Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 435 (JK)

Amit Sharma v. State and others

2015-08-24

HASNAIN MASSODI, JANAK RAJ KOTWAL

body2015
JUDGMENT : Per Kotwal-J Appellant Amit Sharma is in appeal against judgment dated 08.07.2014 of the learned Sessions Judge, Kathua in file No. 68/Special, whereby the appellant has been convicted under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and order dated 09.07.2014, whereby appellant has been sentenced to undergo rigorous imprisonment for a term of fifteen years and to pay a fine of two lac rupees. It is ordered also that in default of payment of fine appellant shall undergo further rigorous imprisonment for two years. 2. Heard. We have perused the record. 3. Facts of the prosecution case, briefly, are that on 16.05.2010 the SHO Police Station, Kathua, Sandeep Mahajan, Inspector (PW-8), was on patrolling duty by his official 'Gypsy' in Shastri Nagar area accompanied by Pardeep Singh, SPO No. 1027 (PW-1) Davinder Singh, Ct. No. 31 (PW-2), Surinder Singh, Ct. No. 935 (PW-3) and Ravi Singh, SPO No. 130, (Pw-4). At about 10:00 PM they found the appellant (accused) coming from 'Hatli Morh1 towards Kathua. He was carrying a white colour plastic bag. The bag on checking was found containing 7605 pan/on spas' capsules in 39 black plastic envelops, each containing 195 capsules. The appellant disclosed his identity as Amit Sharma alias Vicky s/o Vinod Sharma alias Shinder Paul r/o. Ward No. 14, Kathua. The SHO separated ten capsules as sample for chemical analysis and sealed them under Mark-A-1. He also seized and sealed the main bulk of the capsules under Mark-A. The SHO then dispatched a docket (Exp. P-8) to the Police Station for registration of FIR through constable Ravi Singh directing also that investigation be entrusted to Ghansham, Sub Inspector. On the basis of this docket FIR No. 148/2010 under sections 8/21/22 of the Act was registered and Sub Inspector, Ghansham (PW-6) took up the investigation. The Investigating Officer (1.0.) proceeded to the place of occurrence. He prepared sketch map (Ext. P-6) of the place of occurrence and took possession of the seized material and the seizure memo prepared by the SHO. The I.O. got the sample resealed from Executive Magistrate 1st Class, Kathua (PW-5), obtained authority letter from him and dispatched the sample to FSL, Jammu for its chemical analysis. He prepared sketch map (Ext. P-6) of the place of occurrence and took possession of the seized material and the seizure memo prepared by the SHO. The I.O. got the sample resealed from Executive Magistrate 1st Class, Kathua (PW-5), obtained authority letter from him and dispatched the sample to FSL, Jammu for its chemical analysis. The 1.0, recorded statements of the witnesses in terms of section 161 Cr.P.C. and after compliance of all formalities found commission of offence under section 8/21/22 of the Act by the appellant. 4. The SHO Police Station, Kathua filed charge sheet in the Court of learned Sessions Judge, Kathua for trial of the accused for offence under section 8/21/22 of the Act. Learned trial court upon consideration of the record of the case and documents submitted in support of the charge sheet vide his order dated 28.09.2010 framed, charge under sections 8/21/22 of the Act against the appellant(accused). Appellant denied the charge and claimed to be tried. Prosecution entered its evidence and produced nine witnesses before the trial court, namely, Pardeep Singh, SPO(PW-1), Davinder Singh (PW-2), Surinder Singh, (PW-3), Ravi Singh (PW-4), Avtar Singh, Executive Magistrate (PW-5), Ghansham, Sub Inspector(PW-G), Amit Singh, Sub Inspector (PW-7), Sandeep Mahajan, Inspector (PW-8) and Pawan Abrol, Chemical Analyst (PW-9). The trial court recorded statements of the appellant (accused) in terms of section 342 Cr.P.C. Appellant did not lead any evidence in defence. 5. Learned trial court after appraisal of the evidence and dealing with the contentions raised by the defence arrived at a conclusion that 'the prosecution has thus established that accused was found in possession of 7605 capsules of 'parvon spas', which as per the report of the Chemical Analyst, FSL, Jammu, was narcotic substance'. Learned trial court, having regard to the total number of capsules recovered from the possession of the appellant (accused) and their constituents as per the Chemical Analyst's report, arrived at a conclusion that the narcotic substance recovered from the accused was in commercial quantity. Learned trial court held that the accused was in possession of narcotic substance in violation of the provision of section 8(c) of the Act. Learned trial court, thus, convicted and sentenced the accused 8/21(c) of the Act. Hence, this appeal. 6. Appellant (accused) assails his conviction and sentence on the grounds that the impugned judgment and order are against facts, circumstances and law and the evidence in the case. Learned trial court, thus, convicted and sentenced the accused 8/21(c) of the Act. Hence, this appeal. 6. Appellant (accused) assails his conviction and sentence on the grounds that the impugned judgment and order are against facts, circumstances and law and the evidence in the case. It is contended that learned trial court has failed in appreciating that the date of alleged occurrence is 16.05.2010 whereas the admitted case of the prosecution is that the accused was arrested on 17.05.2010 that is a day after the alleged recovery. Besides, it is contended that the investigation of the case was conducted in violation of sections 40 to 57 of the Act. It is contended further that learned trial court did not take note of the fact that the sample was taken only from one out of thirty nine packets allegedly recovered from the accused and the huge delay in receipt of the samples in FSL, Jammu. Contextually, it is contended that learned trial court did not take note of the fact that the seal said to have been used for sealing the recovered material, which was kept on sapurdari of PW Ct. Davinder Singh, was not produced before the court. It is contended also that no independent witness was associated with the investigation and entire judgment is based on uncorroborated evidence of investigating agency. 