JUDGMENT : The instant Criminal Appeal has been preferred against the judgment of conviction dated 24.05.2004 and order of sentence dated 25.05.2004, passed by learned Sessions Judge, Dhanbad, in Special Case No. 14 of 2001, whereby the sole appellant has been convicted for the offence committed and punishable under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985 and has been awarded rigorous imprisonment for four years with a fine of Rs. 10,000/- and in default of payment of fine amount, to undergo simple imprisonment for three months. 2. The brief facts of the case is that on 08.07.2001, Sarvjit Narayan Jha, Sub-Inspector of Excise was returning from Baliapur. He got information from an unknown person that Sanjay Kumar Kushwaha (accused) is selling Ganja in his gumti situated in the east of Kalpana Talkies Cinema. On such information, the informant reached to the place of occurrence and found that shopkeeper Sanjay Kumar Kushwaha (appellant) was selling Ganja in his shop to a customer namely Satyendra Singh. The informant conducted a raid in the shop and seized some plastic packets containing Ganja from the shop of the appellant. One packet contained 45 grams of Ganja, ten packets of three grams of Ganja, ten packets of five grams of Ganja and eight packets of two grams of Ganja, total 141 grams of Ganja. The seizure was prepared in the presence of Birendra Singh (P.W. 4) and Raju Singh (P.W. 1), independent witnesses. Out of 141 grams of Ganja, the informant prepared one packet of 10 grams of Ganja and two packet of five gram of Ganja, total 20 grams of Ganja, for sending it to the Forensic Science Laboratory and the rest of 121 grams of Ganja, was sealed in a container upon which the appellant has not put his seal as he was not having the same but has put his signature. 3. On the basis of the statement of the informant, Special Case No. 14 of 2001 was registered. The accused was disclosed about his rights to get his statement recorded by the Magistrate but the accused/appellant has denied to do so. The defence of the accused is complete denial of recovery of Ganja from the gumti belonging to the accused. 4. On the basis of the statement of the informant, Special Case No. 14 of 2001 was registered. The accused was disclosed about his rights to get his statement recorded by the Magistrate but the accused/appellant has denied to do so. The defence of the accused is complete denial of recovery of Ganja from the gumti belonging to the accused. 4. The charge has been framed against the appellant on 04.03.2002, under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985 to which the appellant has pleaded his innocence and thus, he was put under trial. 5. The prosecution, to prove its case, has examined altogether five witnesses and also exhibited a number of documents up to Exhibit-4, in support of its case. Raju Singh, seizure witness, has been examined as P.W. 1, Sarvjit Narayan Jha, informant of the case, has been examined as P.W. 2, Om Prakash Bajpayee, Assistant Sub-Inspector in the department of Excise, has been examined as P.W. 3, Birendra Singh, another seizure witness, has been examined as P.W. 4 and Surendra Upadhyaya, Excise Constable, has been examined as P.W. 5. 6. Signature of Raju Singh on the seizure list, has been proved and marked as Exhibit-1, signature of Birendra Singh on seizure list has been proved and marked as Exhibit-1/1, seizue list has been proved and marked as Exhibit-2, prosecution report has been proved and marked as Exhibit-3 and the Forensic Science Laboratory report has been proved and marked as Exhibit-4. Seized Ganja was also produced in the Court, which has been proved and marked as Material Exhibit-1. 7. After closure of the prosecution evidence, the statement of the accused/appellant has been recorded under Section 313 Cr.P.C. on 24.03.2004, where the appellant has denied about any evidence against him, rather he has been implicated in a conspiracy but no defence evidence has been brought on record on behalf of the appellant. 8. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence, whereby the learned Trial Court has convicted the appellant under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985 and awarded rigorous imprisonment for four years with a fine of Rs. 10,000/-, which was deposited by the appellant before the Nazarat Civil Court, Dhanbad vide Nazarat Receipt No. 154680 dated 28.06.2004. 9. 10,000/-, which was deposited by the appellant before the Nazarat Civil Court, Dhanbad vide Nazarat Receipt No. 154680 dated 28.06.2004. 9. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, passed by the learned Trial Court, the appellant has preferred the present criminal appeal before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 10. Heard, learned counsel for the appellant, Mr. Saibal Kumar Laik, Advocate. