JUDGMENT : Prashant Kumar Agarwal, J. 1. The accused-appellants have filed these two separate criminal appeals under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 26.3.2011 passed by the Special Judge, NDPS Cases, Jhalawar in Sessions Case No. 26/2009 whereby learned trial Court convicted the appellants-Shri Ramswaroop and Shri Chauth Mal for offence under Section 8/15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as "the Act") and sentenced each of them to undergo rigorous imprisonment for ten years and imposed fine of Rs. one lac and in default thereof to further undergo simple imprisonment for one year whereas appellants-Shri Bal Chand and Shri Mohan Lal were convicted for offence under Section 8/29 of the Act and both of them were also similarly sentenced. As both these appeals arise out of the same judgment and order, with the consent of learned counsel for the parties, they were heard together and are being decided by this common judgment and order. 2. As per the prosecution case, brief relevant facts for the disposal of these appeals are that on 14.4.2009 during "Nakabandi" at Sunel Tiraha within the jurisdiction of Police Station Jhalrapatan when truck bearing registration RJ-20-G-6571 was intercepted at 6.30 a.m. by the then Incharge-Shri Suraj Singh of aforesaid police station, appellant-Shri Chauth Mal was found on the driver seat whereas appellant-Shri Ramswaroop was sitting alongwith him in the cabin of the truck whereas four other persons were also occupant of the said vehicle and suspicion being aroused that the truck may be carrying some contraband, on search being made narcotic drug "Doda Chura" total weight 101 Kg. was found contained in six bags without any valid licence or permit. As at the spot weighing machine was not available, the aforesaid vehicle alongwith appellants-Shri Ramswaroop and Shri Chauth Mal and four other persons found sitted in the vehicle were brought by the police party to the police station where the recovered narcotic drug was weighed. As per prosecution case 250 gms. of the substance was taken from each of the bag as sample and the same was sealed and the remaining substance was also sealed accordingly. As per prosecution case 250 gms. of the substance was taken from each of the bag as sample and the same was sealed and the remaining substance was also sealed accordingly. During the course of investigation information under Section 27 of the Evidence Act having been provided by appellants-Shri Ramswaroop and Shri Chauth Mal to the effect that the recovered narcotic drug (Doda-Chura) was obtained by them from appellants-Shri Bal Chand and Shri Mohan Lal, their respective house was searched and finding them also involved in the incident they were also arrested. After usual investigation charge-sheet for offence under Section 8/15 was filed against appellants-Shri Ramswaroop and Shri Chauth Mal and for offence under Section 8/29 of the Act against Shri Bal Chand and Shri Mohan Lal and in order to prove the charge during trial prosecution produced oral as well as documentary evidence whereas each of the accused-appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution evidence and specifically stated that he has falsely been implicated and in defence produced one Shri Chhitarlal as DW1. Learned trial Court after considering the submissions made on behalf of the respective parties and appreciating and evaluating the evidence made available on record, convicted and sentenced the appellants as already stated. Feeling aggrieved, the appellants are before this Court by way of these two separate appeals. During the course of hearing of these appeals learned counsel for appellant-Shri Mohan Lal stated that he has died during pendency of his appeal. S.B. Criminal Appeal No. 581/2011 3. In support of this appeal learned counsel for the appellants first of all submitted that from the evidence available on record and more particularly from the admissions made by the material prosecution witnesses it is clear that no proper efforts were made and steps were taken by Shri Suraj Singh recovery officer to associate two independent public witnesses in the alleged search and recovery proceedings and in absence thereof recovery of alleged narcotic drug only in presence of police personnel who were members of the police party becomes entirely suspect and appellants are liable to be acquitted on that account only but learned trial Court did not consider this aspect of the matter in a right perspective. It was submitted that the place, where the aforesaid truck was intercepted and searched, is a "Tiraha" where admittedly vehicles ply regularly and nearby a small village and temple etc. are also situated but even then public witnesses were not associated. 4. On the other hand, learned Public Prosecutor submitted that there is ample evidence available on record to show that notice Ex. P2 was issued to Shri Shankar Lal, one of the member of the police party, by recovery officer Shri Suraj Singh asking him to search for independent witnesses so that they can be associated with the search intended to be made of the aforesaid vehicle and in pursuance to that notice Shri Shankar Lal went to the nearby places but no such person was available who could be associated in the proceedings as witness and report to that effect was recorded on the notice Ex. P2 itself and, therefore, it cannot be said that no proper steps were taken by the recovery officer to associate independent witness in the proceedings. It was further submitted that otherwise also search and recovery proceedings cannot be doubted merely in absence of independent public witnesses if Court finds the statements of official witnesses reliable. 