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2013 DIGILAW 192 (CHH)

SARJU SISODIYA v. STATE OF C. G.

2013-07-01

Radhe Shyam Sharma

body2013
JUDGMENT 1. This appeal is directed against judgment dated 3rd July, 2009 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act, 1985'), Janjgir, District Janjgir-Champa in Special Case No.2/2009. By the impugned judgment, accused/appellant Sarju Sisodiya has been convicted under Section 20 (b) (i) (ii)(B) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 8 years and to pay fine of Rs.5,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months. 2. The case of the prosecution, in brief, is as under: On 07-02-2009, Sub-Inspector Harprasad Pandey (PW-7) was posted as Officer-in-Charge at Police Outpost Naila. On that date, Sub-Inspector Harprasad Pandey (PW -7) received a secret information from mukhbir that the appellant was bringing ganja in a bus from Barampur, Orissa. He recorded mukhbir suchna panchnama (Ex.P/28) and also entered it into the rojnamcha sanha. He transmitted the same information to SDO(P), Janjgir vide Ex.-P/1. Thereafter, he proceeded for further action and reached Khairamod, Bhatapara, Naila along with witnesses and police personnel. The appellant met him at Khairamod, Bhatapara, Naila. On being enquired, the appellant told his name. The appellant was informed about his legal right under Section 50 of the Act, 1985 vide Ex.-P/6. Consent of the appellant regarding search was recorded vide Ex.-P/7. Thereafter, Sub-Inspector Harprasad Pandey (PW-7) searched the bag of the appellant. Ganja like substance was found in the bag which was wrapped by a polythine. Search Panchnama was prepared vide Ex.P/11 and recovery panchnama was also prepared vide Ex.-P/12. Identification of the recovered article was conducted vide Ex.-P/13. After verification, it was found that the recovered article was ganja. Ganja was weighed on the spot vide Ex.-P/15. Ganja was kept in a bag and the weight of the ganja was found 8 kgs. and 50 grams. Ganja was seized vide Ex.-P/17 and namuna seal panchnama was prepared vide Ex.-P/16. Sample of seized ganja was prepared and sealed on the spot. Sub-Inspector Harprasad Pandey (PW-7) arrested the appellant vide Ex.-P/18 and prepared spot map vide Ex.-P/19. Sub-Inspector Harprasad Pandey (PW-7) came back to Police Outpost Naila along with the appellant and seized article. First Information report (Ex.-P/30) was recorded in Police Station Janjgir. The seized article and the sample were handed over to malkhana moharrir for their safe custody vide Ex.-P/22. Sub-Inspector Harprasad Pandey (PW-7) arrested the appellant vide Ex.-P/18 and prepared spot map vide Ex.-P/19. Sub-Inspector Harprasad Pandey (PW-7) came back to Police Outpost Naila along with the appellant and seized article. First Information report (Ex.-P/30) was recorded in Police Station Janjgir. The seized article and the sample were handed over to malkhana moharrir for their safe custody vide Ex.-P/22. Action taken report (Ex.-P/2) was sent to the SDO(P), Janjgir and sample of the seized ganja was sent to Forensic Science Laboratory (FSL), Raipur for chemical examination vide Ex.-P/32. A report (Ex.-P/34A) was received therefrom vide Ex.-P/34. In Ex.-P/34A, the 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, Janjgir, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Ashok Dixit, learned counsel for the appellant argued that there was no compliance of provisions of Sections 42, 50, 55 and 57 of the Act, 1985. Mukhbir suchna was not sent to superior officers. Looking to the Ex.-P/1, it appears that it was not sent immediately. Therefore, the provision of Section 42 of the Act, 1985 was not complied with. He further argued that there is nothing on record to show that Section 50 of the Act, 1985 has been complied with by Sub-Inspector Harprasad Pandey (PW -7). He further argued that the ganja was not sealed properly. The sample was sent to FSL, Raipur belatedly and there is no explanation therefor. Therefore, there is possibility of tampering of the sample. Hence, the appellant deserves acquittal. 4. Shri Mahesh Mishra, learned Panel Lawyer appearing on behalf of the State/respondent supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not call for any interference by this Court. 