Hon'ble SHARMA, J.—This appeal has been filed by the appellant against the judgment and order of conviction and sentence dated 27.9.2007 passed by Special Judge, NDPS Act Cases (Additional Sessions Judge No. 1) Kota in Special Sessions Case No. 15/2004, arising out of FIR No. 79/2004 of Police Station GRP, Kota convicting the accused appellant under Sections 8/18 of the NDPS Act, 1985 and sentencing him to 10 years' rigorous imprisonment with Rs. 1 lac fine in default thereof to suffer one year's rigorous imprisonment. 2. Brief facts as per the case of the prosecution is that on a telephonic message from PW.1 Constable Jainarain and PW.5 Constable Om Prakash who were on patrol duty, PW.6 Pooran Mal, Sub Inspector in charge of Police Station GRP Kota, reached near the First Class Gate opposite the RPF Booth, where the constables had detained accused appellant sultan, on suspicion of carrying contraband in his bag. He carried along a kit for the identification of narcotics. PW.5 is the main witness to the search and seizure of the contraband stated to weigh 2 kg. 300 gms. and its deposit thereafter in the Malkhana of the Police Station. Pooran Mal thereafter submitted a written report Ex. P.11 before the SHO, Police Station GRP, Kota Junction, to the effect that he had proceeded to the site on receipt of a telephonic message from PW.1, that he along with PW.5 had detained a suspect named Sultan, resident of Mandsaur in MP on suspicion of carrying contraband, and for him to reach the site with the requisite kit for effecting search and seizure. He further stated in his report that after giving the option to the suspect for getting himself searched in the presence of a Magistrate or a gazetted officer, or by himself, the suspect gave the option of being search by PW.6 Pooran Mal. Efforts were made to procure independent witnesses, but none being available, two of the police staff were made independent witnesses. The police on the basis of this written report registered an FIR No. 79/04 dated 12.4.2004 for the offences under Sections 8 read with Section 18 of the NDPSD Act, 1985 and arrested the accused appellant. The weight of the seized article was stated to be 2 kg. 300 gms. including the packing material. The police on the basis of this written report registered an FIR No. 79/04 dated 12.4.2004 for the offences under Sections 8 read with Section 18 of the NDPSD Act, 1985 and arrested the accused appellant. The weight of the seized article was stated to be 2 kg. 300 gms. including the packing material. After usual investigation, the Police submitted challan against the accused appellant in the court of Special Judge, NDPS Cases, Kota. The trial court framed the charges against the accused appellant, who denied the same and claimed trial in the matter. The prosecution examined 10 witnesses and produced many documents. In defence one witness Diwan Singh DW-1 was produced and examined. The trial court after hearing both the parties came to the conclusion that the accused was guilty as charged and vide judgment dated 27.9.2007 sentenced him to undergo 10 years rigorous imprisonment and to further pay a fine of Rs. 1 lac, in default whereof to further suffer imprisonment for one year. Against this judgment this appeal has been preferred by the accused appellant. 3. Mr. Amarjit Singh Narang, learned counsel appearing for the accused appellant argued that the judgment of conviction and sentence has been passed by the trial Court without taking into consideration the facts and circumstances of the case, material available on record and the legal aspect of the matter. The prosecution has suppressed the true version and the genesis of the occurrence. From a perusal of the FIR and the case of the prosecution it accused appellant. The whole case of the prosecution is false and concocted. The trial court has not specifically dealt with the evidence in the light of the statements of the prosecution witnesses and the material available on record. The trial Court randomly discussed the evidence and tried to show that the case has been proved against the accused appellant. There is no evidence available on record that the accused appellant had changed his seat in the railway carriage and shifted to another cabin within the same bogey on seeing the policemen PW.1 and PW.5 in uniform, as they were not wearing their police dress at the time they had left the Police Station for going on patrol duty. There is no evidence available on record that the accused appellant had changed his seat in the railway carriage and shifted to another cabin within the same bogey on seeing the policemen PW.1 and PW.5 in uniform, as they were not wearing