5. Although, it is desirable that proper efforts must be made by the recovery officer to associate two or more independent public witnesses in the proceedings to be taken for the search and seizure of the suspected contraband and it is also desirable to examine such witnesses during trial if they were associated at the time of the recovery and in the present case from the evidence available on record it cannot be said that proper efforts were made and necessary steps were taken by the recovery officer to associate independent public witnesses, however, in absence of such witnesses, if the statements of police officers are otherwise reliable and when there is no animosity established against them by the accused, conviction can be based upon their statements also and the entire case cannot be doubted on that account only. In the present case, in order to prove the recovery of contraband from the aforesaid vehicle in presence of appellants, prosecution has produced recovery officer PW9-Shri Suraj Singh and other members of the police party during trial and in their statements nothing has come to doubt their statements and, therefore, in absence of any animosity established by appellants with the aforesaid police officials, the recovery cannot be doubted. Learned counsel for the appellants failed to show anything in the statements of search and recovery witnesses so as to held that no such recovery of narcotic drug having quantity of 101 Kg. was not effected and there is possibility that it was falsely planted only to implicate the appellants. 6. Consequently, the first submission made on behalf of the appellants is rejected. 7. It was further submitted by learned counsel for the appellants that although recovery officer-Shri Suraj Singh PW9 at the relevant time was posted in the aforesaid police station as Sub-Inspector of Police but as he was not SHO he was not entitled to undertake the recovery proceedings during "Nakabandi" even without any prior information and when it was suspected that the aforesaid vehicle may be carrying some contraband, it was his duty to call the SHO to carry out further proceedings. It was submitted that it is well settled legal position that search and seizure proceedings of a narcotic drug undertaken by an incompetent officer vitiates the entire proceedings and accused is liable to be acquitted. 8. On the other hand, learned Public Prosecutor submitted that from the evidence available on record it is clear that SHO of Police Station Jhalrapatan left the police station for some other official work after handing over charge of the police station to Shri Suraj Singh and at the time of alleged seizure and recovery of the contraband he not having charge of the police station and was competent to undertake himself entire proceedings despite the fact that he was only Sub Inspector. 9. 9. It is well settled legal position that even an officer of the rank of Sub Inspector of Police not regularly posted as SHO of a police station but having charge thereof in absence of the regular SHO is competent under Section 42 of the Act to undertake proceedings including that of search and seizure of the contraband under the provisions of the Act and such proceedings do not stand vitiated merely by the reason that the recovery officer was not posted as regular SHO at the police station. In the present case, as per the evidence available on record it is clear that recovery officer Shri Suraj Singh PW9 was having charge of Jhalrapatan Police Station at the relevant time in absence of the regular SHO and he was discharging duty and functions of SHO and, therefore, it cannot be said that in the present case the search and recovery proceedings stood vitiated as the same were undertaken by an incompetent officers. Therefore, this submission of appellants is also rejected. 10. From the evidence available on record it cannot also be held that provisions of Section 57 of the Act were not properly followed. As per the evidence available on record and more particularly from Ex. P49 dated 15.4.2009 it is clear that detailed report as required under Section 57 of the Act was sent by the SHO Police Station Jhalrapatan to his higher officer-the Superintendent of Police. It is also clear that alongwith report copy of FIR and recovery memo were also sent. Learned counsel for the appellants failed to show any infirmity in the evidence indicating that the aforesaid provision was not properly followed. Otherwise also, it is well settled legal position that provisions of Section 57 of the Act are not mandatory. 11. It was also submitted by the learned counsel for the appellants that no evidence is available on record to show that the samples allegedly taken from the recovered substance were properly packed and sealed and were sent to FSL in the same condition and in absence thereof FSL report cannot be used to prove that the substance recovered from the possession of appellants was narcotic drug (Doda Chura). 