7. We have scrutinised and appraised the entire record and the evidence on the trial court file. We have heard Mr. Basit Manzoor Keng, learned counsel for the appellant and Mr. S. S. Nanda, learned Senior Additional Advocate General for the State. We have accorded our consideration to all the important grounds which were urged before us by Mr. Keng. We are taking up all the grounds in the same order in which they were urged before us. Recovery and date of arrest 8. The factum of recovery of the contraband from possession of the accused has been assailed on two grounds. One, that learned trial court has relied upon uncorroborated evidence of the members of the police party as no independent person was associated with the recovery, seizure or sealing and sampling by the police and two, that alleged recovery is said to have taken place on 16.05.2010 whereas admittedly accused was arrested on 17.05.2010, that is, a day after the date of alleged recovery. 9. 9. As per the prosecution case, the accused was accosted by the police party and recovery of the contraband effected from him at 10.00 PM on 16.05.2010. FIR was registered on the same day at 10.45 PM and as per the 'fard griftari' (arrest-memo) accused was arrested at 1.00 AM on 17.05.2010, that is, the night intervening 16th and 17th. In this backdrop, Mr. Keng, learned counsel for the appellant urged with much vehemence that the appellant has been falsely implicated inasmuch neither he was present on spot at the time of alleged recovery nor any recovery or seizure was effected from him. Learned counsel sought to draw support from the sketch map (Ext.-P6) of the place of occurrence, which he argued was prepared by the I.O. but does not indicate the presence of the appellant on spot. Mr. Keng thus, argued that the very fact that the accused is shown to have been arrested a day after the date of alleged recovery creates a serious doubt about involvement of the accused and strengthens the plea that he has been falsely implicated. Mr. Keng relied upon Iqbal Singh v State of Punjab, 1998 (3) R.C.R. (Criminal) 759. Contextually, Mr. Keng argued that learned trial court has fallen into error by relying upon the uncorroborated evidence of police personnel only, who are interested witnesses and ignoring that no independent witness was associated with alleged recovery. 10. In regard to the recovery of 7605 capsules from the possession of the appellant (accused), learned trial court has relied upon the evidence rendered by PWs Sandeep Mahajan, SHO, Police Station, Kathua, Davinder Singh, and Surinder Singh, constables and Pardeep Singh and Ravi Singh SPOs. We have read the depositions of these witnesses both in their chief as well as the cross-examination. We have found a sense of truth and unanimity in their say that they were on patrolling duty, accusrd was found coming from 'Hatli Morh’ towards Kathua, he was carrying a white plastic bag and on search of the bag it was found containing 'parvon spas' capsules kept in 39 envelops each containing 195 capsules and that the total number of capsules found in possession of the accused was 7605. It has also come in their evidence that out of the whole lot of 7605 capsules, 10 capsules were separately packed and sealed as sample under Mark A -1 and the main bulk was seized and sealed under Mark A. Ocular evidence rendered by these witnesses is corroborated by the seizure memo (Ext. P1/12) in which it is recorded that 39 envelops each containing 195 parvon spas' capsules were found in the plastic bag which was in possession of the accused, total number of capsules was 7605, ten capsules were separated as sample and sealed under mark A-l for chemical analysis and the remaining bulk of capsules was sealed under mark A. We on carefully reading of the depositions of these witnesses in cross-examinations could not find anything nor appellant's counsel could point out anything substantial which may create any doubt about the possession of these capsules by the accused and recovery and seizure of these capsules by the SHO. 11. All the above five witnesses are police personnel indeed who were on patrolling duty under the command of one of them, that is, SHO of the Police Station. Their evidence, however, neither can be rejected nor looked with suspicion as there is no general law that uncorroborated evidence of police personnel should not be made basis for proof of a fact in criminal trials. Unless the defence shows on the basis of facts and circumstances of a case that a witness has a reason to falsely implicate an accused, no witness can be branded as an interested witness and his evidence discarded even if he is a police personnel attached with the Police Station, which has launched prosecution in a given case. It is indisputable that recovery of the capsules came to be effected by chance in a routine search of the bag of the accused during patrolling of the area by the police party in the night without any information relating to the accused. We cannot infer from the evidence that any civilian might have been present at the time of search and was deliberately not associated by the police party. 12. Question relating to the probative value of the evidence of police personnel seems to have been raised before the trial court also. We cannot infer from the evidence that any civilian might have been present at the time of search and was deliberately not associated by the police party. 