their police dress at the time they had left the Police Station for going on patrol duty. The learned counsel has argued that had they been in police dress, there was nothing much to be gained for the accused appellant in going from one to another cabin in the same bogey. The trial court has not properly considered this aspect of the case that the questions under Section 313 Cr.P.C. were not put on the basis of which the accused appellant has been convicted. The trial Court has on the basis of conjecture and surmise that the policemen may possibly have changed into their uniform dress while at the station, while there is no such testimony from the constables PW.1 and PW.5 themselves. The trial court has failed to note the glaring discrepancy, wherein at entry No. 693 at 7.30 a.m. in Roajnamcha, constable Om Prakash Jainarain and Sahib Singh are shown to have proceeded for patrol duty in plain clothes. There is also a discrepancy in the stated age of the accused appellant, which in the Ex. P.14 is 20 years, and his address is given as resident of Manpura (M.P.) and in the hand written reproduction of the said entry, Ex. P.14 A is stated to be 30 years and his address is given as resident Manpura Distt. Mandsaur (M.P.) The prosecution has given the benefit of doubt to the prosecution instead of to the accused. A bare perusal of the judgment of conviction and sentence it is clear that the trial court has not properly considered the statement of the defence witness. The trial court has neither properly appreciated nor critically examined the statements of the prosecution witnesses and failed to consider those part of their statement, which are favourable to the accused appellant. A bare perusal of the judgment of conviction and sentence it is clear that the trial court has not properly considered the statement of the defence witness. The trial court has neither properly appreciated nor critically examined the statements of the prosecution witnesses and failed to consider those part of their statement, which are favourable to the accused appellant. The learned counsel has placed reliance on 2005 Cr.L.J. 33 Balu vs. State of Rajasthan, 2007 (24) Criminal CC 671 Ashok vs. State of Rajasthan, S.B. Criminal Appeal No. 374 of 2001 Raju Munim vs. State of Rajasthan decided on March 2, 2006, AIR 2012 SC 1619 = 2012(2) RLW 1706 (SC) Myla Venkateswarlu vs. State of Andhra Pradesh (Criminal Appeal No. 611 of 2012 decided on 4.4.2012) 2011 RCC (SC) 683 = 2011(3) RLW 1964 (SC) Narcotics Central Bureau vs. Sukh Dev Raj Sodhi, (2011) 1 SCC 609 Vijay Singh Chandubha Jadejs vs. State of Gujarat (Criminal Appeal No. 943 of 2005 decided on 29.10.2010. 4. The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that Narcotic Substance was recovered from the bag of the accused appellant. The trial court rightly convicted and sentenced the accused appellant. The findings arrived at by the trial court are just and proper. The trial court critically examined the material available on record and judgment of conviction is based on evidence and the accused appellant has been rightly convicted and sentenced. 5. I have heard the learned counsel for the parties and gone through the entire record. I may first look into the rulings cited by the learned counsel for the appellant. In S.B. Cr. Appeal No. 241 of 2002 Balu vs. State of Rajasthan, (Manu/RH/0103/2004) (RLW 2004 (3) Raj. 1756), the Single Judge of this Court while discussing the provisions of section 50 of the NDPS Act, held that section 50 applies to the personal search. Anything carried by the suspect in his hands, shoulder or head would also be on his person. In that case the appellant was alleged to carry plastic bag on his shoulder it was essential for the SHO to scrupulously follow the legislative safeguards contained in section 50. Anything carried by the suspect in his hands, shoulder or head would also be on his person. In that case the appellant was alleged to carry plastic bag on his shoulder it was essential for the SHO to scrupulously follow the legislative safeguards contained in section 50. In Criminal Appeal No. 394 of 1988 2007 (24) Cr.CC 671, it was held by the Single Judge of this Court that the non production of the recovered articles which is the basic proof of commission of offence, can be termed not only a procedural irregularity under section 465 Cr.P.C. but also it is fatal to the prosecution with regard to establishing the identity of a thing. In Raju Munim vs. State of Rajasthan S.B. Criminal Appeal No. 374 of 2001 decided on March 9, 2006 it was held by the Single Bench of this Court that two constables who were made witnesses in the case were subordinate to IO, therefore