12. This submission raised on behalf of the appellants has no substance in the light of oral and documentary evidence available on record. 12. This submission raised on behalf of the appellants has no substance in the light of oral and documentary evidence available on record. As per evidence available the packets were initially sealed by the recovery officer by his personal seal and the seal used by him was destroyed and all the packets were re-sealed with the seal kept at the police station and all the packets of the samples as well as of the remaining substance were immediately deposited in the "Malkhana" in the same condition. From the evidence available on record it is further revealed that all the six samples were handed over by the Incharge, Malkhana to the career witness in the same intact and sealed condition and the same were deposited for analysis in FSL. From forwarding letter dated 16.4.2009 Ex. P23 of Police Station Jhalrapatan, forwarding letter dated 16.4.2009 of Superintendent of Police Jhalawar Ex. P25, receipt dated 17.4.2009 Ex. P24 issued by FSL Rajasthan, Jaipur and FSL report dated 4.6.2010 it is also clear that alongwith packets of all six samples the impression of the seal used to seal the aforesaid packets was also sent and all packets were found intact bearing the same impression of seal. Again learned counsel for the appellants failed to show anything in the evidence to indicate that the packets of the recovered substance were not properly kept and any other substance was sent to FSL for analysis. Consequently, this ground raised on behalf of the appellants is also rejected. 13. It was further submitted by the learned counsel for the appellants that as per the procedure prescribed it was essential for the recovery officer to take control sample also from each of the packets in which the narcotic drug was allegedly found but in the present case it is an admitted fact that no control sample was taken and, therefore, the entire recovery and seizure becomes doubtful. 14. 14. Although, it is an admitted fact that no control or second samples were taken from the recovered substance but merely by that reason the entire prosecution case cannot be doubted and it cannot be held that the search and seizure proceeding undertaken by the recovery officer has become vitiated as the purpose to take control or second sample is that if for any reason the first sample is not available for analysis, the second sample kept in the "Malkhana" can be used for that purpose. In the present case, as samples were properly reached to the FSL and the same were analyzed, the purpose of taking samples having been achieved, no prejudice of any kind can be said to have been caused to the appellants. At the most it can be said that an irregularity was committed by the recovery officer. 15. No other ground of substance could be raised on behalf of the appellants to challenge the impugned judgment and order. 16. Consequently, Criminal Appeal No. 581/2011 filed on behalf of appellants-Ramswaroop and Chauth Mal being meritless is, hereby, dismissed. S.B. Criminal Appeal No. 415/2011 17. So far as this appeal is concerned, I fully agree with the learned counsel for these appellants that there is no iota of evidence to connect the appellants with the recovered narcotic drug. The appellants have been involved in the case on the basis of information provided by appellants-Shri Ramswaroop and Shri Chauth Mal during the course of investigation under Section 27 of the Evidence Act and search being made of their respective house in pursuance of the aforesaid information to the effect that the recovered narcotic drug was obtained by them from the present appellants. Merely on the basis of information given by co-accused during investigation under Section 27 of the Evidence Act present appellants cannot be connected with the recovered narcotic drug. So far as recovery from the houses of present appellants is concerned, in absence of any expert's report it cannot be said that the substance recovered from their houses is a narcotic drug having connection in any manner with the narcotic drug recovered from the possession of Shri Ramswaroop and Shri Chauth Mal. So far as recovery from the houses of present appellants is concerned, in absence of any expert's report it cannot be said that the substance recovered from their houses is a narcotic drug having connection in any manner with the narcotic drug recovered from the possession of Shri Ramswaroop and Shri Chauth Mal. Learned trial Court has wrongly convicted and sentenced the appellants Shri Bal Chand and Shri Mohan Lal without properly appreciating and evaluating the evidence available on record and the relevant legal position and, therefore, they are entitled to be acquitted. 18. Consequently, S.B. Criminal Appeal No. 415/2011 is allowed and the impugned judgment and order dated 26.3.2011 to the extent of appellants-Shri Bal Chand and Shri Mohan Lal is set aside and they are acquitted from the offence for which they were charged. Appellant-Shri Bal Chand is on bail and, therefore, the bail bonds filed by him are discharged. So far as appellant-Shri Mohan Lal is concerned, as per statement made by learned counsel for the appellant Shri Sameer Sharma he has died during pendency of this appeal. The appeal to his extent stands abated also and his bail bonds are discharged.