police party headed by SI Rameshwar Parshad. He is one of the recovery witnesses and has supported the version of IO. 12. PW7 DSP Uday Shanker stated that on the request of IO, he had gone to the spot and in his presence, recovery was effected. 13. On that day, he was with the police party headed by SI Rameshwar Parshad. He is one of the recovery witnesses and has supported the version of IO. 12. PW7 DSP Uday Shanker stated that on the request of IO, he had gone to the spot and in his presence, recovery was effected. 13. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. 14. Defence version of the accused was that nothing was recovered from his possession. His thumb impressions were obtained on blank papers. 15. Opportunity was given to lead evidence, but no defence was led. 16. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. 17. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. 18. After arguing for some, when learned defence counsel for the appellant failed to point out any infirmity or illegality in the impugned judgment, then stated that recovery was effected on 6.7.2002 and at that time, appellant was 41 years’ old. Recovery is not commercial. Appellant has already undergone near about two years. Requested to take lenient view. 19. Learned State counsel argued that police party headed by SI Rameshwar Parshad was holding a nakabandi. Independent witness was with the party. Then appellant was apprehended while carrying gunny bag on his head. Recovery was from the bag. Section 50 of the Act was not applicable but even then, offer was given to the appellant as to whether he wanted to be searched before any Gazetted Officer or Magistrate. As per reply of the appellant, Gazetted Officer was summoned and as per direction of Gazetted Officer, bag was searched by the IO and on search of the bag, poppy husk weighing 30 kgs. was recovered. Two samples of 250 grams each were separated to serve as sample. Samples and remaining poppy husk were separately sealed with the seals bearing impressions ‘RP’ and ‘US’. Seal impressions of the seals used were prepared separately. Before recovery, there was no enmity with the police party. Independent witness also appeared to support the prosecution story. No reason to disbelieve the prosecution story. 20. Samples and remaining poppy husk were separately sealed with the seals bearing impressions ‘RP’ and ‘US’. Seal impressions of the seals used were prepared separately. Before recovery, there was no enmity with the police party. Independent witness also appeared to support the prosecution story. No reason to disbelieve the prosecution story. 20. Admittedly, learned defence counsel for the appellant has not challenged the impugned judgment on the point of conviction and only requested to take lenient view, but even then I want to scrutinize the evidence on the file as to whether recovery was effected as per story or not. 21. On 6.7.2002, police party headed by SI Rameshwar Parshad as per secret information was holding nakabandi near the turning of Village Samlehri. Independent witness was with the police party. Then appellant was seen while carrying a gunny bag coming from the side of Village Mithapur. On seeing the police party, he tried to retreat. On suspicion, he was apprehended. IO suspected that there was some narcotic substance in the bag. Offer was given to the accused as to whether he wanted to be searched before a Magistrate or Gazetted Officer. As per reply of the appellant, Gazetted Officer was summoned at the spot and in the presence of Gazetted Officer, recovery was effected. Case property was sealed by the IO with his own seal bearing impression ‘RP’ and with the seal of Gazetted Officer bearing impression ‘US’. Independent witness was with the police party but seal after its use was not handed over to him. If seal after its use was not handed over to the independent witness, then story is not to be ignored as held in Balbir Kaur vs. State of Punjab, [2009(4) Law Herald (SC) 2503 : 2009(3) Law Herald (P&H) 1857 (SC)] : 2009(4) Recent Apex Judgments 330. 22. Recovery was on 6.7.2002. Sample parcel was handed over to HC Roop Chand on 15.7.2002 for depositing in the laboratory. As per report of the laboratory, seals on the sample parcel were found intact and tallying with the seal impression. So, delay of about 9 days in sending sample parcel to the laboratory is not fatal. No prejudice was caused to the appellant. Office of the IO was separate from the office of DSP. So, IO had no occasion to bring back seal from the Gazetted Officer to re-seal the case property. So, delay of about 9 days in sending sample parcel to the laboratory is not fatal. No prejudice was caused to the appellant. Office of the IO was separate from the office of DSP. So, IO had no occasion to bring back seal from the Gazetted Officer to re-seal the case property. On return to the Police Station, case property was deposited with the Incharge of Malkhana. So, nothing to presume that case property was tampered with. So, in view of all discussed above, I am of the view that there is no infirmity or illegality in the impugned judgment and the same is upheld on the point of conviction. 23. Recovery was effected on 6.7.2002. Recovery is noncommercial. Appellant was 41 years’ old at the time of recovery. At that time, no doubt, another case was also registered against the appellant under the NDPS Act and in that case, he was convicted and sentenced but in the second case, appellant has already undergone the entire sentence. 24. Keeping in view the antecedents of the appellant, I take lenient view and order the appellant to undergo imprisonment already undergone (one year, eleven months and twelve days as per custody certificate dated 25.1.2011). Fine is increased from Rs.5,000/- to Rs.10,000/- to be deposited within two months before the trial Court. However, in the event of non-deposit of fine, appellant to undergo imprisonment as ordered by the trial Court. 25. For the reasons recorded above, appeal without merit is dismissed with modification on the point of sentence. ----------0BSK0----------