JUDGMENT This appeal is directed against the judgment and order dated 30.01.2010, passed by Special Judge/Session Judge, Pithoragarh, in Special Sessions Trial No.7 of 2007, whereby said court has convicted the accused/appellant Kalyan Singh under section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N. D. P.S. Act), and sentenced him to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 1 lac. 2. Heard learned counsel for the appellant, and learned counsel for the State, and perused the lower court record. 3. Prosecution story in brief is that on 01.06.2007,P.W. 3 S.I. Ram Datt Joshi alongwith Assistant S.I. Ravindra Singh (P. W.2), Constable Keshav Lal (P.W.1) and other constables was coming back after performing law and order duty within the limits of Police Station Dharchula. When the police team in a jeep reached near Army Crossing they saw two persons coming from the side of Village Hat who were carrying their bags with them. Said two persons, on seeing the police party turned back and started going speedily. The policemen who were in the government vehicle bearing registration no. UA-05/4673 got down and surrounded the two. One of them disclosed his name Kalyan Singh Bhandari (accused/appellant) and another one told his name Jitendra Singh. When they were sternly asked as to what they were carrying in the bags they disclosed that it was cannabis (CHARAS). On this, the police party told the accused/appellant and his associate that if they desire their search can be made before the Magistrate or any Gazetted Officer. Prosecution case is that the accused/appellant and his associate opted to be searched in the presence of Magistrate. Thereafter, both the persons were taken before the Sub Divisional Magistrate, Dharchula Shri Anoop Kumar Nautiyal (P.W.5), and search was made. From the bag which was carried by accused Kalyan Singh itwas found that 7.600 kg, cannabis was lying in it. From the possession of another person 4 kg, of cannabis was found. The recovery memo was prepared, samples were taken from the recovered cannabis and both the packets were separately sealed. The contraband item in sealed packets and sealed samples was taken to the Malkhana for being deposited. Necessary information was sent to the superior officers through radiogram in compliance of section 57 of N.D.P.S. Act. The recovery memo was prepared, samples were taken from the recovered cannabis and both the packets were separately sealed. The contraband item in sealed packets and sealed samples was taken to the Malkhana for being deposited. Necessary information was sent to the superior officers through radiogram in compliance of section 57 of N.D.P.S. Act. P.W. 7 Inspector Ramesh Chandra Thapliyal investigated the crime, after P.W. 3 S.I. Ram Datt Joshi got lodged First Information Report (Ex. A7) on the basis of which crime no. 184 of 2007 and 185 of 2007, were registered against the two accused. After investigation charge sheet (Ex. A31) was filed against accused/appellant Kalyan Singh. A separate charge sheet was filed in respect of the another accused. (Trial of Jitendra Singh was also conducted with the present accused/appellant. However, his appeal is not before this Court for its consideration). 4. On receipt of the charge sheet, after giving necessary copies, Special Court appears to have heard the parties, and framed charge of offence punishable under section 20/22 N.D.P.S., Act, on 18.09.2007, in reply to Which accused/appellant Kalyan Singh pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Constable Keshav Lal (witness of search and recovery), P.W.2 Assistant S.I. Ravindra Singh (also witness of recovery and arrest of the accused), P.W. 3 S.I. Ram Datt Joshi (complainant and witness of recovery who arrested the accused), P.W.4 Heera Lal (shopkeeper who brought his balance and weight for weighing contraband), P.W. 5 Shri Anoop Kumar Nautiyal,Sub Divisional Magistrate (in whose presence search was made), P.W.6 Constable Kuber Singh (who took samples of cannabis to the Forensic Laboratory Dehradun, for chemical analysis), P.W. 7 Incharge Inspector Rakesh Chandra Thapliyal (who investigated the crime), and P.W.8 Head Constable Daulat Singh (formal witness). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he pleaded that evidence adduced against him is false. However, no evidence in defence was adduced. The trial court, after hearing the parties found accused Kalyan Singh guilty of charge of offence punishable under section 20 N.D.P.S Act. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of ten years, and directed to pay fine of Rs. 1 lac. However, no evidence in defence was adduced. The trial court, after hearing the parties found accused Kalyan Singh guilty of charge of offence punishable under section 20 N.D.P.S Act. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of ten years, and directed to pay fine of Rs. 1 lac. Aggrieved by said judgment and order dated 29.01.2010, passed in Special Trial No. 07 of 2007, this appeal is fi.led by the convict. 5. There are two important features of this case i.e., (1) the quantity of the cannabis (CHARAS) said to have been recovered is 7.600 kg. which is much higher then the minimum commercial quantity, and (2) the search and recovery said to have been made before the Sub Divisional Magistrate. 6. P.W.1 Constable Keshav Lal, P. W. 2 Assistant S.I. Ravindra Singh and P.W.3 S.1. Ram Datt Joshi are in substance witnesses of the same fact that on 01.06.2007, when they were coming from completing law and order duty, near Army Crossing, accused was seen coming from village Hat, and on seeing police party he attempted to escape. All the three witnesses have stated that he was apprehended alongwith his associate Jitendra Singh. The three witnesses have further told that on questioning, accused Kalyan Singh disclosed that there was cannabis in the aag on which he was given option to be get searched in the presence of the Magistrate. P.W.1 Keshav Lal, P.W.2 Assistant S.I. Ravindra Singh and P.W.3 Ram Datt Joshi further told that there after the accused alongwith his associate was taken before the Sub Divisional Magistrate, Dharchula, and in his presence recovery of 7.600 kg., of cannabis was made from the bag of Kalyan Singh (accused/appellant). These witnesses have also proved the recovery memo and the fact that the contraband was weighed after the recovery, and sealed in separate packets after taking out the sample. 7. P.W.4 Heera Lal, a public witness has stated that from his shop, on the request of the police, balance and weights were taken to Tehsil. 