Hon'ble Dr. GOMBER, J.—Accused-appellants Jaswant Singh, Trilok Kumar and Jagseer Singh have preferred this appeal against the judgment of conviction and order of sentence dated 29.11.2002 passed by learned Special Judge, N.D.P.S. Act Cases, Jaipur in Special Sessions Case No. 4/2002 whereby the appellants have been convicted for offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as 'the Act'), and sentenced with ten years' rigorous imprisonment and fine of Rs. 1,00,000/- (rupees one lac) each and in default thereof to further undergo two years' rigorous imprisonment. 2. The relevant facts of the case are that on 29.11.2001, Vijay Singh Meena, Superintendent, Narcotics, Jaipur received a secret information at about 1.30 p.m. to the effect that Jaswant Singh and Trilok Pandit along with one of their associates were engaged in illegal business of poppy straw and that they would be transporting the same in a truck bearing HR-26A/7671 to Ludhiana. After recording the information and sending a copy to the Deputy Commissioner (Narcotics) Kota and Gwalior, a raid party was constituted under his leadership and after obtaining their consent, two independent witnesses Prabhu Dayal and Rajkumar were asked to accompany the raid party as witnesses. 3. The raid party, consisting of Ajmer Singh, Sanjay Paliwal and Bajrang Lal and headed by Vijay Singh Meena, proceeded to the check post at Jaipur-Ajmer Highway. 4. At about 7.00 a.m., a truck bearing No. HR26A-7671 heading towards Jaipur came from Ajmer side, which was intercepted by Bajrang Lal in the presence of independent witnesses. Three persons were found sitting in the truck, out of whom Jaswant Singh was on the driving seat and the other two disclosed their names as Trilok Kumar and Jagseer Singh. They were informed about the receipt of secret information and the purpose of search to be made. 5. After giving requisite notice under Section 50 of the Act and making them aware of their legal rights of personal search and after getting their consent, Bajrang Lal, Sub-Inspector gave his own search and then started the search of truck as well as the three appellants in the presence of independent witnesses. 6. During the search, truck driver Jaswant Singh gave a consignment note No. 1435 issued by M/s. Kumawat Transport Company, Kuchamancity stating that the truck was loaded with sacks of salt. 6. During the search, truck driver Jaswant Singh gave a consignment note No. 1435 issued by M/s. Kumawat Transport Company, Kuchamancity stating that the truck was loaded with sacks of salt. The truck was searched and on taking out the salt sacks, 83 jute bags containing poppy straw were found underneath. Each of the 83 bags weighed 40 kgs making the total quantity recovered as 3237 kgs. The recovered substance was weighed by one Sanjay Paliwal, Department of Weight and Measure and the substance contained in 83 bags was divided into 4 packets marked as A,B,C and D respectively. Out of the four marked packets, 2-2 samples of 500 gms. each were taken sealed and marked as A1A2, B1B2, C1C2 and D1D2 and remaining substance was sealed separately. The recovery documents were prepared at the spot and the seal which was used for sealing the packets was also sealed separately. Shri Bajrang Lal, Sub-Inspector took the remaining substance in the custody and after completing the search proceedings and after telling reasons for arrest, arrested the accused-persons. 7. The information of the proceedings under Section 57 of the Act was sent to the Superintendent at about 5.00 p.m. on the same day and on receipt of direction in this regard, the case was registered. The sealed bags/packets were deposited in the Malkhana and the remaining substance along with seized truck was deposited in the Department factory of Rajasthan Unit Headquarter, Kota. 8. During investigation, disclosure statement was made by Trilok Kumar to the effect that the goods had been loaded by Shish Ram from Kishangarh godown. At his instance, godown at Mandawri village Kishangarh was also sealed for physical verification and on 6.12.2001, sealed godown was opened and stock register was taken into custody. 9. The Excise Inspector verified the fact and Shishram was summoned and his statements were recorded under Section 67 of the Act. In his voluntary statement, he admitted having loaded 83 bags of poppy straw in truck No.HR-26A/7671 from the godown. His statement was that out of four persons who came with said truck to his godown, one Mohan Singh was dropped by scooter at Kishangarh-Nasirabad road. He also disclosed that during his service tenure, he had got loaded 20 trucks of poppy straw. 10. After recording his statement, Shishram was also arrested and samples A1, B1, C1 and D1 were sent along with letter through Sh. He also disclosed that during his service tenure, he had got loaded 20 trucks of poppy straw. 