12. Question relating to the probative value of the evidence of police personnel seems to have been raised before the trial court also. Learned trial court has observed that joining of the any independent witness was not possible because accused was apprehended while the police was on patrolling, no shop was open nor any civilian in the area was moving at that time. Learned trial court has referred to the observation of the Supreme Court in a judgment reported as 2013 (3) Criminal Court Cases 76 (SC) that there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspicion. Learned trial court also relied upon another Supreme Court judgment reported as 2013(3) Criminal Court Cases (736). We find no valid reason for differing with the view taken by the learned trial court. 13. We have noticed that the appellant (accused) did not raise any dispute relating to the time of his arrest nor did he plead that he was arrested a day after the alleged recovery before the learned trial court either in his statement under section 342 Cr.P.C. or in the submission on his behalf at the time of argument in the case. In his statement under section 342 Cr.P.C. the accused denied everything that was found incriminating against him in the prosecution evidence including his having come across the police patrol, search of his bag and recovery of the capsules from the bag. Neither did he clearly deny his arrest by the police from the place of recovery nor did he plead that he was arrested at a later point of time from a place other than the place of alleged recovery. We, nonetheless, have accorded consideration to the plea in this regard as raised In this appeal. 14. We may reiterate briefly that as per the prosecution case and the evidence produced before the trial court, the accused was accosted by the police party headed by the SHO and recovery effected from him at 10.00 PM on 16.05.2010 and as per the arrest memo, accused was arrested by 1.0. Ghansham at 1 O'clock in the night on 17.05.2010. Contextually, we have noticed in the evidence of the 1.0. Ghansham at 1 O'clock in the night on 17.05.2010. Contextually, we have noticed in the evidence of the 1.0. that information about having been appointed I.O. in the case was received by him at 11 PM and he reached at the place of recovery from the Police Station within ten minutes. He found the SHO and other police personnel and the accused on there. After completing the proceedings on spot the I.O. had reached back in the Police Station at about 1 O'clock in the night and had thereafter, started recording statement of the witnesses. The I.O. has proved the arrest memo (Ext. P-1) and has stated in cross-examination that he had arrested the accused on spot on the day of occurrence in presence of the SHO. 15. What is clear from the evidence of the I.O. and we cannot entertain any doubt in this regard that after the recovery and seizure of the capsules by the police party headed by the SHO, the I.O. had reached at the place of recovery at 11.00 PM, proceedings at the place of recovery continued up to 1 in the night, the accused was arrested by the I.O. at the place of recovery and after that the I.O. returned to Police Station and started recording of statements of the witness under section JB1 Cr.P.C. In such a clear narration of the events by the I.O. the mere showing of the time of arrest of the accused as 1 O'clock in the arrest-memo cannot be interpreted in a way so as to hold that the accused was not present on spot, he was arrested a day after the recovery and illegally foisted with recovery of a contraband not recovered from him. The entry in the arrest memo cannot be used to demolish the clear and cogent evidence in regard to arrest of and recovery of the capsules from the accused. The Iqbal Singh's case (supra) relied upon by Mr. Keng is clearly distinguishable in its application to the case on hand. In that case, the recovery allegedly was effected on 26.06.1995, appellant Iqbal Singh in his statement recorded under section 313 Cr.P.C. (342 State Code) had clearly pleaded that he was innocent and that he was taken from his house, was illegally detained by the police and later on falsely implicated in that case. In that case, the recovery allegedly was effected on 26.06.1995, appellant Iqbal Singh in his statement recorded under section 313 Cr.P.C. (342 State Code) had clearly pleaded that he was innocent and that he was taken from his house, was illegally detained by the police and later on falsely implicated in that case. He had led evidence before the trial court that his wife DW Sharanjeet Kour had sent a telegram on 25.06.1995 requesting the SSP, Amritsar to intervene in the matter as her husband has been arrested by the police on 22.06.1995 at about 12 noon without any reason. The High Court of Punjab and Haryana, therefore, was of the view that there was a clear indication that appellant was already in custody of the police prior to 25.06.1995 and was implicated in the case under NDPS Act by showing the recovery to have been made from him on 26.06.1995. Violation of mandatory provisions of NDPS Act 16. Learned counsel for the appellant argued that provisions of section 42 (1) of the Act have been violated as the 1.0. as soon as he came on spot should have taken down in writing the information received by him and sent a copy thereof to his superior officer within 72 hours, which however, was not done. Mr. Keng argued further that there had been violation of section 52 (3) (a) and (b) by not forwarding the seized material and the arrested person to the officer-in-charge of the Police Station. Mr. Keng argued that there had been violation of section 55 which mandates that the officer-in-charge of the Police Station shall take charge of the recovered material and the sample and seal and keep the same in his safe custody which, was not done too and that there had been blatant violation of section 57 as I.O. did not report the arrest and seizure to his immediate superior officer within 48 hours. 