8. P.W.5 Anoop Kumar Nautiyal, Sub Divisional Magistrate, stated that on 01.06.2007, he was posted in Dharchula. He further told that he got information from S.I. Ram Datt Joshi (P.W.3) that two persons who were caught by him were required to be searched in connection with recovery of contraband item. 8. P.W.5 Anoop Kumar Nautiyal, Sub Divisional Magistrate, stated that on 01.06.2007, he was posted in Dharchula. He further told that he got information from S.I. Ram Datt Joshi (P.W.3) that two persons who were caught by him were required to be searched in connection with recovery of contraband item. The witness further told that the two personswere brought before him and search was made. The Sub Divisional Magistrate has further told that from the bag of accused/appellant Kalyan Singh 7.600kg., cannabis was recovered which was smelled pungently. From another person Jitendra Singh 4 kg., of cannabis was recovered. This witness has further stated that the recovered contraband was sealed in separate packets and samples were taken. 9. P.W.6 Constable Kuber Singh stated that he took the samples of the contraband in a sealed condition to Forensic Science Laboratory, Dehradun. Report of the forensic lab is Ex. A29 on the record which shows that on examination the sample gave positive test for CHARAS (cannabis). The report Ex. A29 further discloses that the seals were found intact at the time the samples were delivered at the laboratory. 10. As to the keeping the contraband, and sample in a sealed condition, P.W.1 Keshav Lal has stated that the samples remained in a sealed condition in Malkhana of which this witness was incharge. 11. From the discussion of above evidence on record, this Court is in agreement with the trial court that the prosecution has successfully proved charge of offence punishable under section 20 N.D.P.S. Act against the accused Kalyan Singh. 12. On behalf of the accused/appellant it is submitted that before the police caught the accused he could have easily thrown the bag in the open field, and apprehending the accused in the manner suggested by the prosecution is not natural. However, this Court thinks that no doubt some clever person might have thrown the bag but since in the present case at the time the accused was trying to escape it appears that he was not sure of being caught. In such circumstance, if he did not threw the bag it does not create any reasonable doubt in the prosecution story. 13. Second submission advanced on behalf of the appellant is that no public witness was taken by the police at the time of the recovery. In such circumstance, if he did not threw the bag it does not create any reasonable doubt in the prosecution story. 13. Second submission advanced on behalf of the appellant is that no public witness was taken by the police at the time of the recovery. Though P. W. 3 Ram Datt Joshi and other witnesses have stated that an attempt was made to procure the public witnesses but they could not get one. In the present day World, in India, normally an uninterested person does not easily agree to become a witness of such kind of recovery as one apprehends that he would be required to come to the Court on several dates for getting his evidence recorded. As such, mere absence of public witness does not shake the testimony of the three witnesses namely P.W.1 Keshav Lal, P.W.2 Assistant S.I. Ravindra Singh and P.W. 3 Ram Datt Joshi, particularly when their evidence is supported by the statement of P.W.4 Anoop Kumar Nautiyal, Sub Divisional Magistrate. 14. Thirdly, it is pleaded that all the documents including recovery memo, etc., are prepared in handwriting of P.W.1 Keshav Lal as such, it appears that everything was done at the Police Station to complete the formalities and implicate the appellant. In the opinion of this Court, this does not create any reasonable doubt in the prosecution story as P.W.1 Keshav Lal was said to be present not only at the time when accused was apprehended but when he was taken before the Sub Divisional Magistrate, and when the contraband was taken to Police Station and from there to Malkhana. 15. Next contention of learned counsel for the appellant is that in the Malkhana register there is a entry of 02.06.2007, whereafter entry of the contraband is made on 01.06.2007, and this shows manipulation. However, on close scrutiny this Court finds that there is already entry of the mcontraband in question on 01.06.2007, thereafter there is one entry on 02.06.2007, and again in respect of the contraband in question another entry is made after the contraband was taken to the court at the time of taking remand and brought back to the Malkhana. As such, this also doesnothelp the appellant. 16. As such, this also doesnothelp the appellant. 16. Also attention was drawn to the contradictions in the statements of P.W.1 Keshav Lal and P.W. 3 Ram Datt Joshi, and it is pointed out that one has stated that he brought the cannabis at the Police Station and deposited at Malkhana while another told that he brought it. Since both the witnesses were together as such this contradiction cannot be said to be material one. 17. Regarding Section 57 of N.D.P.S. Act, it is argued that the statement of the witnesses are not substantiated from the entry in the General Diary. However, Ex. A8 and Ex. A21 show that through radiogram the message was given to the senior officers regarding the arrest and the recovery. Otherwise, also, agree with the trial court that the provision contained in Section 57 of N.D.P.S. Act, is directory in nature. 18. Lastly, it is argued that according to witnesses sample taken from the contraband recovered from the accused was 100 gm, while the actual weight found at the Forensic Laboratory was different. However, on going through the entire record including laboratory report, thisCourt finds that there is no substantial difference. The balance used by the policemen for weighing the contraband and the sample was ordinary balance while in Forensic Laboratory normally such weights are recorded with electronic/digital balance, as such the minor difference in the weight by itself is not sufficient to discard the testimony of the witnesses as to the recovery of contraband from the accused Kalyan Singh. 19. Therefore, this Court is of the view that this appeal has no force and same is liable to be dismissed. Accordingly, the appeal is dismissed. Let the copy of this judgment be sent to the Superintendent of the Jail concerned where the appellant is serving out the sentence. Lower court record be sent back.