it cannot be said that the recovery of contraband was free from all doubts and in these circumstances, the accused appellant was given benefit of doubt. In the case of Myla Venkateshwarlu vs. State of Andhra Pradesh on account of breach of section 50 of the NDPS Act, the Apex Court acquitted the accused who has approached the Apex Court but also the accused who have not approached the Apex Court. In Narcotics Central Bureaua vs. Sukh Dev Raj. Sodhi (2011) RCC (SC) 683), the Apex Court on account of non-compliance of section 50 of the NDPS Act, acquitted the accused and it was held that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate. Vijaysingh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609 , is also a case with regard to the non-compliance of Section 50 of the NDPS Act the Apex Court (Five Judge Bench) while answering the reference held that in the first instance an endeavour should be to produce the suspect before the nearest magistrate, who enjoys more confidence of the common man compare to any other officer. It would not only be legitimacy to the search proceedings, it may verily strengthen the prosecution as well. It would not only be legitimacy to the search proceedings, it may verily strengthen the prosecution as well. It may be mentioned that the incident in the present case took place on 12.4.2004 and the judgment of the Apex Court (Five Judge Bench) in Vijaysingh Chandubha Jadeja vs. State of Gujarat (supra) is a dictum of the year 2011 and it cannot be applied retrospectively. But the Apex Court in Balbir Singh's case (1998) 2 SCC 724 after referring to a number of judgments, opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. 6. On the basis of the above conclusions of their Lordships of the Supreme Court, it is necessary to have a look at the evidence adduced and documents exhibited before the trial Court by the prosecution and it is also necessary to see whether any prejudice was caused to the accused for violation of the provisions of NDPS Act as pointed out by the learned counsel for the appellant. PW.1 Jainarain Constable No. 486 in his statement stated as under: ^^esa o vkseizdk'k ua- 513 x'r psafdx djrs gq, vk jgs Fks eksMd jsyos LVs'ku ls ge nksuksa ihNs ds tujy dksp x'r psafdx gsrq p<+s rks ge pSd dj jgs Fks ,d O;fDr ge dks ck onhZ ns[kdj lhV NksM+dj nwljh dsfcu esa tkdj cSB x;k mlh fMCcs dh pyrh Vªsu esaA gedks ml ij 'kd gqvk rks o nwljh dsfcu esa tkdj cSBus dk rFkk lhV NksM+us dk dkj.k iwNk rks larks"ktud tokc ugha fn;kA mldk uke irk iwNk rks viuk uke lqYrku vkRet uanjke tkfr pekj fuoklh ekuiqjk eUnlkSj gksuk crk;k FkkA ftlls cSx ds ckcr lkeku ds ckjs esa iwNk x;k rks mlus larks"ktud tokc ugha fn;k o mlls ?kcjkus dk dkj.k iwNk rks mldk Hkh larks"ktud tokc ugha fn;kA bl ij gedksa iwjk 'kd gksus ds dkj.k mlds csx esa dksbZ eknd inkFkZ gks ldrk gS rks mls dksVk jsyos LVs'ku IysVQkeZ ij mrkj fy;k mrkj dj QLV Dykl xSV vkj-ih-,Q- cwFk ds ikl fcBk;s j[kk eSus th-vkj-ih- Fkkuk dksVk ij t;sZ jsyos VsyhQksu ,l-vkbZ- Jh iwj.key 'kekZ dks bl ckr lwpuk nh bl ij os djhc 15 feuV ckn crk;s LFkku ij e; vuqla/kku lkexzh ds vk x;sA** This witness thereafter stated that SI Pooranmal sent Om Prakash constable to bring independent witnesses and a written tehrir was given to him. Om Prakash returned after 15-20 minutes and stated that no witness was available. Om Prakash returned after 15-20 minutes and stated that no witness was available. PW.1 Jainarain further stated thus: ^^bl ij Fkkusnkj th us 'k[l lqYrku ls dgk fd vki viuh ryk'kh o vkids lkeku dh ryk'kh fdlh eft- ;k jktif=r vf/kdkjh }kjk fyokus pkgrs gS ;k esjs }kjk bl ij 'k[l us viuh ryk'kh gsrw fyf[kr esa ,lvkbZ iwj.k ey }kjk gh ryk'kh ysus dh lgefr nh FkhA uksfVl 50 ,uMhih,l dh gekjh vkfQl izfr izn'kZ ih-1 gS ftl ij , ls ch esjs lkbZu gSA lh ls Mh eqfYte ds lkbZu gS b ls ,Q eqfYte dh fy[kkoV gSA geus Fkkusnkj dh ryk'kh yh ftl ij muds ikl ,slh dksbZ lafnX/k oLrq ugha feyh fQj Fkkusnkj lkgc us lqYrku ds gkFk esa tks uhys jax dk csx Fkk mldh psu [kksydj ns[kk rks iguus ds diM+s ds vykok uhps ,d gYds gjs jax dh iksfyFkhu dh Fksyh feyh ftldks [kksydj ns[kk rks mlds vUnj ,d ikjn'khZ ikfyFkhu dh Fksyh feyh ftlesa xgjs Hkwjs jax dk eknd inkFkZ xhyk Hkjk gqvk FkkA** The witness thereafter stated that they prepared Ex. P.2 seizure memo and brought the accused to the Police Station. Arrest memo and Jama Talasi of accused Ex. P.3 was also prepared which bears his signature A to B. After arrest the notice under Section 50 of the NDPS Act was sent, which also bears his signature A to B. PW.2 Rajpal Singh Constable No. 239 GRP Neem Ka Thana stated that as per the orders of SHO Laxminarain in case No. 79/04 he went to SP office regarding