17. Sections 41, 42, 52, 55 and 57 of the Act are comprised in Chapter V of the Act that deals inter alia with the procedure for effecting search, arrest and seizures material and samples. Section 41 of the Act deals with issue of warrant or authorisation for arrest of a person or search in relation to commission of any offence under the Act. Section 41 of the Act deals with issue of warrant or authorisation for arrest of a person or search in relation to commission of any offence under the Act. Section 42(1) provides for the officers whom the Central Government or the State Government, as the case may be, may empower to search any building, conveyance or place where such officer has a reason to believe from personal knowledge or information given by any person and 'taken down in writing' a contraband, that is, any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under the Act is kept or concealed or detain or arrest any person whom he has reason to believe to have committed any offence punishable under the Act. 18. Proviso to section 42(1) of the Act further empowers such officer to enter and search such building, conveyance or place without warrant or authorisation as per section 41 any time between sunset and sunrise when he has 'reason to believe' that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of the offender. Section 42(2), however, casts a duty on the officer who has taken down any information in writing under sub section (1) or has recorded grounds for his belief under proviso to sub section (1) to send a copy thereof to his immediate official superior within seventy two hours. 19. Important condition of section 42 is that the empowered officer in exercising his power of search or arrest without warrant must be acting on a prior personal knowledge or information given by any person about commission of an offence punishable under the Act or keeping or concealment of incriminating material in the premises or the conveyance as also his reasonable belief that obtaining arrest or search warrant under section 41 will afford opportunity for concealment of the evidence or facility for escape of the offender. In such a case the empowered officer is required to take down in writing the information received by him and to record reasons of his belief and to send a copy thereof to his immediate official superior. Such a course, however, would neither be possible nor required when search or arrest is effected without any prior knowledge or information or to say in particular the search or arrest is effected in the normal course of policing by a police party or police officer. 20. Argument of learned counsel for appellant relating to violation of section 42(1) is without any substance for the simple reason that indisputably the patrolling party headed by SHO PW Sandeep Mahajan while searching and effecting recovery of the capsules from the appellant had not acted on any prior knowledge or information about possession of these capsules by the appellant. The appellant rather was accosted by the policy party and his bag searched during a routine patrolling so no information or reasons as contemplated under section 42 of the Act were required to be recorded. 21. The argument of learned counsel for appellant that the I.O. had came on spot on a prior information about commission of offence by the appellant so he should have complied with requirement of section 42 by reducing the information into writing and sending its copy to its immediate superior officer from its very nature is superficial and without any substance. It may be pointed out that requirement of section 42 is to be fulfilled by the officer effecting the search or arrest of the accused and not by I.O. of the case if he has not effected the search. That apart, the immediate Station. The I.O. had come on spot after having been appointed as Investigating Officer in the case registered on the basis of the information lodged by the SHO from the place of recovery through a docket so no question of sending any information by the I.O. to the SHO can be entertained. 22. Sections 52, 55 and 57 of the Act deal with the steps to be taken pursuant to search, arrest or seizure in terms of sections 41, 42, 43 or 44. Argument of Mr. Keng firstly is that the I.O. has violated section 52 (3)(a) and (b) by not forwarding the seized material(capsules) and the allegedly arrested person to the officer-in-charge of the Police Station. Argument of Mr. Keng firstly is that the I.O. has violated section 52 (3)(a) and (b) by not forwarding the seized material(capsules) and the allegedly arrested person to the officer-in-charge of the Police Station. The argument also is that section 57 of the Act has been violated as the 1.0. after allegedly arresting the appellant was duty bound to report the full particulars of arrest and seizure to his immediate official superior within forty eight hours. In support of these arguments, Mr. Keng relied upon Mohinder Kumar v State of Panaji Goa, (1998) 8 SCC 655 , Thandi Ram v. State of Haryana, AIR 2000 SC 468 , Gurbax Singh v. State of Haryana, AIR 2001 SC 1002 and Harbans Singh v. State of Punjab and Haryana, 2014(3) Crimes 386. 23. Under section 52(3)(a) and (b) of the Act, the officer arresting a person and seizing a material said to be contraband under section 41, section 42, section 43 or section 44 is required to forward the said person and the material to the officer-in-charge of the nearest police station or the officer empowered under section 53. Under section 57, the person making arrest or seizure under the Act is required to make a full report of all the particulars of such arrest or seizure to his immediate official superior. 