JUDGEMENT SURINDER SINGH,J (oral) : In this appeal, the challenge is to the judgment of conviction and sentence passed by the learned trial Court in Sessions Trial No.15 of 2010, decided on 8.8.2011, whereby learned trial Court sentenced the appellant, hereinafter to be referred as “the accused” to undergo rigorous imprisonment for a period of three years and to pay a fine of `20,000/- for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, based upon the percentage of the Cannabis plant in the recovered stuff, which came to be 321 grams. 2.The appeal was admitted for hearing on 26.9.20 1 1. The sentence passed against the accused was ordered to be suspended on his furnishing the personal bonds in the sum of ‘50,000/- with one surety of the like amount, to the satisfaction of the learned trial Court and also to deposit the fine amount within 30 days. The time was further extended, but still neither the bonds were furnished nor fine amount was deposited, thus he was required to surrender before the learned trial Court on 28.2.20 1 1. 3.Shri Raman Sethi, learned counsel for the accused submitted that the accused had already surrendered before the learned trial Court and has been sent to Jail. Learned counsel stated that he is ready and willing to argue the appeal on merits today itself. Learned Additional Advocate General did not object to it, as such, arguments heard in detail. 4.In short the prosecution case has been that on 3.12.2009, police party was headed by PW9 Inspector/SHO Lal Singh of Police Station Banjar. They made a Naqa near Fagupul. Around 4 p.m., they noticed accused coming from the opposite direction wearing Khakhi Jacket and dark grey Pant. On seeing the police, he got perplexed. PW9 aforesaid entertained suspicion and his identity was ascertained. Since he appeared to be some outsider and the reasons for his presence in the Banjar area were asked to which he could not satisfactorily explained. Inspector apprehended some contraband in his possession, as such, he was given an option to be searched in the presence of some Gazetted Officer or a Magistrate, orally as well as in writing vide memo Ext.PW1/A. The accused opted to be searched by the police present on the spot. To this effect, he made an endorsement on the aforesaid document. Inspector apprehended some contraband in his possession, as such, he was given an option to be searched in the presence of some Gazetted Officer or a Magistrate, orally as well as in writing vide memo Ext.PW1/A. The accused opted to be searched by the police present on the spot. To this effect, he made an endorsement on the aforesaid document. (ii) Before conducting the personal search of the accused, Inspector Lal Singh gave his personal search to the accused in the presence of other police officials, but nothing incriminating was found in his possession. To this effect, memo Ext.PW1/B was executed. (iii) Thereafter personal search of the accused was conducted by Inspector Lal Singh by frisking and during personal search, he noticed the accused was wearing skin tight pajami (inner) beneath his pant. Then the accused was directed to remove his pant and said Inspector found that both the legs at the point of thighs were tied with red cloth strings Ext.P2 to Ext.P5 and both the leggings were also tied below the knee. On opening the strings, police recovered 1.200 Kilograms of Charas (Ext.P6) in the shape of sticks. (iv) The recovered Charas was put in a polythene packet and was wrapped in a cloth parcel Ext.P1 and the whole recovered stuff was sealed with seal impression ‘H’ at six places. Seal impression was also taken on a piece of cloth vide memo Ext.PW1/D. Photographs Exts.P7 to P13 of entire proceedings were taken on the spot whereas photograph Ext.P14 was taken in the Police Station. (v) Inspector aforesaid also filled in relevant columns of NCB forms in triplicate one of which is Ext.PW2/D. The facsimile of the seal used on the spot was also put on the NCB forms and the case property was taken into possession vide memo Ext.PW1/C. One copy was supplied free of cost to the accused. (vi) A Ruqa Ext.PW9/A was sent for the registration of the case through PW1 HHC Tek Chand to Police Station concerned, which culminated into FIR Ext.PW8/A. (vii)The accused was arrested. (vi) A Ruqa Ext.PW9/A was sent for the registration of the case through PW1 HHC Tek Chand to Police Station concerned, which culminated into FIR Ext.PW8/A. (vii)The accused was arrested. He was informed about the ground of arrest vide memo Ext.PW9/C. (viii)Special report Ext.PW4/A was also prepared and sent by the Investigating Officer within the statutory time to Additional Superintendent of Police, Kullu.(ix)The Investigating Officer deposited the case property alongwith NCB forms in triplicate in the Malkhana with PW2 MHC Uttam Chand, which was duly entered by him in the Malkhana register. (x)On 4.12.2009, he handed over the sample parcel Ext.P1 sealed with seal of impression ‘H’ at six places, through PW3 C. Narender Kumar alongwith specimen impression of seal ‘H’,copy of the FIR, copy of seizure memo and NCB forms in triplicate vide Road Certificate No.146/2009 after filling upon the column No.12 of the NCB forms. Case property was deposited in the laboratory on 5.12.2009 and he obtained the receipt on the Road Certificate, which was further deposited by him with MHC aforesaid on his return to the Police Station on 6.12.2009.