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2013 DIGILAW 143 (CHH)

SEMADRI JENA v. STATE OF C. G.

2013-05-01

RADHE SHYAM SHARMA

body2013
JUDGMENT 1. This appeal is directed against the judgment and order dated 25-01-2008 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act, 1985'), Durg in Special Case No.11/2006. By the impugned judgment, accused/appellant Semadri Jena has been convicted under Section 20(b)(ii)(C) of the Act, 1985 and sentenced to undergo R.I. for 10 years and to pay fine of Rs.1,00,000/-, in default of payment of fine, to further undergo R.I. for 2 years. 2. The case of the prosecution, in brief, is as under: On 30-05-2006, Assistant Sub-Inspector Mahadev Tiwari (PW-8) was posted in Crime Branch Police Station Bhatti, Distt. Durg. Rajeev Shrama (not examined) was posted as Incharge of the Crime Branch. On that day, Crime Branch Incharge Rajeev Sharma received an information from mukhbir that the appellant is selling illegal Ganja at Balaji Nagar Khursipar. Rajeev Shanna entered the information in rojnamcha sanha No. 1781 (Ex.-P/20C), prepared mukhbir suchna panchnama and transmitted the said information to City Superintendent (Police), Chhawani vide Ex.-P/18C and he requested to proceed for raid without search warrant. He called witnesses. Thereafter, Rajeev Shanna, ASI Mahadev Tiwari (PW-8), other police personnel and witnesses proceeded towards Balaji Nagar, Khursipar. They reached the house of the appellant and gave him notice for search vide Ex.-P/7. The appellant was informed about his right under Section 50 of the Act, 1985 vide. Ex. P-7. The appellant gave, his consent regarding search and the same was recorded vide EX.P-8. Thereafter, Assistant Sub-inspector Mahadev Tiwari (PW-8) made search of the house of the appellant. Ganja like substance was found in a tin container which was seized from possession of the appellant. Identification of the recovered article was conducted vide Ex.-P/12. After physical verification, it was found that the recovered article was Ganja. Ganja was weighed on the spot vide EX.-P/14. The Ganja was kept in the tin container. The container contained 25 Kgs. of Ganja. A sum of Rs.23, 130/- was also recovered from the appellant. The Ganja and the recovered amount was seized vide Ex.-P/15. A sample of the seized Ganja was prepared and sealed on the spot. Thereafter, ASI Mahadev Tiwari (PW-8) arrested the appellant and recorded dehati nalishi (Ex.-P/1), came back to Police Station Bhilai Bhatti and sent the seized Ganja and the appellant to Police Station Chhawani (Bhilai), where First Information Report (Ex.-P/2) was registered. A sample of the seized Ganja was prepared and sealed on the spot. Thereafter, ASI Mahadev Tiwari (PW-8) arrested the appellant and recorded dehati nalishi (Ex.-P/1), came back to Police Station Bhilai Bhatti and sent the seized Ganja and the appellant to Police Station Chhawani (Bhilai), where First Information Report (Ex.-P/2) was registered. Action taken report was sent to CSP, Chhawani (Bhilai). The seized Ganja and its sample were kept in Malkhana. The sample of seized Ganja was sent to Forensic Science Laboratory, Raipur for examination. Report (Ex.P/23) was received therefrom, in which, test of Ganja was found positive. After completion of the investigation, charge sheet was filed against the appellant in the Court of Special Judge under the Act, 1985, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri K.K. Dwivedi and Shri Vipin Tiwari, learned counsel for the appellant argued that there was no compliance of provisions of Sections 42, 50, 55 and 57 of the Act, 1985. They further argued that the secret information was received by Rajeev Sharma but he did not record the said mukhbir suchna. They further argued that there is nothing on record to show that the tin container was containing Ganja and the sample taken out from the container was sealed and specimen of seal was prepared. The seizure from the appellant was not in accordance with law. The seized article was not produced in the Court. There is possibility of tampering of the sample. The investigating officer did not prepare seal panchnama and specimen of seal was not affixed on the seizure memo and other requisite