Judgment U.C. Dhyani, J. 1. One S.I. Girish Kumar Kotiya lodged an FIR at police station Gadarpur, on 16.11.1999, at 4:30 PM, against the appellant and two others, which was registered as case crime no.769/1999 under Section 8/17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The incident allegedly took place on 16.11.1999 at 2:30 PM and the FIR was lodged on the selfsame day at 4:30 PM. The distance between the place of incident and the police station was 7½ km. Hence, there appears to be no delay in lodging FIR. 2. After investigation of the case, a charge-sheet was submitted against the accused-appellant for the offence punishable under Section 8/17 of the Act. When the trial began and prosecution opened it’s case, charge against the accused was framed for the selfsame offence, to which he pleaded not guilty and claimed trial. 3. PW1 S.I. Sudhir Kumar Tomar, PW2 Constable Lakmi Chand, PW3 Constable Rajesh Kumar, PW4 Constable Sohan Lal and PW5 S.I. J. S. Yadav were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C., in reply to which he said that he was falsely implicated in the case and the prosecution witnesses told a lie. No evidence was given in defence. 4. After conclusion of the trial, learned Sessions Judge, District Udham Singh Nagar, vide judgment and order dated 13.05.2002, convicted the accused-appellant under Section 8/17 of the Act and sentenced him to undergo rigorous imprisonment for ten years alongwith a fine of Rs.1 lakh. In default of payment of fine, the appellant was directed to undergo further imprisonment for 3 years. Aggrieved against the same, the present criminal appeal was preferred by the appellant. 5. The prosecution led the evidence through PW1 S.I. Sudhir Kumar Tomar, who said, in his examination-in-chief, that on 16.11.1999, he was posted as Sub Inspector at Police Station Gadarpur. On that day, he alongwith other police personnel (including S.O. Girish Kumar Kotiya, reporter) was busy in patrolling duty. When they reached near village Sarovar Nagar, an informer informed PW1 and other police personnel that three persons were coming from village Sakonia and they were carrying opium unauthorisedly. No public witness was available there. The police took the search of each other and proceeded towards village Sakonia. When they reached near village Sarovar Nagar, an informer informed PW1 and other police personnel that three persons were coming from village Sakonia and they were carrying opium unauthorisedly. No public witness was available there. The police took the search of each other and proceeded towards village Sakonia. When they reached near Kui-Khera, they saw three persons coming from there. When the police personnel tried to interrupt them, they did not stop. They were chased and apprehended at around 2:30 PM. One of these persons disclosed his name as Laxman Dass Kamboj (appellant). Appellant disclosed that he was carrying opium. The appellant was duly informed by S.O. Girish Kumar Kotiya regarding his right of being searched before a Gazetted Officer or a Magistrate, as required under section 50 of the Act, but he declined that offer. The appellant stated that the police personnel might take his search. In this regard, a consent letter was also obtained from him. Appellant appended his thumb-impression on the consent letter (Ex.Ka-1). When the appellant declined to be searched before a Magistrate or a Gazetted Officer, the Station Officer took his search. 4 kg of narcotic substance was found from inside a plastic bag in possession of the appellant. The case property was placed before the trial court. It was presented in a sealed condition, the seal was opened, and the case property was exhibited as material Ex.2 alongwith bag material Ex.1. Prima facie, it appeared that the narcotic substance seized from the possession of the appellant was opium. Appellant was called upon to produce the licence to keep the same, but he could not. Appellant was arrested. Representative sample of the substance (15 gram) was taken out and the remaining substance was kept in a bag under a proper seal. Recovery memo (Ex.Ka-2) was prepared, which was signed, not only by the police personnel, but also acknowledged by the appellant, who put his signatures on the same. Appellant was brought to the police station and FIR was lodged. The information regarding the arrest of appellant was given to Superintendent of Police, Rampur through radiogram. 6. In his cross-examination, PW1 stated that appellant was offered to be searched before a Gazetted Officer or a Magistrate only once. The distance between village Sokonia and the place where the informer met the police, was about 1½ kms. The information regarding the arrest of appellant was given to Superintendent of Police, Rampur through radiogram. 