information of section 42 of the NDPS Act to the SP. He handed over the said information personally to superintendent of Police and brought back the receipt No. 19 and deposit the same to the Head Mohrir Nenvakhan. PW.3 Mal Singh Constable No. 576 stated that on 12.4.2004 he was posted at GRP Kota as constable. On that day at Police Station Om Prakash and Jainarain, constables informed over telephone that a suspected person is found and he identified himself to be Sultan and one Bag containing narcotic drug is with him. On this information SI Pooranmal prepared a memo Ex. P.5 which bears his signature. PW.4 Mahendra Singh Constable No. 268 Police Station GRP Kota stated that on 15.4.2004 in the night at 11.30 p.m. SHO gave him seized material to be sent to FSL for examination. On this information SI Pooranmal prepared a memo Ex. P.5 which bears his signature. PW.4 Mahendra Singh Constable No. 268 Police Station GRP Kota stated that on 15.4.2004 in the night at 11.30 p.m. SHO gave him seized material to be sent to FSL for examination. To which he collected packet Market A1 from Head Mohrir Nenwakhan. On 15.4.2004 at 11.30 a.m. SHO gave him a forwarding letter to be given to the SP Ajmer containing the sample and letter. He reached SP office along with the said material and received forwarding letter from the SP to handover the material to the FSL Jaipur. On 17.4.2004 he reached FSL with the material and handed over the same to which he received receipt and the receipt was handed over to the Incharge Police Station. He stated that SHO handed over him the letter Ex. P.6 on record and thereafter SP forwarded the letter to the FSL which is Ex. P.7 and receipt of FSL is Ex. P.8. PW.5 Om Prakash constable at GRP Kota stated about the version which was given by the PW.1 Jainarain, constable and he supported his statement. He has reiterated the story given by PW.1 in his statement. He admitted that SI Pooranmal gave him a note to bring independent witnesses and he returned back without any independent witnesses. Ex. P.9 which is a request of SI, he put his writing on it A to B and this also bears his signature C to D. SI further gave a notice under Section 50 to Sultan to be searched by a Magistrate or a Gazetted officer upon which Sultan stated to be searched by the SI himself. Thereafter on finding narcotic drug with Sultan the same was seized and seizure memos were prepared which bears his signatures. This witness was interrogated about one Shelu Seth to which he refused. He stated in his statement as under: ^^;g dguk xyr gS fd eSaus ml dksp esa lqYrku dks u idM+dj 'ksyw lsB dks idM+k gks vkSj mDr csx o diM+s 'ksyw lsB ds gksA ;g dguk xyr gS fd geus 'ksyw lsB dks NksM+ fn;k gks vkSj lqYrku dks >waBk Qalk fn;k gksA PW.6 Pooranmal Sharma, SI GRP Kota in his statement before the court stated that while working as SI he received telephonic call at 3.40 p.m. from Constable Jainarain from Railway Station Kota. Rapat of information is done in the Rojnamcha which is Ex. P.14, copy of which is Ex. P.14 A. Information under Section 42 of the NDPS Act was sent to higher officers vide Ex. P.5 which bears his signature J to J. Ex. P.15 is sent to S.P. Ajmer which bear his signature A to B. Ex. P.16 is Ravangi Rapat of Rajpal, copy of which is Ex. P. 16 A. The witness and Jagdish narcotic test box reached at the spot. Rapat of which is Ex. P.17 and copy of it is Ex. P.17 A. At 4.00 p.m. they reached at Plat Form No. 1 RPF Booth where they found Constables Jai Narain and Om Prakash with suspected person, whose name was disclosed as Sultan he was having blue bag with him. Om Prakash Constable was sent by him for bringing two independent witnesses. Ex.P.9 is the original letter given to the Constable where he put his signature E to F. Constable reported that no independent person is available which is written by him A to B. He put his signature C to D. G to H rapat was written by him on this letter and it bears his signature I to J. Notice under Section 50 of the NDPS Act was given to the suspected person over which he was informed that he has a right to be searched by a Gazetted officer or Judicial Magistrate to which he replied in writing Ex. P.1 that he wants to be searched by the SI (witness himself.) Over which in written Sultan wrote E to F and put his signature C to F. PW.7 himself asked the independent person to search him and they found nothing with him and thereafter PW.7 searched the suspected person and his bag. He found opium with him which was tested and weighed and found to be 2 kg. 300. Two samples were taken from it A1 and A2. Rest of the material was sealed in bag as Article B. Upon this case under 8/18 of the NDPS found to