documents. Information under Section 57 of the Act, 1985 was also sent belatedly. Hence, the appellant deserves acquittal. They placed reliance on Directorate of Revenue and another Vs. Mohammed Nisar Holia, 2008(3) CGLJ 55 (SC), Shakuntali Kol Vs. State of M.P., 2008(2) MPHT 97 , Om Prakash @ Baba Vs. State of Rajasthan, 2010(1) MPWN 58, Makhdam Khan Vs. CBN Mandsaur, 2011(11) MPJR 229, Kuleshwar Dhruw Vs. State of CG., 2008(3) CGLJ 257 , Nizamuddin Vs. State, 1995(1)EFR 493, Jitendra and another Vs. State of MP, 2003(4) MPHT 338(SC), Mohammad Asif Vs. State of M.P., 2003(4) MPHT 343 (DB) and Sheikhlal Vs. State of Madhya Pradesh, 2007(3) MPHT250. 4. State of Rajasthan, 2010(1) MPWN 58, Makhdam Khan Vs. CBN Mandsaur, 2011(11) MPJR 229, Kuleshwar Dhruw Vs. State of CG., 2008(3) CGLJ 257 , Nizamuddin Vs. State, 1995(1)EFR 493, Jitendra and another Vs. State of MP, 2003(4) MPHT 338(SC), Mohammad Asif Vs. State of M.P., 2003(4) MPHT 343 (DB) and Sheikhlal Vs. State of Madhya Pradesh, 2007(3) MPHT250. 4. On the contrary, Shri Anand Verma, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court. 5. I have heard rival contentions of the parties at length and have also perused the record of Special Case No.11/2006. 6. Now, I shall examine whether the provision of Section 42 of the Act, 1985 has been substantially complied with or not? 7. Assistant Sub-Inspector Mahadev Tiwari (PW-8) deposed that on 3005-2006, he was posted in Crime Branch Police Station Bhatti, Bhilai, Distt. Durg as Assistant Sub-Inspector. On 30-05-2006, he received information from mukhbir that the appellant had Ganja in his possession. Rajeev Sharma, officer-in-charge, Crime Branch entered the above mukhbir suchna in rojnamcha sanha No. 1781 (Ex.-P/20C). He further deposed that the mukhbir suchna was transmitted to CSP, Chhawani through Constable 198 Rajkumar at about 18.30 Hrs. Constable 1350 Prakash Das (PW-5) deposed that on 30-05-2006, he was posted as Reader in the office of CSP, Chhawani, Bhilai. On that day, he received mukhbir suchna from Crime Branch Police Station Bhatti vide Ex.-P/18. He had acknowledged the same in Ex.-P/18 itself. 8. In Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539 , the Hon'ble Supreme Court held thus: "35. In conclusion, what is to be noticed is that Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, (2000) 2 SCC 513 , did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham Vs. State of Kerala, (2001) 6 SCC 692 , hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. State of Gujarat, (2000) 2 SCC 513 , did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham Vs. State of Kerala, (2001) 6 SCC 692 , hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith information the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer, But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance .with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 9. In Sukhdev Singh Vs. State of Haryana, 2013 AIR SCW 312, the Hon'ble Supreme Court observed thus: "The provision of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating officer. He is obliged to furnish the information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. Compliance of Section 42 is mandatory and there cannot be an escape from its strict compliance." 10. In the instant case, Assistant Sub-Inspector Mahadev Tiwari (PW-8) specifically deposed that on 30-05-2006, he was in Police Station Bhilai Bhatti along with Crime Branch Incharge Rajeev Sharma, Assistant Sub-Inspector Jalaluddin, Head Constable Chandrashekhar, Constable Madhulal and Constable Rajkumar. Mukhbir suchna was received and the same was entered into rojnamcha sanha No.1781 (Ex.-P/20) and its copy is Ex.-P/20C. In the instant case, Assistant Sub-Inspector Mahadev Tiwari (PW-8) specifically deposed that on 30-05-2006, he was in Police Station Bhilai Bhatti along with Crime Branch Incharge Rajeev Sharma, Assistant Sub-Inspector Jalaluddin, Head Constable Chandrashekhar, Constable Madhulal and Constable Rajkumar. Mukhbir suchna was received and the same was entered into rojnamcha sanha No.1781 (Ex.-P/20) and its copy is Ex.