10. After recording his statement, Shishram was also arrested and samples A1, B1, C1 and D1 were sent along with letter through Sh. Shankar Lal to Neemach Factory for examination. The Government Factory, Neemuch gave its report which was received during investigation wherein, all the four samples were found to be poppy straw. 11. After completion of investigation, charge-sheet for the offence mentioned hereinabove was filed against four accused persons i.e. appellants including Shishram (not before this Court-since acquitted). 12. The learned Special Sessions Judge after hearing the charge arguments, framed the charge under Section 8/15 of the Act and was read over to the appellants and under Section 8/15 alternatively 8/29 of the Act to Shishram. All the accused denied charges and claimed trial. 13. In order to substantiate its case, the prosecution examined as many as 7 witnesses namely PW-1 Bajranglal, PW-2 Prabhu Dayal, PW-3 Rajkumar, PW-4 Sanjay Paliwal, PW-5 Shankarlal, PW-6 Ajmer Singh and PW-7 Vijay Singh Meena, and exhibited 46 documents. 14. After completion of prosecution evidence, the statements of accused were recorded under Section 313 Cr.P.C. and entire incriminating evidence including the circumstances were put to them. They alleged false implication but did not lead any defence. Jagseer Singh's explanation was that no recovery was made from him as he was not sitting in the truck and that he was nabbed from his house at Ludhiana in the morning of 30.11.2001 and after bringing him to Bureau Office at Jaipur, he was made to put his thumb impressions on blank papers under duress. 15. Trilok Singh also alleged having been nabbed from Jaipur Bus Stand where he was allegedly waiting for the bus to go to Ajmer and that his signatures were also obtained on blank papers under duress. 16. Jaswant Singh's explanation was that he did not even know driving and that he had come by bus to Jaipur for medical examination of his broken leg. From bus stand itself he was taken by Narcotics Officials and was made to sign blank papers under coercion. 17. 16. Jaswant Singh's explanation was that he did not even know driving and that he had come by bus to Jaipur for medical examination of his broken leg. From bus stand itself he was taken by Narcotics Officials and was made to sign blank papers under coercion. 17. On the basis of material before him, the learned Special Judge recorded the finding of conviction of the present appellants and sentenced as mentioned hereinabove whereas fourth accused Shishram was acquitted of the charge under Section 8/15 alternatively 8/29 of the Act. 18. The appellants, being aggrieved by the impugned judgment and order, have preferred this appeal. 19. Heard learned counsel for the appellants as also learned Special Public Prosecutor. The impugned judgment was assailed by the learned counsel for the appellants on following grounds : (i) The first argument advanced by the learned counsel for the appellants Sh. V.R. Bajwa was that the mandatory provisions of Sec. 42 of the Act have not been complied with, and that the non-compliance of said mandatory provision is fatal to the prosecution case. (ii) Second argument advanced by the learned counsel for the appellant was with regard to the non-compliance of Sec. 55 of the Act stating that the possibility of tampering with the seal of Articles cannot be ruled out as the requisite seal of his name and office had not been affixed on the articles before depositing in the Malkhana. (iii) Third submission made by the learned counsel for the appellants was that Ex.P/6, Ex.P/7 and Ex.P/8 statements of accused recorded under Section 67 of the Act could not have been read against them because seizure Memo Ex.P/4 had already been made. (iv) Last submission advanced by the learned counsel for appellants was that there were contradictions between the statements of witnesses leading to their probative value to be highly suspect. 20. Per contra, the learned Special Public Prosecutor, strongly supported the impugned judgment stating that there was compliance of Sec. 42 of the Act although provisions of Sec. 42 of the Act were not attracted in the facts and circumstances of the case and the prosecution has proved its case beyond reasonable doubt. 20. Per contra, the learned Special Public Prosecutor, strongly supported the impugned judgment stating that there was compliance of Sec. 42 of the Act although provisions of Sec. 42 of the Act were not attracted in the facts and circumstances of the case and the prosecution has proved its case beyond reasonable doubt. That there is nothing to suggest that there was tampering with the sealed samples and that samples were found intact as mentioned in Ex.P/36 and that the sealed packet Art. 5 received from FSL was produced before the Court. According to him there was compliance of all mandatory provisions. 