be made out. One Railway Ticket from Modak to Kota was found with him and cash Rs. 30/- were also found. Section 50 notice was also found with him. Seizure memo Ex. P.2 was prepared which bears K to L his signature. Arrest memo and seizure memo Ex. One Railway Ticket from Modak to Kota was found with him and cash Rs. 30/- were also found. Section 50 notice was also found with him. Seizure memo Ex. P.2 was prepared which bears K to L his signature. Arrest memo and seizure memo Ex. P.3 was prepared which bears his signature G to H. Railway ticket is Ex. P.18 Amad rapat is Ex. P. 19 copy of which is Ex. P.19 A. Articles were again sealed in the police station. Seizure memo Ex. P.2 and Karyawahi Police bears signature of SHO K to L. FIR Ex. P.11 was prepared which bears his signature C to D. On the instructions of the SHO Kesar Singh prepared Naksa Moka Ex. P.10. For becoming Incharge of the Police Station Rojnamcha is Ex. P.20 copy of which is Ex. P.20 A. Laxminarain SI went out side to which Rapat Ex. P.21 and copy of it is Ex. P.21 A. Mahendra Singh was sent to FSL and Rapat of which is Ex. P. 22 and copy of it is Ex. P. 22 A. Sending of Rajpal to supply information under section 42 NDPS rapat is Ex. P. 23 and copy of which is Ex. P. 23 A. Mahendra Singh came back and put his rapat in the Rojnamcha. Ravanagi of Constables Om Prakash and Jainarain for duty is Ex. P.25 and copy of which is Ex. P.25 A. FSL report is Ex. P.24. PW.7 Jagdish Prasad, constable No. 918 GRP Kota supported the prosecution case. He has reiterated the version given by other police constable who were along with him at the time of patroling and thereafter finding the accused in suspicious condition and thereafter investigation in the case. He admitted his signature on Ex. P.2 seizure memo. He also admitted his signature on Ex. P.3 arrest memo and jamatalasi. He also admitted about Ex. P.5 information under section 42 NDPS wherein his puts his signature C to D. Naksa Moka Ex. P.10 was prepared before him wherein his puts his signature A to B. PW.8 Laxminarain, SI GRP Kota in his statement stated that he was posted as SHO GRP Kota on 12.4.2004. Pooranmal SI appeared before him with complete Jabta and produced accused Sultan along with arrest memo of accused Sultan with all papers. P.10 was prepared before him wherein his puts his signature A to B. PW.8 Laxminarain, SI GRP Kota in his statement stated that he was posted as SHO GRP Kota on 12.4.2004. Pooranmal SI appeared before him with complete Jabta and produced accused Sultan along with arrest memo of accused Sultan with all papers. He drawn the Karyawahi Police over which he put his signatures A to B. C to D is signature of Pooranmal Sharma complainant. Investigation of the case was handed over to SI Kesar Singh. Other formalities in the case were also completed by him of informing the relatives of the accused and sending the relevant papers to the higher officials. PW.9 Kesar Singh, as on 12.4.2004 he was posted as SHO in Police Station GRP Kota. In his statement he stated thus: ^^12-4-2004 dks esa Fkkuk thvkjih dksVk ij ,lvkbZ ds in ij FkkA ml fnu Fkkukf/kdkjh y{ehukjk;.k th us eq-u- 79@04 /kkjk 8@18 ,uMhih,l ,DV dh i=koyh eq>s vuqla/kku gsrq lqiqnZ dh Fkh ftlesa QnZ psfdax o tCrh eknd inkFkZ vQhe] uksfVl /kkjk 50 ,uMhih,l ,DV] /kkjk 42 dh lwpuk] rych xokg dk uksfVl] QnZ fxjrkjh eqyfte lqYrku esjs lqiqnZ dh Fkh rFkk eqyfte ls tCn'kqnk jsy fVfdV Hkh dkxtkr ds lkFk lqiqnZ fd;k FkkA esjs }kjk nkSjku vuqla/kku xokg loZ Jh iwj.key ,lvkbZ] vkse izdk'k dkfu] t;ukjk;.k dkfu- txnh'k izlkn dkfu-] egsUnz flag dkfu-] usuok[kak ,plh] ds c;ku dFkukuqlkj fy;s x;sA** He further stated that he sent the article marked A1 to FSL Jaipur through SRP Ajmer and acknowledgement receipt was also enclosed by me in the file and all the Rapat Rojnamcha etc. entries were produced by me in the court. Naksa Moka Ex. P.10 was also prepared by him which bears C to D his signatures on two pages. A to B s signature of Jagdish, E to F is signature of Lalaram witness and G to H is signature by Pooranmal Sharma. PW.10 Nenvakhan, Malkhana Incharge in his statement stated that on 12.4.2004 he was posted as Malkhana Incharge in PS GRP Kota. On that day in case No. 79/04 for the offence under Sections 8/18 NDPS Act, the sealed four articles A, A1, A2 and B were deposited in malkhana to which entries were made by me in the Malkhana Register Ex. P.13 wherein A to B is regarding entry of articles and C to D is his signature. On that day in case No. 79/04 for the offence under Sections 8/18 NDPS Act, the sealed four articles A, A1, A2 and B were deposited in malkhana to which entries were made by me in the Malkhana Register Ex. P.13 wherein