5. I have heard learned counsel for the parties at length and have also perused the record of Special Case No.2/2009. 6. The prosecution examined Constable Girish Tiwari (PW-1), Assistant Sub-Inspector Kirtan Singh (PW-2), Patwari Shivkumar (PW-3), Tulsidas (PW4), Dayaluram (PW-5), Head Constable Suresh Kumar Soni (PW-6), SubInspector Harprasad Pandey (PW-7), Ramcharan (PW-8) and Constable Rajkumar Chandra (PW-9). The appellant did not examine any witness in his defence. 7. Now, I shall examine whether provision of Section 42 of the Act, 1985 has been substantially complied with or not? 8. The appellant did not examine any witness in his defence. 7. Now, I shall examine whether provision of Section 42 of the Act, 1985 has been substantially complied with or not? 8. Sub-Inspector Harprasad Pandey (PW-7) deposed that on 07-02-2009, he was posted as Officer-in-Charge at Police Outpost Naila. On that date, he received a secret information that the appellant was bringing ganja from Orissa and going towards Pahariya for selling the same. He further deposed that he recorded mukhbir suchna panchnama vide Ex.-P/28 and also entered the information in rojnamcha sanha. He further deposed that he transmitted the secret information to the SDO(P), Janjgir. 9. Constable Girish Tiwari (PW-1) deposed that on 07-02-2009, he was posted at Police Chowki Naila as a Constable and handed over the copy of mukhbir suchna to Reader to SDO(P), Janjgir and obtained acknowledgment on the Ex.-P/1 itself. 10. A.S.I. Kirtan Singh (PW-2) deposed that he was posted as Reader in the office of SDO(P), Janjgir. He further deposed that he had received mukhbir suchna panchnama vide Ex.-PII and had acknowledged the same on the Ex.-P/1 itself. 11. Sub-Inspector Harprasad Pandey (PW-7) specifically deposed that he received mukhbir suchna and prepared mukhbir suchna panchnama vide Ex.-P/28, entered it into rojnamcha sanha and transmitted the same to SDO(P), Janjgir vide Ex.-PII His evidence is corroborated by Constable Girish Tiwari (PW-l) and ASI Kirtan Singh (PW-2) as also by Ex.-P/28 and Ex.-P/1. 12. Looking to the evidence of Sub-Inspector Harprasad Pandey (PW-7), Constable Girish Tiwari (PW-1) and ASI Kirtan Singh (PW-2), it appears that Sub-Inspector Harprasad Pandey (PW-7) received the secret information, recorded the same vide Ex.-P/28 and communicated it to the SDO(P), Janjgir. 13. 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). (b) 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. 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 of2001. (see also Rajinder Singh Vs. State of Haryana (2011) 8 SCC 130 )" 14. Provisions of sub-sections (1) and (2) of Section 42 of the Act, 1985 are mandatory in nature and need strict compliance thereof. It ought to be construed complied with strictly furnishing information to the superior officer forthwith or within a very short time; whereas total non-compliance of the provisions of sub-sections (1) and (2) of Section 42 of the Act, 1985 is impermissible. Delayed compliance with satisfactory explanation therefor would be acceptable and whether there is adequate or substantial compliance with the provisions of Section 42 of the Act, 1985 or not is a question of fact to be decided in each case. 15. In the instant case, Sub-Inspector Harprasad Pandey (PW-7) received the secret information and prepared mukhbir suchna panchnama (Ex.-P/28) and transmitted it to SDO(P), Janjgir immediately, therefore, there was substantial compliance of the provisions of Section 42 of the Act, 1985. 16. Now, I shall examine whether provision of Section 50 of the Act, 1985 has been substantially complied with or not or whether compliance of provision of Section 50 of the Act, 1985 is mandatory in the instant case? 17. 16. Now, I shall examine whether provision of Section 50 of the Act, 1985 has been substantially complied with or not or whether compliance of provision of Section 50 of the Act, 1985 is mandatory in the instant case? 17. The officer, who is to search a person, is required to inform the person about his right to be search by a nearest Gazetted Officer or by a nearest Magistrate. If the person gives his consent to be searched before a Gazetted Officer or before a Magistrate, he should, without unnecessary delay, be taken to a Gazetted Officer or a Magistrate, otherwise the search can be made by the concerned Police Officer. The requirement of law has been held to be mandatory in nature and non-compliance thereof vitiates trial. 