6. In his cross-examination, PW1 stated that appellant was offered to be searched before a Gazetted Officer or a Magistrate only once. The distance between village Sokonia and the place where the informer met the police, was about 1½ kms. Constable Pawan Kumar was sent to village Sarovar Nagar to fetch witnesses, but no public witness came forward to be the witness of such an event. The case property was sealed on the spot. The seized contraband was given to malkhana moharrir, who deposited the same in malkhana. The approximate weight of the narcotic substance was written (the same was not weighed). The consent letter of the accused-appellant was prepared by PW1. Appellant put his signatures on the recovery memo. His family members were informed regarding his arrest. The place of incident was a thoroughfare. The immediate official superior was informed when the narcotic substance was recovered from the possession of appellant. PW1 admitted that the immediate official superior of the police was not informed when the informer gave information to police personnel that the contraband article might be seized from the appellant. 7. PW2 supported PW1 in his examination-in-chief. The statement given by PW2 was almost verbatim reproduction of the evidence of PW1. It will, therefore, be of no use repeating the evidence of PW2, who proved the consent letter (Ex.Ka-1), on the basis of which, chick FIR was lodged. PW2 was cross-examined at length, but, nothing came in his cross-examination to suggest that he was telling a lie or that his testimony should be treated with suspicion. 8. PW3 Constable Rajesh Kumar was posted as Constable Clerk at police station Gadarpur on 16.11.1999. On the basis of recovery memo, PW3 lodged chick FIR (Ex.Ka-5), made an entry of the same in G.D. (Ex.Ka-6) and (Ex.Ka-7). The case property, in sealed condition, was handed over by PW3 to malkhana moharrir, who made the entry of the same in a register. 9. PW4 Constable Sohan was also posted in P.S. Gadarpur. He took the representative sample of the contraband to F.S.L, Agra for chemical examination and obtained a receipt (Ex.Ka-8) thereof. When he proceeded to Agra, an entry of the same was made in G.D. (Ex.Ka-9). Link evidence was, thus, also furnished by the prosecution. 10. 9. PW4 Constable Sohan was also posted in P.S. Gadarpur. He took the representative sample of the contraband to F.S.L, Agra for chemical examination and obtained a receipt (Ex.Ka-8) thereof. When he proceeded to Agra, an entry of the same was made in G.D. (Ex.Ka-9). Link evidence was, thus, also furnished by the prosecution. 10. PW5 S.I. J. S. Yadav stated that on 16.11.1999, he was posted as S.I. in police station Gadarpur. S.O. Girish Kumar Kotia affected the arrest of appellant. The investigation of the case was handed over to PW5, who took the statements of the witnesses, inspected the place of incident, prepared site-plan, took the statement of the accused, sent the representative sample of the recovered substance to the Forensic Science Laboratory (F.S.L.) for chemical examination and, after being satisfied that appellant committed an offence, submitted chargesheet against him. The information regarding the arrest of the appellant in connection with the seizure of contraband was given to District Magistrate, Superintendent of Police and Station Officer through radiogram. The Investigating Officer was cross-examined, but nothing material came out in his cross-examination, which might be of any benefit to the appellant. 11. Compliance of mandatory provisions of the Act was done by the police personnel. When the police personnel was about to search the appellant, he was offered to be searched before a Gazetted Officer or a Magistrate, but the appellant declined such offer, and therefore, the police searched appellant and sent the information regarding the search and recovery of narcotic substance to the immediate official superior through radiogram. A full report of all the particulars of arrest and seizure was, therefore, sent to the immediate official superior. 