21. According to him the contradictions pointed out were minor and not so material so as to go to the root of the case. 22. Out of seven witnesses examined by the prosecution, PW-1 Bajranglal, Sub-Inspector who was member of the raid party and who conducted all proceedings, had deposed about the manner the raid was conducted. He proved notices under Section 50 of the Act given to the three accused as Ex.P/1 to Ex.P/3, Panchnama as Ex.P/4, Fard Namuna seal Ex.P/5, statements of the three accused recorded at the spot under Section 67 of the Act as Ex.P/6 to Ex.P/8, arrest memos Ex.P/10 to Ex.P/11, site plan Ex.P/12, Panchnama seizure of documents Ex.P/13, Seizure memo of truck Ex.P/20, documents pertaining to truck Ex.P/21 to Ex.P/24, First Information Report Ex.P/25 and information about arrest of three accused persons as Ex.P/26 to Ex.P/28, test memo as Ex.P/29. Sample articles were proved as Art.1 to 4 and sealed packet received from FLS as Art.5. 23. The statements of PW-4, Sanjay Paliwal, PW-6 Ajmer Singh Baran and PW-7 Vijay Singh are in harmony with the statements of PW-1 Bajranglal. PW-7 Vijay Singh, Superintendent deposed about his having received secret information about transporting of poppy straw in truck No.HR-26A/7671 to Ludhiana which as recorded as Ex.P/41 and the copy sent to Dy. Commissioner Narcotics, Kota is proved as Ex.P/42. He also proved Malkhana entry of depositing the sealed recovered sample as Ex.P/43. He claimed to have sent the sealed sample through Shankar Lal, constable vide letter Ex.P/44 to Government opium factory, Neemuch who after depositing the samples to the factory, brought receipt Ex.P/30. Seizure report sent by fax to Dy. Commissioner (Narcotics), Kota has been proved as Ex.P/45 and the report received from the factory as Ex.P/36. He claimed to have sent the sealed sample through Shankar Lal, constable vide letter Ex.P/44 to Government opium factory, Neemuch who after depositing the samples to the factory, brought receipt Ex.P/30. Seizure report sent by fax to Dy. Commissioner (Narcotics), Kota has been proved as Ex.P/45 and the report received from the factory as Ex.P/36. He also proved the departure entry recorded in Station diary Ex.P/46. The two independent witnesses PW-2 Prabhu Dayal and PW-3 Rajkumar strongly supported the prosecution case with regard to checking and seizure of contraband. They deposed about intercepting the truck, issuing the notices, obtaining their consent for search, preparing of seizure, sealing and sampling of poppy straw. They admitted their signatures on the memos prepared at the spot. PW-5 Shankar Lal who was posted in CBN Office, Jaipur claimed to had been given Ex.P/29 test memo in sealed condition which he deposited in the factory at Neemuch and brought Ex.P/30 receipt. Ex.P/36 report received after the qualitative and quantitative tests shows to have found poppy straw in the four samples. 24. As regards submission advanced on behalf of appellants with regard to contradictions and discrepancies in the statements of witnesses, I have carefully gone through the same and considered the said argument. The discrepancies pointed out by the learned counsel for the appellants are minor which cannot be said to affect the prosecution case adversely and which may go to the root of the matter as there is no discrepancy or contradiction with regard to the fact of recovery of contraband or with regard to link evidence or compliance of legal provisions. 25. The independent witnesses have fully supported the prosecution case. Minor contradictions with regard to the mode of their reaching or the time of completion of recovery proceedings are immaterial which cannot be said to affect prosecution case adversely. They have categorically proved the entire proceedings conducted in their presence. There are bound to be minor contradictions in the statement of untutored witnesses in view of the fact that every one has a different perception and observation power as well as memory. 26. Learned trial Court has dealt with the statements of accused recorded under Section 67 of the Act and exhibited as Ex.P/6 to Ex.P/8 and has rightly so, not relied on those statements for the reason that Ex.P/4 seizure memo had been prepared prior in point of time. 27. 