24. Legal position in regard to compliance of sections 52 and 57 of the Act by now is well settled. These two sections cast a duty on the officer effecting search and seizure under sections 41, 42, 43 and 44 to take steps in relation to the arrested persons and the seized articles in the manner as provided therein. Compliance with provision of section 52 and 57, however, is directory in nature and non compliance or no strict compliance therewith will not vitiate or render illegal the act of arrest or seizure on the whole. In such a situation the court shall consider the non compliance or no strict compliance along with other circumstances and in order to avail benefit thereof defence will have to show that prejudice has been caused to the accused. The question of compliance of sections 52 and 57 has been considered by the Supreme Court in the State of Punjab v. Balbir Singh, AIR 1994 Supreme Court 1872. Paras 25 and 26 (6) of the reporting are important, which read: “25. The question of compliance of sections 52 and 57 has been considered by the Supreme Court in the State of Punjab v. Balbir Singh, AIR 1994 Supreme Court 1872. Paras 25 and 26 (6) of the reporting are important, which read: “25. Sections 52 and 57 come into operation after the arrest and seizure under the Act. Somewhat similar provisions are also there in the Cr.P.C. If there is any violation of these provisions, then the Court has to examine the effect of the same. In that context while determining whether the provisions of the Act to be followed after the arrest or search are directory or mandatory, it will have to be kept in mind that the provisions of a statute creating public duties are generally speaking directory. The provisions of these two sections contain procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the acts done by these officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalidate such arrest or search. But such violation by itself joes not invalidate the trial or the conviction if otherwise there is sufficient material. Therefore it has to be shown that such non-compliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proper explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the courts have to appreciate the evidence and the merits of the case bearing these aspects in view. However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution.” “26. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of Evidence regarding arrest or seizure as well as on merits of the case.” 25. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of Evidence regarding arrest or seizure as well as on merits of the case.” 25. Judgments in Mohinder Kumar(supra), Harbans Singh (supra), Gurbax Singh (supra) and Thandi Ram (supra) relied upon by learned counsel for appellant too do not state legal position in regard to sections 52 and 57 of the Act other than that stated in Balbir Singh's case (supra). In all these cases contention in regard to non compliance of the provisions of these two sections have been accorded consideration in context of the facts of those cases though in Gurbax Singh, Supreme Court has in clear terms reiterated the legal position by observing in para No. 9 of the reporting that: “.....It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipsofacto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article...” 26. Given the facts and the circumstances in which the search was effected and recovery and arrest were made and the events thereafter as stated above there was substantial compliance of the aforementioned requirements of sections 52 and 57 in the normal course and it cannot be said that compliance was not made or that any prejudice has been caused to the appellant by the manner in which such compliance was made. It is in the evidence of I.O. PW Ghansham, Sub Inspector that the seized material and the accused were brought to Police Station. The seized material was handed over to the 'mohrar' of the Police Station and accused was detained in the lockup. The factual position, thus, emerging is that the accused was searched and recovery was effected by a police party headed by a SHO. The I.O. came on spot after the FIR was registered on the information lodged by the SHO and the I.O. brought the accused and the seized material to the Police Station. The factual position, thus, emerging is that the accused was searched and recovery was effected by a police party headed by a SHO. The I.O. came on spot after the FIR was registered on the information lodged by the SHO and the I.O. brought the accused and the seized material to the Police Station. Requirements of sections 52 and 57, thus, were substantially fulfilled and neither it can be said nor it has been satisfactorily explained by the learned appellant's counsel as to how any prejudice was caused to the appellant in the entire process. Compliance of section 55/ safe custody of seized material 27. Section of 55 of the NDPS Act deals with safe custody of the contraband/sample, it mandates an officer-in-charge of a police station to take charge and keep in safe custody article seized under the Act within the local area of that police station which may be delivered to him and also allow any officer who may accompany such article to the police station or who may be deputed for the purpose to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of officer in-charge of the-police station. Compliance of section 55 has its importance in regard to the link evidence to establish that the material seized from an accused was contraband as per its chemical analysis and offence under the Act has been committed. Contention raised before the trial court on behalf of defence was that there was no sufficient evidence nor the procedure was followed in regard to forwarding the sample to FSL, keeping the contraband in 'malkhana' and that there had been unexplained delay of about twelve days in forwarding the sample to the FSL creating apprehension to believe that the sample might have