12. It is true that in the instant case the weighment of the contraband was not done by the police personnel. It was tentative assessment of the police that 4 kg of opium was seized from the possession of the appellant. As per the notification appended to the Act, upto 2.5 kg of opium is the small quantity and the commercial quantity starts from 2.5 kg. Even if, this fact is conceded that 4 kg was only a tentative weight, one has to keep in mind that the commercial quantity starts from 2.5 kg and it cannot be concluded by any stretch of imagination that the opium might be below to 2.5 kg. 13. Even if, this fact is conceded that 4 kg was only a tentative weight, one has to keep in mind that the commercial quantity starts from 2.5 kg and it cannot be concluded by any stretch of imagination that the opium might be below to 2.5 kg. 13. Non-procurement and non-examination of independent witnesses did not prove to be a handicap to the prosecution, in as much as, the prosecution witnesses told, in unequivocal terms, that an effort was made by them to procure the attendance of independent witnesses, but the public did not agree to witness the incident. Although, the names of such witnesses ought to have been disclosed by the police personnel, but nonetheless, the prosecution story could not be disbelieved only on the basis of such minor infirmity, especially when the testimony of police witnesses was intact. Copy of the G.D. dated 09.12.1999 indicated that the representative sample was sent to F.S.L., Agra under the letter dated 03.12.1999 of learned Sessions Judge, Udham Singh Nagar. The report of the F.S.L. dated 11.02.2000 (Ex.Ka-16) confirmed that the representative sample of narcotic substance was opium. 14. On the basis of recovery memo (Ex.Ka-2), chick FIR (Ex.Ka-5) was prepared and entry of the same was made in the G.D. Representative sample was sent to the F.S.L. for chemical examination and thereafter, chargesheet (Ex.Ka-3) was submitted against the accused-appellant. When the police personnel offered the appellant to be searched before a Magistrate or a Gazetted Officer, he gave his consent (Ex.Ka-1) that the police personnel might take his search and declined to be searched before a Magistrate or a Gazetted Officer. PW1 supported the prosecution story. PW2 supported PW1. PW3 proved the chick FIR (Ex.Ka-5) alongwith entry in G.D. (Ex.Ka-6). When the police personnel proceeded to go for patrolling duty, the said fact was entered in G.D. (Ex.Ka-7). PW4 took the representative sample to Agra for chemical examination. PW5 conducted the investigation, prepared the site-plan and, after being satisfied that the appellant committed the offence, submitted a chargesheet (Ex.Ka-14) against the appellant. When the appellant was arrested and contraband was recovered from the possession of appellant, information was given to the District Magistrate and Superintendent of Police by S.O. Girish Kumar Kotiya through radiogram (Ex.Ka-15). PW5 conducted the investigation, prepared the site-plan and, after being satisfied that the appellant committed the offence, submitted a chargesheet (Ex.Ka-14) against the appellant. When the appellant was arrested and contraband was recovered from the possession of appellant, information was given to the District Magistrate and Superintendent of Police by S.O. Girish Kumar Kotiya through radiogram (Ex.Ka-15). Prosecution witnesses were examined on behalf of the accused, but nothing material came in their cross-examination to indicate that the appellant was falsely implicated in the case. No material contradiction or material infirmity came to the fore in the cross-examination of police witnesses. The testimony of police personnel cannot be discarded, simply on the ground that no independent witness was produced. The only thing is that the Courts are required to read the evidence of police witnesses with great care and caution and, if there is no infirmity in the testimony of police witnesses, then their oral evidence should be accepted. 15. On a close scrutiny of facts and circumstances of this case, this Court is of the opinion that it is such a case in which the accused-appellant could be held guilty and could be convicted on the basis of such prosecution evidence. The prosecution evidence was correctly discussed and appreciated by learned trial court. There is no illegality in the impugned judgment and order. This Court also assessed the prosecution evidence independently to come to same conclusion as was arrived at by the trial court. No interference is, thus, called for in the impugned judgment and order. 16. Learned Amicus Curiae cited two rulings, namely, Sukhdev Singh vs. State of Haryana, (2013) 2 SCC 212 and Kishan Chand vs. State of Haryana, (2013) 2 SCC 502 for the appellant. Learned Amicus Curiae was at pains to emphasize that the mandatory provisions of sub-section (2) of Section 42 of the Act were not complied with by the police personnel in the instant case. This Court is unable to subscribe to the contention of learned Amicus Curiae, for the reason that he lost sight of the fact that Section 42(2) of the Act was introduced by the Parliament, vide Act no.9 of 2001, w.e.f. 02.10.2001 and present incident took place on 16.11.1999. Criminal law has no retrospective effect. 