26. Learned trial Court has dealt with the statements of accused recorded under Section 67 of the Act and exhibited as Ex.P/6 to Ex.P/8 and has rightly so, not relied on those statements for the reason that Ex.P/4 seizure memo had been prepared prior in point of time. 27. There is no dispute that provisions of Sec. 42 of the Act, if they are applicable in any case, are mandatory as has been held by Hon'ble Apex Court in State of Punjab vs. Balbir Singh (1994 Cr.L.R. SC 241), Mohinder Kumar vs. State of Panaji, Goa ( AIR 1995 SC 1157 ), State of Punjab vs. Baldev Singh ( AIR 1999 SC 2378 ) and Abdul Rashid Ibrahim Mansuri vs. State of Gujarat (2000 Cr.L.R. (SC) 373 = RLW 2000(2) SC 264). However the question is whether Sec. 42 of the Act was applicable or not in the facts of the case. 28. As is clear from the language of Sec. 42(a) of the Act that it applies in the case in which a building conveyance or enclosed place is to be entered and searched and not where search is conducted at a public place. 29. Since the search was conducted on highway and not in any enclosed place, Section 43 of the Act was attracted and not Sec. 42 of the Act. Explanation attached to Sec. 43 of the Act reads as under : "Section 43 : "Explanation.—For the purpose of this section, the expressions "public place" includes any public conveyance hotel, shop or other place intended for use by or accessible to the public." 30. Admittedly the secret information received by PW-7 pertained to the expected transportation of contraband in a truck on National Highway and the search was conducted there. The learned Special Judge has rightly rejected this argument. The submissions of defence counsel were not attracted as the provisions of Sec. 42 of the Act were not applicable. 31. Admittedly the secret information received by PW-7 pertained to the expected transportation of contraband in a truck on National Highway and the search was conducted there. The learned Special Judge has rightly rejected this argument. The submissions of defence counsel were not attracted as the provisions of Sec. 42 of the Act were not applicable. 31. So far as the argument with regard to non-compliance of Section 55 of the Act, is concerned, the ocular evidence, in particular, the statements of PW-1 Bajranglal, PW-5 Shankarlal, PW-6 Ajmer Singh Brar and PW-7 Vijay Singh Meena read along with Exhibits P/4, P/5, P/30, P/36, P/43 and P/44 show that this infirmity cannot be said to have affected the prosecution case adversely as there is nothing to suggest that the seals were not found intact by the laboratory. 32. In view of the discussion made hereinabove, I am of the considered view that the learned trial Court has not erred in arriving at a finding of conviction of the present appellants for the offence mentioned hereinbefore. 33. Even on re-appreciation of the evidence, I have not been able to persuade myself to arrive at a finding different than the one recorded by the learned trial Judge. Hence the conviction of the appellants for the offence under Section 8/15 of the Act deserves to be upheld. 34. Shri V.R. Bajwa, learned counsel for the appellants submitted that the appellants are poor persons and are not in a financial position to pay fine of Rs. 1,00,000/-, and that the substantive sentence has already been suffered by them, therefore, the sentence awarded in default of payment of fine be reduced from two years' rigorous imprisonment to six months' rigorous imprisonment. In support of his submission, he placed reliance on the case of Obie Kwe Emeanu vs. State of Maharashtra (2003) 11 SCC 317. 35. Learned Public Prosecutor opposed the prayer and submitted that considerably large quantity of contraband has been recovered from the truck and that the sentence awarded in default of payment of fine of Rs. 1,00,000/- cannot be said to be excessive or unjustified. 36. I have given my thoughtful consideration to the submission made by the learned counsel for the appellants as also the learned Govt. Advocate. 37. Appellants were low paid employees and have been behind bars for about ten years. With their financial constraints payment of fine of Rs. 1,00,000/- cannot be said to be excessive or unjustified. 36. I have given my thoughtful consideration to the submission made by the learned counsel for the appellants as also the learned Govt. Advocate. 37. Appellants were low paid employees and have been behind bars for about ten years. With their financial constraints payment of fine of Rs. 1,00,000/- is beyond their reach in default whereof they are to suffer two more years' rigorous imprisonment. 38. Considering all these facts and circumstances of the case, and on the lines of Apex Court pronouncement in Obie Kwe Emeanu (supra), I am of the considered view that the ends of justice would be served if two years' rigorous imprisonment awarded in default of payment of fine is reduced to six months' rigorous imprisonment. 39. Consequently, the appeal filed by the appellants is partly allowed. While maintaining the conviction and substantive sentence awarded for the offence under Sec. 8/15 of the Act, two years' rigorous imprisonment awarded in case of default of payment and of fine is modified and is reduced to six months' rigorous imprisonment. 40. Accordingly, the appeal stands disposed of.