been tampered with. Similar contentions have been raised in this appeal as well. 28. Mr. Keng, learned counsel for the appellant would say that the sample said to have been separated by the SHO was not representative in character as it was taken from one out of 39 packets allegedly found in the bag of the appellant. Similar contentions have been raised in this appeal as well. 28. Mr. Keng, learned counsel for the appellant would say that the sample said to have been separated by the SHO was not representative in character as it was taken from one out of 39 packets allegedly found in the bag of the appellant. Learned counsel sought to point out that there is no evidence that there had been handing over and taking over of the contraband said to have been recovered from the appellant between the SHO and the I.O. inasmuch as seizure memo (Ext. P1/2) is silent in this regard. Learned counsel sought to point out further that as per the evidence of the Chemical Analyst PW Pawan Abrol, the sample was bearing seals of SHO and Executive Magistrate only whereas section 55 of the Act mandates that the sample should be sealed by the officer-in-charge of the police station as well. Mr. Keng argued that under section 55, the office-in-charge of the Police Station is required to take charge of the seized contraband and has to seal the same and keep it in his safe custody which in this case has not been done. Learned counsel also submitted that there had been delay of twelve days in sending the sample to the Laboratory and during this period the seal used for sealing the sample and the main bulk remained in custody of a police constable so there was every possibility of tampering with the sample. Learned counsel thus, concluded that prosecution has failed to lead sufficient and satisfactory evidence to establish the link between the seized substance and the report of the chemical examiner relied upon by the prosecution. Learned counsel relied upon Thandi Ram (supra) and Gurbax Singh (supra) and Ouseph v. State of Kerala (2004) 10 SCC 647 . 29. Factual aspect in relation to sampling and the safe custody of the seized material (7605 capsules) and the sample as it emerges from the evidence needs to be restated in brief. We may state that prosecution evidence coming through depositions of the members of the patrolling party and the I.O. in this regard can be safely relied upon and we may state also that there is no serious assail to the evidence in this behalf by the appellant. 30. We may state that prosecution evidence coming through depositions of the members of the patrolling party and the I.O. in this regard can be safely relied upon and we may state also that there is no serious assail to the evidence in this behalf by the appellant. 30. It is clear from the evidence and can be taken as sufficiently proved that the sealing and sampling of recovered material (capsules) was done by the SHO at the place of recovery before the I.O. reached there. Capsules contained in all the 39 envelops found in the bag of the appellant were counted on spot and their number was found as 7605. Ten out of these 7605 capsules were separated and sealed as sample under Mark A1 and the remaining bulk was sealed as Mark A. This aspect has been clearly explained by the SHO, PW Sandeep Mahajan, in his cross-examination stating that the capsules lying in different envelops were counted by the police personnel and after counting their number was ascertained. We have noticed discrepancy in the evidence as regards the selection of the ten capsules for sample but we feel inclined to rely upon the version of PW Davinder Singh who in cross-examination has accepted suggestion of the defence that capsules found in the 39 envelops were put together and ten capsules were separated from the whole lot. It is, thus, clear that ten capsules were separated from whole bulk of 7605 and not from the capsules contained in any one or few envelops. 31. Correct it is, as pointed out by learned appellant's counsel, that the seizure memo (Ext. P-2/1) does not clearly speak about the handing over and taking over of the seized material between the SHO and the I.O. but no doubt in this regard can be entertained as the SHO in his deposition has clearly stated that the seizure memo as well as seized articles were handed over by him to the I.O. and the I.O. has clearly stated that he brought the accused and the seized material to the Police Station. Further it is in the evidence of the I.O. that the seized material was entrusted by him to 'mohrar' of the Police Station and in the course of investigation he had got the packet re-sealed from the Magistrate and delivered the same at FSL. Further it is in the evidence of the I.O. that the seized material was entrusted by him to 'mohrar' of the Police Station and in the course of investigation he had got the packet re-sealed from the Magistrate and delivered the same at FSL. In cross-examination I.O. has stated that the re-sealing of the sample was done on 18.05.2010 and the same was forwarded to FSL on 28.05.2010. The I.O. however, on being questioned did not explain the delay from 18th to 28th in sending the sample to FSL. Contextually, the Executive Magistrate, PW Avtar Singh, Tehsildar, Kathua has stated that he re-sealed a sealed packet which was produced before him by a Sub Inspector on 18.05.2010 and issued authority letter to Director General, FSL, Jammu authorising him to break the seal for the purpose of chemical analysis of the contents. He has proved the certificate/authority letter issued by him as Ext. P5. This certificate would show further that a sealed packet bearing mark A-1 relating to FIR No. 148/2010 of Police Station, Kathua under section 8/21/22 of the Act was produced before the Executive Magistrate by the I.O. on 18.05.2010 and was re-sealed by the Executive Magistrate. In his authority letter the