18. Sub-Inspector Harprasad Pandey (PW-7) deposed that before making search, he had given notice to the appellant vide Ex.-P/6 that he had right to be searched before a nearest Magistrate or a nearest Gazetted Officer. He further deposed that the appellant gave his consent vide Ex.-P17. 19. Relevant part of Ex.-P/6 reads thus:- ^^eq>s vkids ikl voS/k eknd inkFkZ xkatk gksus dh lwpuk izkIr gqbZ gS] ftlds fy, vkidh ryk’kh ysuk vko’;d gSA vkidks oS/kkfud laj{k.k izkIr gS fd vki viuh ryk’kh eftLVsªV vFkok jktif=r vf/kdkjh ds le{k djk ldrs gSA vr% bl laca/k esa vkidks lwpuk nh tkrh gSA uksfVl dks i<+dj xokgksa ds le{k lquk;k x;k ,oa le>k;k x;kA** 20. Relevant part of Ex.-P/7 reads thus: ^^eSa ljtw vk- eFkqjk izlkn f’klknh mez 22 lky fuoklh efV;kjh Fkkuk lhir ftyk fcykliqj dk jgus okyk gw¡ tks fd vius cnu ,oa cSx dh ryk’kh vkils djkus dks rS;kj gw¡ rFkk fyf[kr lgefr nsrk g¡wWA jktif=r vf/kdkjh ;k eftLVsªV ls ryk’kh ugha djkuk pkgrk g¡wA** 21. In the instant case, Sub-Inspector Harprasad Pandey (pW -7) specifically deposed that the appellant was informed that he was entitled to be searched before a nearest Magistrate or a nearest Gazetted Officer and looking to Ex.P/6 and PI7, it appears that the appellant was duly informed by Sub-Inspector Harprasad Pandey (PW-7) that he was entitled to be searched before a nearest Magistrate or a nearest Gazetted Officer. It reveals that Sub-Inspector Harprasad Pandey (PW-7) had informed the appellant about his legal right and, therefore, provision of Section 50 of the Act, 1985 is complied with. 22. It reveals that Sub-Inspector Harprasad Pandey (PW-7) had informed the appellant about his legal right and, therefore, provision of Section 50 of the Act, 1985 is complied with. 22. In the instant case, the search was not a personal search. The appellant was carrying a bag along with him and the search was made of his bag by Sub-Inspector Harprasad Pandey (PW-7). 23. In Jarnail Singh Vs. State of Punjab AIR 2011 SC 964 , the Hon'ble Supreme Court observed as follows: "12.A. ....... This Court in the case of Kalema Tumba Vs. State ofMaharashtra, (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 ITom 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 . 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". 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 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. 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 orweight. 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." 24. In Madanlal and another Vs. State of Himachal Pradesh, (2003) 7 SCC 465, and Megh Singh Vs. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." 24. 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 case 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 is settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh, (1999)6 SCC 172 . 25. In view of above settled legal position, provision of 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 bag, therefore, provision of Section 50 of the Act, 1985 would not be applicable. 26. Learned counsel for the appellant argued that the evidence of Sub-Inspector Harprasad Pandey (PW-7) has not been supported by the evidence of independent witnesses. Therefore, conviction of the appellant cannot be based on the evidence of Sub-Inspector Harprasad Pandey (PW-7). 27. In Girja Prasad (Dead) by LRs. Vs. State of MP, (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. 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. 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. State (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." 28. 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 Jat and another Vs. State of Gujrat (2004) 7 SCC 566 ]. 29. In Karamjit Singh Vs. State (Delhi Admn.) (2003)5 SCC 291 , the Hon'ble Supreme Court observed thus: "8. ........... [See also Lopchand Naruji Jat and another Vs. State of Gujrat (2004) 7 SCC 566 ]. 29. In 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 oflaw 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.........." 30. In P.P. Beeren Vs. State of Kerala, 2001(9) SCC 571 , 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." 31. 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. ........" 