(xi) Sample in the Laboratory was tested by PW7 Kapil Sharma, Assistant Director, NDPS Division of the State Forensic Science Laboratory Junga, which tested positive for Charas. The report is Ext.PA. 5. Statements of the witnesses were recorded and after completing the investigation of this case, challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted for the offence aforesaid to which he pleaded not guilty and claimed trial. 6.Prosecution examined its witnesses and theaccused was also examined under Sections 313 of the Code of Criminal Procedure. During the trial, his case was that he has been falsely implicated in this casebeing outsider, but when called upon to enter into his defence, no evidence in defence was led. 7. After appreciating the evidence on record and law involved in this case, learned trial Court convicted and sentence the accused as aforesaid, hence the present appeal. 8. Shri Raman Sethi, learned counsel for the accused vehemently argued that the Investigating Officer did not join the independent witnesses in the case and statements of the official witnesses are contradictory so far as the recovery is concerned. 8. Shri Raman Sethi, learned counsel for the accused vehemently argued that the Investigating Officer did not join the independent witnesses in the case and statements of the official witnesses are contradictory so far as the recovery is concerned. Photographs as per evidence on record were clicked around 4 or 4.30 p.m. whereas FIR was lodged 6.15 p.m. in that event the FIR number on Photograph Ext.P14 should not have been mentioned. He also tried to capitalize from the statement of PW4 HC Harbans Kumar that the special report Ext.PW4/A, which is alleged to have been sent by the Investigating Officer to the Additional Superintendent of Police, was entered in the relevant register at Sl.No.90, whereas, the report shows that on the top of it Serial number was mentioned as 80. Lastly, he pointed out that the Road Certificate (RC) does not refers the sample seal used on the spot having been sent alongwith sample for comparison, therefore, conviction and sentence passed against the accused is bad in law. 9. Contra, Shri A.K.Bansal, learned Additional Advocate General while supporting the impugned judgment of conviction and sentence submitted that from the perusal of the evidence on record, it transpires that the place of alleged recovery was secluded place and was not inhabited area and further that the independent witnesses were not immediately available. There is no material contradiction. Also that since the recovery was from an open place, there was no requirement for the compliance of sub Section (4) of Section 100 of the Code of Criminal Procedure. He also pointed out that the photographs taken on the spot were developed at a later stage and by that time FIR was lodged and known, therefore, mentioning FIR number on the photograph Ext.P14 is not fatal to the prosecution case. He also ventilated that the requirement of Section 57 of the Act for sending the special report is within 48 hours. Not making or wrong entry in the register, to whom it is addressed, causes no prejudice to the accused, this provision which is only directory and does not shake the very fabric of the prosecution case. He also submitted that the recovered stuff was taken by PW3 C. Narender Kumar for analysis alongwith the NCB forms which contained facsimile of the seal and it was certified by the Chemical Examiner that it tallied with the parcel to be examined. He also submitted that the recovered stuff was taken by PW3 C. Narender Kumar for analysis alongwith the NCB forms which contained facsimile of the seal and it was certified by the Chemical Examiner that it tallied with the parcel to be examined. Therefore, there is no requirement of sending separate seal taken on a piece of cloth and identity of the sample so analyzed stood properly appreciated. 10. I have given my thoughtful consideration to the rival contentions of the parties. Before replying the aforesaid points, I shall give the brief resume of the evidence on record. 11. PW9 Inspector/SHO Lal Singh was posted at the relevant time at the Police Station Banjar. He categorically stated about that he alongwith police party proceeded towards Fagupul where they put a Naka on 3.12.2009, around 4 p.m. To this effect, he proved Entry Ext.PW5/A made in the Roznamcha. He further testified that the accused was noticed coming from Banjar side wearing Khakhi Jacket and dark grey Pant and on seeing the police, he got perplexed. He was nabbed and his identity asked. He was a person from Haryana State and identified him during the trial of the case. Further according to him the accused could not satisfactorily disclose about the reasons of his presence in the said area. His activities developed suspicion in his mind that he might have been in possession of some contraband, as such, he was apprised of his right to be searched before the Magistrate or a Gazetted Officer, but the accused opted to be searched before the police present on the spot and he conducted the search of the accused by frisking and he found that he was wearing black legging beneath his pant. Accused was directed to remove his Pant. When the Pant was removed, both legs of the accused were found to be tied at two places with red strings. When those strings were opened, Charas was recovered and on its weighment, it turned to be 1.200 kilograms. The entire recovered stuff was made into parcel alongwith four red cloth strings and sealed with seal impression ‘H’. Its impression was also taken