Executive Magistrate had clearly stated that the packet was bearing three seals of the Police and two seals of the Executive Magistrate. The impression of the seal used by the Magistrate was also given on the authority letter. In this context evidence rendered by the Chemical Analyst PW Pawan Abrol by his deposition before the trial court and report(Ext. P-9) would show that the sealed packet was received at FSL, Jammu on 28.05.2010 under forwarding letter of Dy. SP, HQ, Kathua bearing No. RDR/10/2091-93/HQ dated 19.05.2010. The Chemical Analyst had found the packet sealed with five seals which were intact. Two of the seal impressions on the packet tallied with the specimen seal impression given in the authority letter of the Executive Magistrate and three tallied with the seal impression which was forwarded by the Dy. SP, HQ, Kathua. The packet was found containing ten cherry red coloured gelatine capsules named as 'pan/on spas' wrapped in polythene to which Chemical Analyst collectively gave the exhibit No. P-1183/10. On analysis of these capsules following result was recorded by the Chemical Analyst in his report dated 15.07.2010 (Ext P-9). SP, HQ, Kathua. The packet was found containing ten cherry red coloured gelatine capsules named as 'pan/on spas' wrapped in polythene to which Chemical Analyst collectively gave the exhibit No. P-1183/10. On analysis of these capsules following result was recorded by the Chemical Analyst in his report dated 15.07.2010 (Ext P-9). “RESULT The Exhibit were subjected to various Chemical tests and Chromatograph examination and the result arrived at is as under:- 1) Dectropropoxyphene Hydrochloride, Dicyclomin Hydrochloride and Paracetamol were found present in the exhibit NO: P-1183/2010 2) Dextropropoxyphene Hydrochloride is Narcotic Analgesic 3) Dicyclomine Hydrochloride is Anti-cholinergic. 4) Paracetmol is Antipyretic and Analgesic” 32. We may, thus, summarise briefly that as per the prosecution evidence, which we can safely rely upon, the SHO (PW-8) had sealed the main bulk of the capsules recovered from the accused and marked them as 'A' and ten capsules taken as sample from the main bulk and marked them as A-1 at the place of recovery and handed them over to the I.O. at the place of recovery itself. On the same day the 1.O. entrusted these packets to 'mohrar' of the Police Station on his return from the place of recovery. On the third day, that is, on 18.05.2010, the I.O. got the packet containing the sample, that is, Mark A-1 re-sealed from the Executive Magistrate (PW-5). On 28.05.2010, the I.O. send this packet to the FSL, Jammu under authority letter of PW-5 and at the time of opening the packet, the Chemical Analyst (PW-9) found all those seals intact on the- packet description whereof was given in the authority letter. Prosecution has, however, failed to explain as to where the sample was kept from 18 to 28th and also we are inclined to agree with appellant's counsel that no more sealing of the main bulk or the sample was done at the Police Station. 33. In the above backdrop, we have accorded consideration to compliance of section 55 of the Act as also the possibility of tampering with the sample. Requirement of section 55 of the Act in effect is that the seized material said to be contraband and its sample if already prepared should be handed over to the officer-in-charge of the territorial police station and the officer in-charge should put his seal on the sample if produced before him or prepared in his presence at the police station. Requirement of section 55 of the Act in effect is that the seized material said to be contraband and its sample if already prepared should be handed over to the officer-in-charge of the territorial police station and the officer in-charge should put his seal on the sample if produced before him or prepared in his presence at the police station. Object of complying with section 55 is to do away with the possibility of changing or tampering with the seized material and the sample in particular. 34. Correct it is that there is no evidence that the I.O. PW-6 on his return had given the sealed packets, 'A' and 'A-1' to the officer in-charge of the police station or that the officer-in-charge had affixed his seal to these packets or either of them. In that there had been no literal compliance of section 55 by the I.O. Nonetheless, it was the SHO of the Police Station, who had sealed the sample and the main bulk at the place of recovery. As per the evidence of the I.O, the I.O. had deposited these packets with the 'mohrar' of the Police Station, who is in-charge of the 'malkhana' immediately on his return to the Police Station and without any unreasonable delay, that is, with a gap of one day only had got the sample re-sealed from the Executive Magistrate on 18.05.2010. 35. In aforementioned factual scenario, there had been substantial compliance with section 55 of the Act and it cannot be said that requirement of section 55 was not fulfilled in a way to rule out possibility of tampering with the sample, particularly for the reason that sample was re-sealed by an Executive Magistrate and all the seals were found intact by the Chemical Analyst. A doubt in regard to tampering might have arisen had the sample not been duly and timely re-sealed by the Executive Magistrate. 