17. While discussing the provision of Section 42(2) of the Act, Hon’ble Supreme Court observed in Sukhdev Singh’s case (supra) as below:- “15. Criminal law has no retrospective effect. 17. While discussing the provision of Section 42(2) of the Act, Hon’ble Supreme Court observed in Sukhdev Singh’s case (supra) as below:- “15. Section 42 can be divided into two different parts. First is the power of entry, search seizure and arrest without warrant or authorisation as contemplated under sub-section (1) of the said section. Second is reporting of the information reduced to writing to a higher officer in consonance with sub-section (2) of that section. Subsection (2) of Section 42 had been a matter of judicial interpretation as well as of legislative concern in the past. Sub-section (2) was amended by the Parliament vide Act 9 of 2001 with effect from 2nd October, 2001. After amendment of this sub-section, the words ‘forthwith’ stood amended by the words ‘within 72 hours’. In other words, whatever ambiguity or leverage was provided for under the unamended provision, was clarified and resultantly, absolute certainty was brought in by binding the officer concerned to send the intimation to the superior officers within 72 hours from the time of receipt of information. The amendment is suggestive of the legislative intent that information must reach the superior officer not only expeditiously or forthwith but definitely within the time contemplated under the amended sub-section (2) of Section 42. This, in our opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safeguards provided to an accused more meaningful. In the present case, the information was received by the empowered officer on 4th February, 1994 when the unamended provision was in force. The law as it existed at the time of commission of the offence would be the law which will govern the rights and obligations of the parties under the NDPS Act.” 18. Even if, it is conceded for the sake of argument that the police witness was required to send the information to the immediate superior official within 72 hours from the time of receipt of information, the fact remains that the information to District Magistrate, Superintendent of Police and Circle Officer concerned was sent by Station Officer, Police Station Gadarpur on the selfsame day, i.e., 16.11.1999. The contraband was recovered from the possession of the appellant on 16.11.1999 at 2:30 PM. The information of the same was given to the immediate official superior much before expiry of 72 hours. The contraband was recovered from the possession of the appellant on 16.11.1999 at 2:30 PM. The information of the same was given to the immediate official superior much before expiry of 72 hours. 19. It will also be appropriate to excerpt herein the observations made by Hon’ble Apex Court in Kishan Chand’s case (supra):- “17. In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnail Singh vs. State of Haryana, (2009) 8 SCC 539 . In that judgment, the Court in the very opening paragraph noticed that in the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, [ (2000) 2 SCC 513 ], a three Judge Bench of the Court had held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate officer superior may cause prejudice to the accused. However, in the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692 , again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non-compliance of the provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. But, if there is delay, whether it was undue or whether the same was explained or not, will be a question of fact in each case. The Court in paragraph 35 of the judgment held as under: (Karnail Singh’s case (supra) 35. In conclusion, what is to be noticed is that Abdul Rashid (supra) did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham (supra) 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 inform 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. 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. 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.” 20. In view of above, the criminal appeal has no substance and is, therefore, dismissed. The impugned judgment and order, as also the conviction and sentence awarded to the appellant is hereby affirmed. The accused-appellant is on bail. His bail is cancelled. Appellant is directed to surrender before the Court concerned forthwith to serve out the sentence awarded to him by learned trial court and affirmed by this Court. 21. Let the lower court record alongwith a copy of the judgment be sent to the Court below for compliance.