on a separate of cloth. When those strings were opened, Charas was recovered and on its weighment, it turned to be 1.200 kilograms. The entire recovered stuff was made into parcel alongwith four red cloth strings and sealed with seal impression ‘H’. Its impression was also taken on a separate of cloth. He filled in NCB forms and the facsimile of the seal was also put on that against relevant column and the case property was taken into possession vide memo Ext.PW1 /C. During the trial, he also identified the Charas as alleged to have been recovered and this fact stand corroborated by PW1 HHC Tek Chand. PW9 further stated to have deposited the case property in the Malkhana with PW2 MHC Uttam Chand and Uttam Chand testified about its making entry in the Malkhana and further stated that the Investigating Officer aforesaid also deposited the specimen impression of seals used on the spot, copy of FIR and copy of seizure memo, NCB forms in triplicate alongwith case property and on the next day, i.e. on 4.12.2009, the entire stuff alongwith aforesaid documents was sent through PW3 C. Narender Kumar after filling up the column No.12 of the NCB form, to which he deposited in the Laboratory on 5.12.2009 and obtained a receipt Ext.PW2/A on the Road Certificate Ext.PW2/B. He also produced and proved the abstract of the register Ext.PW2/C and further proved the NCB forms Ext.PW2/D. According to him, document Ext.PW2/C was correct as per original brought by him in the Court and further testified that so long as the case property remained with him, it remained intact. PW3 C. Narender Kumar also stated that after taking the case property vide R.C. he had deposited the same in the Laboratory on the said date. 12. Even PW7 Shri Kapil Sharma, Additional Director, NDPS Division of the FSL, Junga stated that one sealed cloth parcel alongwith the letter of the SHO concerned dated 4.12.2009(Ext.PW7/A) duly accompanied by a zerox copy of FIR, seizure memo, NCB forms in triplicate and sample of seal were received from C.Narender Kumar on the same day vide RC, copy of which is Ext.PW2/B. He further testified that the said parcel was having six seals of ‘H’, which was found intact and tallied with the seal fixed by the SHO. This seal also tallied with the facsimile of the seal found on NCB form Ext.PW2/D. Further according to him parcel was kept by him in his own safe custody till its analysis and the report. He had also signed the NCB forms aforesaid having received. In cross-examination, nothing material could be extracted. 13. Further, though in the statement of PW1 HHC Tek Chand it has come that village Bhinali was situated at a distance of 500 meters from the place where the police was present, but expressed his innocence about the number of houses therein. He could not also tell the exact distance of village Manglore from the place of recovery and also the Investigating Officer has stated that the independent witness could not have been associated in the proceeding however efforts were made by him, but he further testified that delay could have been fatal to the prosecution. Since it was a chance recovery from a place i.e. a motorable road, therefore, non-association of the independent witness in the instant case is neither a requirement of law nor fatal to the prosecution case. 14. Insofar as the mentioning of the FIR number on Photograph Ext.P14 is concerned, this photograph appears to have been taken in the Police Station after the entire proceedings, however, the other photographs which were taken on the spot at 4.30 p.m. were developed at a later stage when even the FIR was lodged, therefore, mentioning of the FIR number on the photograph aforesaid is not fatal. 15. So far as the compliance of Section 57 of the Act is concerned, perusal of the said section only says about sending of special report to the Officer superior within 48 hours, but it does not say that it should have been received by him within 48 hours. There is no evidence on record that the said report was not sent within the statutory time. Merely mentioning serial number on the report which is different from the entry in the register will not make it inadmissible in evidence, also for the reasons that this provision is only directory and even the non-compliance thereof is not fatal to the prosecution without having shown any prejudice to the accused. 16. The last point taken by the learned counsel for the accused is that of non-sending of the sample seal alongwith the recovered stuff for analysis. 16. The last point taken by the learned counsel for the accused is that of non-sending of the sample seal alongwith the recovered stuff for analysis. As already stated above, there is overwhelming evidence showing sending of seal alongwith parcel to the FSL and this fact also stands testified by the Kapil Sharma Chemical Examiner in his statement and he is the person, who had kept the sample after receipt in his office and till its examination and preparation of the final report, the entire stuff tested positive for Charas and as per his report, the resin contents of the Cannabis plant were 26.76 % in the whole stuff and the offensive article comes to 321 grams for which he was convicted and sentenced as aforesaid. Therefore, for the aforesaid detailed reasons, I do not find any error in the judgment of conviction and sentence of the learned trial Court, as such, appeal is dismissed. 17. The matter stands disposed of, so also the pending applications, if any. Send down the record.