-P/20C. Assistant Sub-Inspector Mahadev Tiwari (PW-8) and Constable Prakash Das (PW-5) specifically deposed that mukhbir suchna was transmitted to CSP, Chhawani which was received by Constable Prakash Das (PW-5) on behalf of the CSP, Chhawani on 30-05-2006 at about 18.30 Hrs. 11. Looking to the evidence of Assistant Sub-Inspector Mahadev Tiwari (PW-8) and Constable Prakash Das (PW-5), Ex.-P/20C and Ex.-P/18C, it appears that mukhbir suchna was received by Rajeev Sharma as well as Assistant Sub-Inspector Mahadev Tiwari (PW-8) and Rajeev Sharma entered the same into rojnamcha sanha No.1781.It is established that Rajeev Sharma, Crime Branch Incharge recorded the mukhbir suchna in the rojnamcha sanha and also sent a copy thereof to the superior officer, i.e., CSP, Chhawani. It is, therefore, clear that the provision of Section 42 of the Act, 1985 is complied with. 12. Now, I shall consider the arguments regarding Section 50 of the Act, 1985. 13. Assistant Sub-Inspector Mahadev Tiwari (PW-8) deposed that he proceeded for Balaji Nagar, Khursipar along with Crime Branch Incharge Rajeev Sharma and other police officials and reached the house of the appellant and at that time Manjit Giri (PW-3) and Siyaram Singh (PW-4) were called as witnesses and both the witnesses were informed about the mukhbir suchna. He further deposed that he informed the appellant about the legal right under Section 50 of the Act, 1985 vide notice Ex.-P/7 that he had right to be searched either before a gazetted officer or before a Magistrate. The notice (Ex.P-7) was signed by the appellant. The consent of the appellant was recorded vide Ex.-P/8. 14. In the instant case, Assistant Sub-Inspector Mahadev Tiwari (PW8) specifically deposed that the appellant was informed that he had right to be searched before a gazetted officer or before a Magistrate. The notice (Ex.P-7) was signed by the appellant. The consent of the appellant was recorded vide Ex.-P/8. 14. In the instant case, Assistant Sub-Inspector Mahadev Tiwari (PW8) specifically deposed that the appellant was informed that he had right to be searched before a gazetted officer or before a Magistrate. In the notice (Ex.-P/7), it is mentioned thus: ^^eq> lmfu- egknso frokjh dks eq[kchj ls fo’oLr lw=ksa ls lwpuk izkIr gqbZ gS fd vkids ikl eknd nzo xkatk gSA tks vkidh rFkk vkids >ksiM+h dh ryk’kh ysuk vko’;d gSA eftLVªsV vFkok jktif=r vf/kdkjh ds le{k ryk’kh djk ldrs gSa ;k esjs ls djk ldrs gSaA vr% vkidks lwpuk nh tkrh gSA** In the consent (Ex.-P/8), it is mentioned thus: ^^eSa lheknzh firk jkew tsuk mez 35 o”kZ ckykthuxj] [kqlhZikj fyf[kr esa vfHkLohd`fr nsrk gw¡ fd Lo;a ,oa >ksiM+h dh ryk’kh fdlh eftLVªsV ;k jktif=r vf/kdkjh ls ugha djkuk pkgrk gw¡A viuh rFkk >ksiM+h dh ryk’kh vkidks nsuk pkgrk gw¡A vkids }kjk ryk’kh ysus ls eq>s dksbZ vkifRr ugha gSA** 15. In the instant case, bare perusal of Ex.-P/8 reveals that Assistant Sub-Inspector Mahadev Tiwari (PW-8) informed the appellant about his legal right under Section 50 of the Act, 1985 to be searched before a gazetted officer or before a Magistrate or before him and, therefore, provision of Section 50 of the Act, 1985 is complied with. 16. In Jarnail Singh Vs. State of Punjab 12, the Hon'ble Supreme Court observed as follows: "12.A. ......... This Court in the case of Kalema Tumba Vs. State of Maharashtra, (1999) 8 SCC 257 , discussed the provisions pertaining to 'personal search' under Section 50 of the NDPS Act and held as follows: "...........if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person." Similarly, in the case of Megh Singh Vs. State of Punjab, (2003) 8 SCC 666 , this Court observed that: "A bare reading of section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises." The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh Vs. Pawan Kumar, (2005) 4 SCC 350 . It does not extend to a search of a vehicle or container or a bag or premises." The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh Vs. Pawan Kumar, (2005) 4 SCC 350 . In paragraphs 10 and 11, this Court observed as follows: "10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most, appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilized society, appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze' of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article 12. AIR 2011 SC 964 to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once-worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings' and clothings and also footwear. 