36. We have noticed that in Thandi Ram(supra) and Gurbax Singh (supra) relied upon by learned counsel for appellant, the appellants therein were given the benefit inter alia of non compliance of section 55 of the Act in the facts and circumstances of those cases but we understand that Hon'ble Supreme Court has not laid as a rule that if section 55 is not strictly complied with, the conviction will not sustain. In Thandi Ram, learned counsel for the appellant (accused) had relied upon Balbir Singh's case (supra) and Mohinder Kumar's case (supra) but we have noticed that none of these two judgments have any reference to section 55 of the Act. We have noticed further that in Thandi Ram, Supreme Court did not lay down that strict compliance of section 55 was mandatory and one of the factors that weighing with the Supreme Court was that appellant therein had already undergone sentence of nine years. Likewise in Gurbax Singh's case, Supreme Court did not lay down that compliance of section 55 was mandatory though the court gave the benefit of non sealing of the recovered article by the officer-in-charge of the police station as required under section 55 to the accused having regard to the fact that prosecution had not led any evidence whether the Chemical Analyser received the sample with proper intact seals and entertained a doubt whether the same sample was sent to the Chemical Analyser. In Ouseph v State of Kerala(supra), it was pointed out by the learned counsel for appellant (accused) that 'the alleged contraband un-sealed were kept with investigating agency from 04.09.1990 till 28.11.1990 nearly two months without being sealed, therefore, there is every possibility of the same being tampered with/ Learned three-Judge Bench of the Supreme Court observed in para 3 of the reporting that: “.... Under the provisions of section 55 of the same Act, this requirement may not be mandatory but on facts of this case, keeping the contraband articles in an unsealed condition for such a long time creates doubt in our mind. The period of non-sealing in the circumstances of this case does give rise to the doubt that there might have been a possibility of tampering which cannot be ruled out, more so because sample sent to Chemical Examiner is a small quantity....” (underlining by me) 37. Contention in regard to delay of ten days in sending the sample to the Chemical Analyst has been accorded consideration by the learned trial court. Learned trial court pointed out that the sample was re-sealed by the Executive Magistrate on 18.05.2010 and sealing was found intact by the Chemical Analyst. Learned trial court, thus, held that there was no tampering in the sample and rejected defence plea in this regard. Learned trial court pointed out that the sample was re-sealed by the Executive Magistrate on 18.05.2010 and sealing was found intact by the Chemical Analyst. Learned trial court, thus, held that there was no tampering in the sample and rejected defence plea in this regard. Learned trial court relied upon a judgment of Delhi High Court reported as 2013 Criminal Court Cases 784 (Delhi). In that case, High Court of Delhi had found that sample duly sealed were received in the office of FSL and held that 'mere delay of about one month in sending the samples is not fatal to the prosecution case'. Learned trial court also relied upon a Supreme Court judgment reported as 2011(1) Apex Court judgements 689 (SC). Supreme Court in that case has held that 'mere delay in sending sample of narcotic to the office of Chemical Analyst would not be sufficient to conclude that the sample has been tampered with'. Hon'ble Court also noticed that 'there is sufficient evidence to indicate that the delay, if any was only unintentional'. We do not find any good reason for differing with the view taken by the learned trial court mainly for the reason that all the seal impressions which were mentioned by the Executive Magistrate in the authority letter (Ext. P-5) were found intact by the Chemical Analyst (PW-9) and as per his evidence seal used by the Executive Magistrate had tallied with the seal impression affixed by the Executive Magistrate on the authority letter. The Chemical Analyst's report (Ext P-9) therefore, can be safely relied upon and provides a reliable link evidence to prove that the capsules found in possession of appellant contained a narcotic drug. 38. For all that said and discussed above, we do not find any merit in the grounds on which the appellant has assailed the impugned judgment. We have rather found that the learned trial Court has carefully and properly appreciated the evidence and applied settled principles of law while recording conviction against the accused and imposing the sentence. The judgment rendered by the trial Court, therefore, does not deserve any interference in appeal. 39. We have rather found that the learned trial Court has carefully and properly appreciated the evidence and applied settled principles of law while recording conviction against the accused and imposing the sentence. The judgment rendered by the trial Court, therefore, does not deserve any interference in appeal. 39. We, having perused the record in detail, nonetheless, feel persuaded to reduce sentence imposed by the learned trial court, particularly having regard to the young age of the appellant and in order to brighten the scope of reformation in his approach towards choosing source of livelihood in life. Offence punishable under section 8 read with 21 (c) of the Act is punishable with imprisonment which cannot be less than ten years and may extend to twenty years. In addition a convict shall be liable to fine which shall not be less than one lac rupees. In our well considered view imposing the minimum prescribed sentence on the appellant will meet the ends of justice in this case. We, therefore, reduce the sentence of imprisonment imposed by the learned trial court from fifteen years to ten years and the fine from two lac rupees to one lac rupees. We also direct that in default of payment of fine, the appellant shall undergo further imprisonment for a term of one year. 40. Viewed thus, subject to above modification in the sentence, this appeal is dismissed as without any merit and conviction and sentence recorded by the learned trial Court are upheld. 41. Registry shall send a certified copy of this judgment to the trial Court along with record of the case for follow up action.