32. Sub-Inspector Harprasad Pandey (PW-7) deposed that on 07-02-2009, the was in Police Chowki Naila. A mukhbir suchna was received and mukhbir suchna panchnama (Ex.-P/28) was prepared and thereafter he proceeded for Khairamod, Bhatapara, Naila. The appellant met there. On being enquired, he told his name. The appellant was informed about his legal right under Section 50 of the Act, 1985. The consent of the appellant was obtained vide Ex.-P/7. He further deposed that the bag of the appellant was searched. The ganja was recovered from the bag of the appellant which was kept in a polythine and recovery panchnama EX.-P/12 was prepared. He further deposed that identification of recovered article was conducted vide Ex.-P/13. The consent of the appellant was obtained vide Ex.-P/7. He further deposed that the bag of the appellant was searched. The ganja was recovered from the bag of the appellant which was kept in a polythine and recovery panchnama EX.-P/12 was prepared. He further deposed that identification of recovered article was conducted vide Ex.-P/13. After physical verification, it was found that the recovered article was ganja. The ganja was weighed on the spot and the weight was found to be 9.50 kgs. along with the bag and the weight of ganja was found 8 kgs. and 50 grams. Weight Panchnama (Ex.-P/15) was prepared. The sample of seized ganja was prepared separately. He further deposed that the sample and ganja were sealed on the spot and separate namuna seal pane/mama was also prepared vide Ex.-P/16. The ganja was seized vide Ex.-P/17. He further deposed that he arrested the appellant vide Ex.-P/18. 33. Sub-Inspector Harprasad Pandey (PW-7) deposed that he came back to the Police Station along with the appellant and seized article and the FIR (Ex.-P/30) was recorded in Police Station, Janjgir. The action taken report was sent to the SDO(P), Janjgir vide Ex.-P/2 and information regarding search, seizure and arrest of the appellant was also sent to the Special Judge under the Act, 1985 vide Ex.-P/31. He further deposed that he handed over the seized ganja and its sample to Malkhana Moharrir Suresh Kumar Soni (PW -6) for their safe custody and obtained acknowledgement vide Ex.-P/22. 34. Tulsidas (PW-4) deposed that he was standing along with Dayaluram (PW-5) near pan thela on Naila-Khaira Road. At that time, Sub-Inspector Harprasad Pandey (PW-7) was also present there. He further deposed that he had signed on Ex.-P/5 to Ex.-P/20. Dayaluram (PW-5) also deposed in similar fashion. Tulsidas (PW-4) and Dayaluram (PW-5) did not support the case of the prosecution, however, they admitted their signatures on the relevant documents. 35. Head Constable Suresh Kumar Soni (PW-6) deposed that he brought malkhana register and rojnamcha sanha of Police Station, Janjgir. He further deposed that on 07-02-2009, he received the property for safe custody from Sub-Inspector Harprasad Pandey (PW-7) vide Ex.-PI22. He further deposed that he received the article in sealed condition and entry of the same was made in malkhana register at serial No.55 which is Ex.-PI23 and its copy is Ex.P/23C. 36. He further deposed that on 07-02-2009, he received the property for safe custody from Sub-Inspector Harprasad Pandey (PW-7) vide Ex.-PI22. He further deposed that he received the article in sealed condition and entry of the same was made in malkhana register at serial No.55 which is Ex.-PI23 and its copy is Ex.P/23C. 36. Looking to the evidence of Sub-Inspector Harprasad Pandey (PW7) and Head Constable Suresh Kumar Soni (PW-6), it is clear that the seized ganja and its sample were handed over by Sub- Inspector Harprasad Pandey (PW-7) to Malkhana Moharrir Head Constable Suresh Kumar Soni (PW-6) for their safe custody. 37. Sub-Inspector Harprasad Pandey (PW-7) deposed that he sent the sample of seized ganja to FSL, Raipur for chemical examination vide Ex.-P/ 32 and report (Ex.-P/34A) was received therefrom vide Ex.-P/34. 38. Constable Rajkumar Chandra (PW-9) deposed that he was posted as a Constable in Police Chowki Naila. He further deposed that he took the sample from Police Station, Janjgir to FSL, Raipur for chemical examination and delivered the same at FSL, Raipur and its acknowledgement is Ex.-P/33. He further deposed that he handed over the acknowledgement (Ex.