A to B is regarding entry of articles and C to D is his signature. The articles were sealed. On 14.4.04 the article marked as A1 was sent for examination by FSL through Constable Mahendra Singh to which he made entry Ex.P.13 to which he made signatures C to D, G to H is signature of constable Mahendra Singh. On 20.4.2004 Mahendra Singh deposited the article in the FSL and obtained the receipt to which entry in Ex. P.13 was made by him from I to J and C to D is his signature and G to H is signature of Mahendra Singh Constable. In the cross examination the witnesses have reiterated what has been stated by them in the examination in chief. I have gone through the cross examination of all the witnesses. I do not find any thing prejudicial to the case of the prosecution. In the statement under Section 313 Cr.P.C. accused appellant stated that he is innocent. In his statement he stated thus: ^^eSa dksVk vk jgk Fkk ,d cSx ykokfjl gky esa cSap ds uhps iM+k Fkk eq>s 'kd ds vk/kkj ij idM+ fy;kA esjs ikl ls dksbZ vQhe cjken ugha gqbZ gS eq>s >waBk Qalk;k x;k gS** The statement of defence witness Diwan Singh is not on the record of the trial Court. Looking to this fact, this court on May 14, 2013 sent a request letter through the Deputy Registrar (Judicial) requesting the trial court to arrange for the statement of defence witness Diwan Singh, which is not on the record. The trial court vide letter dated 16.5.2013 informed to the Deputy Registrar that the same is at present not available with the staff and they are tracing the same and as soon as it is traceable the same shall be sent to this court. In the written note supplied by the counsel for the accused appellant it has been brought to the notice of this Court that the statement of DW.1 Diwan Singh not received back from the SC. In the written note supplied by the counsel for the accused appellant it has been brought to the notice of this Court that the statement of DW.1 Diwan Singh not received back from the SC. In these circumstances, this court has no option but to look into the findings of defence witness given by the trial Court in the impugned judgment. In these circumstances, this court has no option but to look into the findings of defence witness given by the trial Court in the impugned judgment. The same read as under: ^^51- vc lokZf/kd egRoiw.kZ iz'u ;g Hkh mRiUu gksrk gS fd D;k vfHk;qDr i{k dh izfrokn dgkuh ds vuqlkj ?kVuk ds fnu ftl jsy ds fMCcs esa vfHk;qDr dks lafnX/k voLFkk esa cSax lfgr idM+k x;k] esa D;k cjken'kqnk cSx fdUgh lsyw lsB dk Fkk\ bl lk{kh us dFku fd;k gS ml fnu og xjksB LVs'ku ls dksVk etnwjh djus ds fy, Vªsu ls vk jgk FkkA lqYrku Hkh mlds lkFk FkkA lsyw lsB Hkh mlh fMCcs esa cSBk FkkA iqfyl okys ml fMCcs ds vUnj vk;sA ftl txg Vªsu esa lsyw lsB cSBk Fkk mlds uhps lhV ds uhps ,d cSx j[kk Fkk ftl iqfyl okyksa us pSd fd;k vkSj dgk fd ;g cSx fdldk gSA bl ij mlus crk;k Fkk fd ;g mldk ugha gSA cSx ysdj iqfyl okyksa us lsyw lsB o lqYrku dks ?ksj fy;kA lsyw lsB us dgk Fkk fd ;g cSx mldk gSA fQj lsyw lsB o lqYrku dks Vªsu ls uhps mrkj fy;kA fQj iqfyl us iSls ysdj lsyw lsB dks NksM+ fn;k vkSj lqYrku dks 'kd ds vk/kkj >waBk idM+k gSA 52- Mh-M- 1 nhokuflag ds dFkukuqlkj cjkenlqnk cSx Vªsu dh uhps dh lhV ds uhps j[kk FkkA ;g lsyw lsB dk FkkA xokg ds vuqlkj iqfyl us lsyw lsB dks iSls ysdj NksM+ fn;k o lqYrku dks 'kd ds vk/kkj ij >waBk Qalk fn;kA ;gka ;g mYys[kuh; gS fd ;fn iqfyl }kjk lsyw lsB dh txg vfHk;qDr dks >waBk Qalk;k x;k Fkk rks og bl ckcr f'kdk;r mPpkf/kdkfj;ksa dks vo'; djrkA fdUrq mldh vksj ls ,slk drbZ ugha fd;k x;k gSA Mh-M- 01 nhokuflag ds c;ku ,oa lQkbZ i{k ds bl izfrokn ls ;g fl) :i ls lkeus vkrk gS fd mDr cjkenxh LFky ij vfHk;qDr ekStwn FkkA vfHk;qDr ls fdlh izdkj dh jaft'k vFkok nq'euh jgh gks ,slk Hkh lQkbZ i{k lkfcr ugha dj ik;k gSA tgka rd cjkenxh dk iz'u gS & lk{; ds mijksDr foospu ls eSus ik;k gS fd mDr cjken'kqnk cSx ls izkIr eknd inkFkZ ls uewuksa fy;k tkdj tks tkap iz;ksx'kkyk ds ekQZr djok;h x;h] esa vQhe gksuk ik;h x;hA QyLo:i ;g izfrokn fd cSx fdUgha lsyw lsB dk Fkk] fo'oluh; ugha gS rFkk lQkbZ i{k bl rF; dks fl) djus esa vlQy jgk gSA dqy feykdj lk{; ds mijksDr foospu dks /;ku esa j[krs gq, vfHk;kstu }kjk vfHk;qDr ls voS/k eknd inkFkZ dh cjkenxh rFkk mlds i'pkr~ cjken 'kqnk eknd inkFkZ esa ls fudkys x;s lSEiy dks okLrs tkap Hkstus rFkk U;k;ky; esa eky is'k gksus rd dh lHkh lacaf/kr ,oa vko';d ekSf[kd ,oa nLrkosth lk{; izLrqr dh x;h gSA ih-M- iwj.key 'kekZ {kjk vf/kfu;e ds lHkh vkKkid izko/kkuksa dh ikyuk djrs gq, vfHk;qDr ds dCts ls e; ckjnkuk 2 fdyks 300 xzke eknd inkFkZ vQhe cjken gksuk lkfcr gksrk gS ftls j[kus dk mlds ikl dksbZ oS/k vuqKk i= ugha FkkA bl eknd inkFkZ esa ls fy, x;s uewuksa dks lhYM voLFkk esa eky[kkuk esa