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. Therefore, the word "person" would mean a human being with appropriate coverings' and clothings and also footwear. 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some, extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance, it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." 17. In Madanlal and another Vs. State of Himachal Pradesh, (2003) 7 SCC 465 and Megh Singh Vs. State of Punjab, (2003) 8 SCC 666 , the Hon'ble Supreme Court observed that a bare reading of Section 50 of the Act. 1985 shows that it only applies in cases of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicle or articles. The position was settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh, (1999)6 SCC 172 . 18. In view of the above settled legal position, Section 50 of the Act, 1985 would not be applicable when search is made of a house or a vehicle or a container or a bag or premises. In the instant case, the search was made of the house of the appellant, therefore, Section 50 of the Act, 1985 is not applicable. 19. In the instant case, the search was made of the house of the appellant, therefore, Section 50 of the Act, 1985 is not applicable. 19. Learned counsel for the appellant argued that the evidence of Assistant Sub-Inspector Mahadev Tiwari (PW-8) has not been supported by the independent witnesses. Therefore, the conviction of the appellant cannot be based on the evidence of Assistant Sub-Inspector Mahadev Tiwari (PW8). They further argued that the FSL report (Ex.P-23) is not admissible in evidence. Doctor H.S. Bhawara who examined the contraband article was not competent for chemical examination. He was appointed as Assistant Chemical Examiner vide order dated 16-07-2007. Therefore, on date of examination of the sample, i.e., 08-01-2007, he was not appointed as a Assistant Chemical Examiner. They further argued that the property was not produced in the Court, therefore, the prosecution has not been able to prove that the seized article was Ganja. The prosecution did not examine Dr. H.S. Bhawara, therefore, the FSL report (Ex.P-23) cannot be admitted in evidence. They placed reliance on the decisions in Nizamuddin, 1995(1) EFR 493 (supra) and Jitendra, 2003(4) MPHT 338 (SC) (supra). 20. In Girja Prasad (Dead) by LRs. Vs. State of M.P., (2007) 7 SCC 625 , the Hon'ble Supreme Court observed thus: "25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence. 26. It is not necessary to refer to various decisions on the point. We may, however, state that before more than half a century, in Aher Raja Khima Vs. State of Saurashtra, AIR 1956 SC 217 , Venkatarama Ayyar, J. stated: (AIR p. 230, para 40) "40. ... The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration." 27. In Tahir v. Stale (Delhi), (1996) 3 SCC 338 , dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: (SCC p. 341, para 6) "6. ... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case." 21. In State of Punjab Vs. Nirmal Singh, (2009) 12 SCC 205 the Hon'ble Supreme Court observed that there is no legal bar on recording the conviction on the basis of evidence of official witness and Section 50 of the Act, 1985 has no application as there was no personal search. [See also Lopchand Naruji Jal and another Vs. State of Gujrat, (2004) 7 SCC 566 ]. 22. Karamjit Singh Vs. State (Delhi Admn.) (2003) 5 SCC 291 , the Hon'ble Supreme Court observed thus: "8. .......... [See also Lopchand Naruji Jal and another Vs. State of Gujrat, (2004) 7 SCC 566 ]. 22. Karamjit Singh Vs. State (Delhi Admn.) (2003) 5 SCC 291 , the Hon'ble Supreme Court observed thus: "8. .......... The testimony of police personnel should be treated in the manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down......" 23. In P.P. Beeren Vs. State of Kerala, 2001(9) SCC 57 the Hon'ble Supreme Court observed thus: "Sub-Inspector of police searching the appellant/accused and finding him to be in possession of opium, in such circumstances, evidence of Sub-Inspector, even if not corroborated by any other held can nonetheless be made the sole basis for conviction." 