-P/33) to Officer-in-Charge of Police Chowki, Naila. 39. Looking to the evidence of Sub-Inspector Harprasad Pandey (PW7), Head Constable Suresh Kumar Soni (PW -6) and Constable Rajkumar Chandra (PW -9), it is clear that the seized ganja and the sample were sealed by Sub-Inspector Harprasad Pandey (PW-7). 40. Looking to the evidence of Sub-Inspector Harprasad Pandey (PW-7), it is evident that namuna seal panchnama was also prepared on the spot. It also appears that the sample was sent to FSL, Raipur for chemical examination vide Ex.-P/32 and report (Ex.-P/34A) was received therefrom. Relevant part of Ex.-P/34A reads thus:- ^^izn’kZ izkfIr % ,d lhycan iSdsV vafdr , esa gjh Hkwjh ifRr;k¡] Hkht rFkk iq”ikxz;qDr lw[kk ouLifrd inkFkZ ik;k x;kA ijh{k.k % izn’kZ , ds ouLifrd inkFkZ ij vko’;d HkkSfrd] jklk;fud] lw{en’khZ rFkk Vh-,y-lh- ijh{k.k fd;s x;s ftlesa xkatk ds ijh{k.k /kukRed ik;s x;sA ijh{k.k ifj.kke izn’kZ , esa xkatk gSA** 41. Constable Rajkumar Chandra (PW-9) specifically deposed that he took the sample from Police Station and delivered the same at FSL, Raipur and its acknowledgement is Ex.-P/33. In Ex.-P/33, it is mentioned that the article was received from Constable No.347, Rajkumar Chandra, O.P. Naila at 10/02/09. 42. Constable Rajkumar Chandra (PW-9) specifically deposed that he took the sample from Police Station and delivered the same at FSL, Raipur and its acknowledgement is Ex.-P/33. In Ex.-P/33, it is mentioned that the article was received from Constable No.347, Rajkumar Chandra, O.P. Naila at 10/02/09. 42. The sample was taken on 07-02-2009 and the same was received at FSL, Raipur on 10-02-2009, i.e., after 3 days of the seizure and taking of the sample. The appellant has not been able to prove that the seal put on the article of sample was in any manner tampered with before the sample was examined by the chemical examiner. There was merely a delay of 3 days in sending the sample to the FSL. It is not proved as to how the aforesaid delay of 3 days affected the said examination. 43. When it could not be proved that the seal of the sample was in any manner tampered and 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. 44. In the instant case, it is apparent that the provisions of Sections 42, 50, 55 and 57 of the Act, 1985 are substantially complied with. 45. I find no infirmity in the impugned judgment of conviction and sentence passed by the learned Special Judge. 46. So far as sentence is concerned, learned counsel for the appellant submitted that the quantity of the seized ganja was 8 kgs. and 50 grams, and the appellant was sentenced to undergo R.1. for 8 years. Looking to the quantity of the ganja, the sentence awarded to the appellant is so harsh. He further submitted that the appellant is in jail since 07-02-2009 and he has served jail sentence for about 4 years and 4 months. Ends of justice would be met if the jail sentence awarded to the appellant is restricted to the period already undergone by him. He further submitted that the fine amount has been deposited by the appellant. 47. Shri Mahesh Mishra, learned Panel Lawyer for the State/respondent opposed the above argument. 48. The quantity of ganja seized from the appellant was 8 kgs. and 50 grams. He further submitted that the fine amount has been deposited by the appellant. 47. Shri Mahesh Mishra, learned Panel Lawyer for the State/respondent opposed the above argument. 48. The quantity of ganja seized from the appellant was 8 kgs. and 50 grams. The appellant is in jail since 07-02-2009 and he has served for about 4 years and 4 months of jail sentence. It is stated that he has deposited the fine amount. 49. Considering the facts and circumstances of the instant case, I am of the opinion that ends of justice would be met if, while upholding the conviction of the appellant under Section 20(b)(i)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, the jail sentence awarded to him is restricted to the period already undergone by him. 50. In the result, the appeal is partly allowed. The conviction of the appellant under Section 20(b)(i)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is upheld. However, the jail sentence awarded to him is reduced to the period already undergone by him. So far as the sentence of fine imposed upon him is concerned, it is affirmed. Appeal Partly Allowed.