tek djokuk] eky[kkuk ls lhYM voLFkk esa izkIr dj iqfyl v/kh{kd vtesj ls vxzs"k.k i= izkIr dj iz;ksx'kkyk esa ys tkuk] ogka bl lhYM voLFkk esa tek djokuk o rRi'pkr~ fof/k foKku iz;ksx'kkyk] t;iqj dh tkap fjiksVZ ds vuqlkj mDr eknd inkFkZ dk vQhe gksuk vfHk;kstu i{k }kjk is'k dh x;h lqn`<+ ,oa fo'oluh; o lk{; ls lkfcr gSA ,slk dksbZ rF; mHkj dj lkeus ugha vk;k gS ftlds vk/kkj ij vfHk;qDr dh bl ekeys esa lfyIrrk ds laca/k esa lUnsg mRiUu gks vkSj ;g lUnsg gks fd eqyfte ls cjken fd;s x;s eknd inkFkZ esa ls fudkys x;s lSEiy ds lkFk NsM+NkM+ dh x;h gks vkSj vfHk;kstu dgkuh lUnsgkLin gksA** I have gone through the findings of the trial court in relation to defence witness and I am in agreement with the findings given by the trial court. It is an admitted fact that the accused has not made any complaint to the higher authorities that he has been falsely implicated in the case. It appears that the defence witness version is an after thought. The defence has not been able to prove the case and hence the version of the prosecution is liable to be accepted on this account. 8. The documents produced by the prosecution may also be looked into. Ex.P.1 is notice under Section 50 NDPS Act given to accused appellant Sultan by the Incharge GRP Kota. The same reads as under: ^^vkidks tfj;s uksfVl lwfpr fd;k tkrk gS fd vkids ikl dCts esa j[ks cSx esa eknd inkFkZ gksus fd eq> SI iwj.key 'kekZ I/C Fkkuk GRP dksVk dks fo'oluh; lwpuk feyh gSA bl lEcU/k esa vkids cnu o cSx dh ryk'kh fyokbZ tkuh gSA ;g vkidks vf/kdkj gS fd vki vius cnu o cSx dh ryk'kh fdlh jktif=r vf/kdkjh vFkok fdlh fudVre eftLVªsV ds le{k pydj nsus ds fy, Lora= gSA vki viuk tokc nsosA Sd/- I/C GRPS dksVk 12-4-2004 le; 4-40 P.M. LFkku PF 1 js- dksVk ,d dkih izkIr dh Sd/- lqYrku Jheku th esa esjs cnu rFkk esjs cSx dh ryk'kh vkidks gh nsuk pkgrk gwaA Sd/- lqYrku 12-4-2004** Ex.P.1 A is the original copy of the notice under section 50 given to the accused Sultan, which was recovered from him after Jama Talasi. Ex. P.2 is search and seizure memo prepared by the Incharge on which Karyawahi Police was started by the SHO Laxminarain GRP Kota on 12.4.2004 at 6.30 p.m. Karyawahi Police dated 12.4.2004 at 6.30 p.m. reads as under: ^^izekf.kr fd;k tkrk gS fd SI Jh iwjuey e; gejkgh tkIrk Jh txnh'k izlkn C.No. 918 vkse izdk'k C.No. 513 o t;ukjk;.k No. 486 ds e; fxjrkj 'kqnk eqy- Jh lqYrku SS/o Jh uUnjke tkfr pekj mez 30 lky R/o ekuiqjk Fkkuk ';kex<+ ft- eUnlkSj ¼MP½ ds e; tIr 'kqnk eky isfdV ekdZ A, A-1, A-2 o B 'khy 'kqnk ds is'k dj ;g QnZ tIrh eknd inkFkZ vQhe o eqrhch dkxtkr ls ekeyk tqeZ /kkjk 8@18 NDPS Act dk ?kfVr gksuk ik;k tkrk gSA vr% eqdnek ua- 79@04 /kkjk 8@18 NDPS Act esa ntZ dj rQrh'k SI ds'kj flag ds tqEes dh x;hA izfr;ka FIR fu;ekuqlkj tkjh dh x;hA Sd/- Laxmi Narain SHO GRPS Kota." Ex. P.3 is arrest memo and Jama Talasi of accused Sultan son of Nand Ram in presence of two witnesses Jainarain and Jagdish Prasad. Ex.P.5 is also a carbon copy of the information under Section 42(2) of the NDPS Act. Ex.P.6 copy of the letter dated 15.4.2004 sent to SP Ajmer for forwarding the sample A-1 for examination by the FSL Jaipur. SP GRP Ajmer vide Ex. P.7 forwarded the packets and letter to the FSL Jaipur. Ex. P.8 receipt received from the FSL Jaipur for the articles received by them for examination. Ex. P.9 is original copy of the memo given to Om Prakash Constable No. 513 for bringing independent witnesses. The same reads as under: ^^fo"k; & Lora= xokg ryk'k dj ykus ckcrA mijksDr fo"k; esa vkidks ys[k gS fd lafnX/k O;fDr Jh lqYrku S/o uUnjke tkfr pekj mez 30 lky R/o ekuiqjk PS 'kkex<+ ftyk eUnlkSj ¼e-iz-½ ds cnu o uhys jax ds cSx dh ryk'kh dk;Zokgh dh tkrh gSA vr% vki bl dk;Zokgh gsrq nks Lora= xokg ryk'k dj ykosA Sd/- Incharge GRPS Kota 12.4.2004 at 4.10 p.m. Jhekuth eSaus jsyos LVs'ku dksVk ij o LVs'ku ds vklikl bl dk;Zokgh ds fy, Lora= xokgksa dh dkQh ryk'k dh exj dksbZ Hkh O;fDr ryk'kh dk;Zokgh esa xokg cuus ds fy, rS;kj ugha gqvk ,slh fLFkfr esa Lora= xokg ykus esa etcwjh jgh fjiksVZ is'k gS Sd/- Constable Om Prakash 12.4.2004 at 4.25 p.m. mijksDr uksfVl dh rkehy esa Jh vkse izdk'k No. 513 us fjiksVZ dh gS fd dksbZ Hkh O;fDr xokg cuus dks rS;kj ugha gSA vr% ekStwnk tkIrk esa ls Jh vkse izdk'k o t;ukjk;.k No. 486 dks Lora= xokg eqdjZj fd;kA Sd/- Incharge PS R. Kota at 4.30 p.m." Ex.P. 10 is the Naksa Moka Gatna Sthal at Plate Form No. 1 Railway Station Kota. Ex. P.11 is the FIR bears the signature of Laxminarain SHO GRP Kota. Ex. P. 12 is copy of the letter of the GRP Kota given to the SP GRP Ajmer information in respect of compliance No. 883 and 884. Ex. Ex. P.11 is the FIR bears the signature of Laxminarain SHO GRP Kota. Ex. P. 12 is copy of the letter of the GRP Kota given to