24. In Sumit Tomar Vs. State of Punjab, (2013)1 SCC 395 the Hon'ble Supreme Court held thus: "10. ......... However, in the absence of any animosity between the accused and the official witnesses, there is nothing wrong in relying on their testimonies and accepting the documents placed for basing conviction. After taking into account the entire materials relied on by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also do not find any infirmity in the prosecution case.........." 25. In the instant case, Assistant Sub-Inspector Mahadev Tiwari (PW8) deposed that he searched the house of the appellant and he recovered the tin container (drum) and the Ganja was kept in the said container. He further deposed that the seized Ganja was weighed in presence of witnesses and weight panchnama (Ex.-P/14) was prepared on the spot. The tin container had contained 25 Kgs. Ganja which was recovered from possession of the appellant. He further deposed that the sample packet containing 100 grams of Ganja was prepared. The Ganja was seized and seizure memo was prepared vide Ex.-P/15. Identification of the recovered article was conducted and identification panchnama (Ex.-P/12) was prepared. The tin container had contained 25 Kgs. Ganja which was recovered from possession of the appellant. He further deposed that the sample packet containing 100 grams of Ganja was prepared. The Ganja was seized and seizure memo was prepared vide Ex.-P/15. Identification of the recovered article was conducted and identification panchnama (Ex.-P/12) was prepared. He further deposed that he arrested the appellant vide EX.-P/21 and he recorded First Information Report (dehati nalishi) on the spot vide Ex.-P/1. He further deposed that he sent the appellant along with the seized Ganja and the sample thereof to Police Station Chhawani through Constable 639 Madhurlal, he came back to Police Station Bhilai Bhatti, made entry of return in rojnamcha sanha No. 1806 vide Ex.-P/22 and its copy is EX.-P/22C. ASI H.L. Shukla (PW-1) deposed that on 31 -05-2006, at 00.45 am, he received EX.-P/1 through Constable 639 Madhurlal then he recorded First Information Report (Ex.-P/2) in Police Station, Chhawani (Bhilai). 26. Head Constable Manharan Yadav (PW-2) deposed that he was posted as Malkhana Moharrir at Police Station Chhawani (Bhilai). On 30-05-2006, he received the property for safe custody. He further deposed that entry of the property was made in Malkhana register (Ex.-P/3) and its copy is EX.-P/3C. 27. Looking to the Evidence of Assistant Sub Inspector Mahadev Tiwari (PW-8) and Head Constable Manharan Yadav (PW-2), it is clear that the seized Ganja and its sample were handed over by ASI Mahadev Tiwari (PW-8) to Malkhana Moharrir Head Constable Manharanl Yadav (PW-2) for their safe custody and the same is corroborated by EX.-P/3C. 28. Head Constable Manharan Yadav (PW-2) deposed that the sample packet was sent to FSL Raipur and to that effect entry was made in Malkhana Register (Ex.-P/4) and its copy is Ex.-P/4C. 29. Constable Jagannath Sori (PW-7) deposed that he was posted in Police Chowki Khursipar which is within Police Station Chhawani (Bhilai). He further deposed that on 03-06-2006, he took the sample regarding crime No.722/2006 of Police Station Chhawani to FSL Raipur for chemical examination and the same was received at FSL Raipur. Acknowledgment thereof is Ex.-P/20. 30. In Ex.-P/20, it is mentioned that an article was received from Constable 509 Jagannath Sori (PW-7), P.S. Chhawani Distt. Durg on 03-06-2006. EX.-P/23 is the FSL Report. In Ex.-P/23, it is mentioned that an article was received from Jagannath Sori (PW -7) Constable No.509 in sealed condition on 03-06-2006. Acknowledgment thereof is Ex.-P/20. 30. In Ex.-P/20, it is mentioned that an article was received from Constable 509 Jagannath Sori (PW-7), P.S. Chhawani Distt. Durg on 03-06-2006. EX.-P/23 is the FSL Report. In Ex.-P/23, it is mentioned that an article was received from Jagannath Sori (PW -7) Constable No.509 in sealed condition on 03-06-2006. In Ex.-P/23, it is mentioned as follows: ^^mijksDr fo”k;kafdr ls lacaf/kr lhycan ,d iSdsV@caMy@ckDl vkj{kd dz- 509 txUukFk Fkuk Nkouh }kjk bl dk;kZy; esa fnukad 3&6&2006 dks izkIr gq;s tksw ,& ls fpfUgr ik;s x;s rFkk bu ij ikbZ xbZ lhysa] uewuk lhy ds ln`’; ikbZ xbZA^^ 31. It appears that the Ganja was seized and a sample thereof was prepared on 30-05-2006 and the sample was sent to FSL Raipur on 02-06-2006 and the same was received in FSL Raipur on 03-06-2006. 32. In Jarnail Singh Vs. State of Punjab, AIR 2011 SC 964 (supra), the Hon'ble Supreme Court observed as follows: "14. .......... The trial court as well as the High Court, on examination of the entire material, concluded that there was sufficient independent evidence produced by the prosecution regarding the completion of link evidence. Therefore, the delay in sending the sample parcel to the office of Chemical Examiner pales into insignificance. We are of the considered opinion that mere delay in sending the sample of the narcotic to the office of the Chemical Examiner would not be sufficient to conclude that the sample has been tampered with. There is sufficient evidence to indicate that the delay, if any, was wholly unintentional. This Court had occasion to deal with a similar issue, in the case of Balbir Kaur v. Stale of Punjab, (2009) 15 SCC 795 . The Court made the following observations: "As far as delay in sending the samples is concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case ( AIR 2009 SC 432 : 2008 AIR SCW 7514) wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Reference in this regard may be made to the decision of this Court in Hardip Singh case ( AIR 2009 SC 432 : 2008 AIR SCW 7514) wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the Court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case." ......................................." 33. Therefore, mere delay of 4 days in sending the sample to the office of the chemical examiner would not be fatal to the case of the prosecution. 34. Learned counsel for the appellant argued that Doctor H.S. Bhawara was not competent for chemical examination and he was not the officer covered under Section 293 Cr.P.C. and he drew attention of this Court on Ex.-D/4 and D/5. 35. The above contention of learned defence counsel is not acceptable. It is incumbent on the prosecution to examine any or every concerned official within the office of the Chemical Examiner with regard to the safe custody of the sample therein, and the failure to do so does not introduce any infirmity in its case. Report of the Chemical Examiner is admissible under Section 293 Cr.P.C. 36. In Papabai Vs. State of Chhattisgarh, Criminal Appeal No.211 of 2004 and Prakash Chand Agrawal Vs. State of C.G., 2013 Cri.L.J. (NOC) 149 (C.G.), this Court held that the accused was not able to prove that what prejudice was caused to him for non-production of contraband in the Court. 37. The judgments cited by the appellant is distinguishable on the facts and circumstances of the instant case. 38. The defence has not been able to prove that the seal put on the seized article and the sample was, in any manner, tampered with before the sample was examined by the Chemical Examiner. There was delay of mere 4 days in sending the sample to FSL, Raipur. It is not proved as to how the aforesaid delay of 4 days affected the same examination when it could not be proved that the seal of the sample was, in any manner, tampered with. There was delay of mere 4 days in sending the sample to FSL, Raipur. It is not proved as to how the aforesaid delay of 4 days affected the same examination when it could not be proved that the seal of the sample was, in any manner, tampered with. In the circumstances, when the seal was found intact at the time of examination by the Chemical Examiner and the said fact was recorded by him in his report, mere delay in sending the sample to the Chemical Examiner itself would not be fatal to the case of the prosecution. Non-production of the seized property in the Court also does not affect the case of the prosecution. 39. Therefore, in the instant case, from the above, it is apparent that provisions of Sections 42, 50, 55 and 57 of the Act, 1985 are substantially complied with. Hence, I find no infirmity in the impugned judgment of conviction and sentence passed by the learned Special Judge. 40. For the foregoing reasons, the appeal is dismissed. Appeal Dismissed.