the SP GRP Ajmer information in respect of compliance No. 883 and 884. Ex. P.14 A is the copy of the Rapat in the Rojnamcha dated 12.4.2004 No. 717 at 3.40 p.m. Ex.P.15 is the forwarding letter sent to the SP GRP Ajmer b the SHO in respect of compliance of section 42(2) of NDPS Act, Ex.P.16 A is a copy of Rapat dated 12.4.2004 at 6.35 p.m regarding sending of Constable Rajpal No. 239 for sending the report of Section 42(2) NDPS Act to SP GRP Ajmer. Ex. P.17 A is Rapat of Rojnamcha regarding sending of SI Pooranmal Sharma to Platform No. 1 Railway Station with Narcotic examination kit. Ex. P.18 is the original ticket recovered from the accused from Garoth to Kota Junction. Ex. P.19 A is a Majmoon report dated 12.4.2004 No. 726 6.30 p.m. Ex. P.20 A is also photo copy of the register of Majmoon report Ex. P.22 A is also a copy of the Majmoon report No. 879 dated 15.4.2004 at 2 a.m. Ex. P.23 A is also a copy of the Majmoon report No. 820 dated 14.4.2004 regarding sending of constable Rajpal No. 239 for giving information under Section 42(2) NDPS Act to the SP Ajmer. Ex. P.24 is the repost of the FSL. The result of examination of article reads as under: "On chemical examination, the sample contained in the packet marked A-1 gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 4.36% (Four point three six percent) morphine." Ex. P.25 A is also a copy of Majmoon report of sending of Om Prakash and Jainarain constables on patroling duty in the train in SADAVARDI. 9. I have critically examined the judgment of the trial Court, statements of the prosecution witnesses and the documents exhibited by the prosecution in support of its case. The findings arrived at by the trial court are not perverse. The prosecution has been able to prove the chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and thus in my view the judgment of conviction and sentence passed by the trial Court cannot be said to be perverse. The prosecution has been able to prove the chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and thus in my view the judgment of conviction and sentence passed by the trial Court cannot be said to be perverse. The arguments raised by the learned counsel for the appellant cannot help him. The prosecution has been able to prove the prosecution case in respect of compliance of the provisions of the NDPS Act. The documents and the prosecution evidence cannot be disbelieved for the simple reason that no independent evidence was collected by the police. That every efforts were has made to collect independent witness at the time of searching which is proved by the evidence of the prosecution and in these circumstance it is amply proved by the prosecution that from the possession of the accused appellant contraband was recovered and the FSL in examining the same contraband which was sent by the prosecution in sealed cover and sufficient evidence in keeping the sealed articles without any tampering and handed over the same to the FSL in sealed position and the same was found to be 4.36% morphine of coagulated juice of opium poppy and no valid licence was produced by him for keeping this contraband illegally with him, thus committed the offence of sections 8/18 of the NDPS Act and the trial Court has rightly convicted the accused and rightly sentenced him for the period mentioned above. The findings arrived at by the trial court thus cannot be said to be perverse. The prosecution has been able to prove the case beyond reasonable doubt against the accused appellant. It may also be made clear that the compliance of provisions of NDPS Act has also been made fully as is evident from the evidence produced by the prosecution. The learned counsel for the accused appellant has not pointed out any thing prejudicial to the accused appellant in the instant matter and hence the arguments raised by him stand rejected. He was caught in the train having contraband with him and the same was searched as per the provisions of the NDPS and the provisions of the NDPS Act have been fully complied with in the instant matter. The trial court rightly convicted and sentenced the accused appellant. The judgment of conviction and sentence is confirmed. 10. He was caught in the train having contraband with him and the same was searched as per the provisions of the NDPS and the provisions of the NDPS Act have been fully complied with in the instant matter. The trial court rightly convicted and sentenced the accused appellant. The judgment of conviction and sentence is confirmed. 10. For the foregoing reasons the appeal being devoid of merit stands rejected. The appellant who is in jail shall serve out the remaining sentence as ordered by the trial Court.