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that the Narcotic Drugs and Psychotropic Substance Act, 1985 had been enacted with a stringent provisions to deal with people who indulge in such practices. Learned counsel for the appellant has further submitted that there is a provision under Section 42 of the NDPS Act, which has to be construed strictly. Learned counsel for the appellant has further submitted that in the present case, there is non-compliance of section 42 of the NDPS Act, which has independent existence from Section 57 of the NDPS Act. Section 42 (1) of the NDPS Act, deals with the provisions that soon after the information is received by an Officer, he must write it down and as per provision under Section 42 (2) of the NDPS Act, the same be communicated within 72 hours to immediate superior official by sending a copy thereof. Under Section 42 (2) of the NDPS Act, the information must be communicated to the Superior Officer within seventy-two hours. Learned counsel for the appellant has submitted that such information was not taken down in writing nor communicated within 72 hours before the superior authority and as such, there is non-compliance of the provisions of Section 42 of the NDPS Act. The learned counsel for the appellant has relied upon judgment as reported in (2013) 2 SCC 502 in the case of Kishan Chand Versus State of Haryana, where the Hon’ble Supreme Court has held that: “compliance of Section 42 of the NDPS Act i.e. writing down and conveying information to immediate superior officer is mandatory in nature. There is a difference between compliance of Section 57 which deals with seizure and Section 42 which deals with prior to conducting the raid, are neither interlinked nor inter dependent”. There is a difference between compliance of Section 57 which deals with seizure and Section 42 which deals with prior to conducting the raid, are neither interlinked nor inter dependent”. Learned counsel for the appellant has further drawn the attention of this court towards paragraph-17 and 24 where the Hon’ble Supreme Court has held as follows: “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. In that judgment, the Court in the very opening paragraph noticed that in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, a three Judge Bench of the Court had held that compliance with Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate superior officer may cause prejudice to the accused. However, in Sajan Abraham, 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 with 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 case, SCC pp. 554-55, para 35) “35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham 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.” 24. Reliance placed by the learned counsel appearing for the State on Sajan Abraham is entirely misplaced, firstly in view of the Constitution Bench judgment of this Court in Karnail Singh. Secondly, in that case the Court was also dealing with the application of the provisions of Section 57 of the Act which are worded differently and have different requirements, as opposed to Sections 42 and 50 of the Act. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requirement to be adhered to “pre-search”. The question of sending it immediately thereafter does not arise in the present case, as it is an admitted position that there is total non-compliance with Section 42 of the Act. The sending of report as required under Section 57 of the Act on 20-7-2000 will be no compliance, factually and/or in the eye of the law to the provisions of Section 42 of the Act. These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Sections 42, 50 and 57 of the Act. They are neither interlinked nor interdependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases.” Thus, learned counsel for the appellant has submitted that in view of non-compliance of the same, the appellant cannot be convicted in a stringent proceeding without strict proof thereof. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases.” Thus, learned counsel for the appellant has submitted that in view of non-compliance of the same, the appellant cannot be convicted in a stringent proceeding without strict proof thereof. Learned counsel for the appellant has further submitted that Raju Singh (P.W. 1) is one of the seizure witness, who has stated during cross-examination, that as per the direction of Pandey Sahab, he has put his signature and another seizure witness P.W. 4 Birendra Singh, has been declared hostile by the prosecution. Learned counsel for the appellant has put reliance upon the judgment as reported in (2018) 2 SCC 305 in case of Gorakh Nath Prasad v. State of Bihar, where the Hon’ble Supreme Court has acquitted the appellant as the seizure witness has turned hostile. In the present case, one of the seizure witness who has been examined as P.W. 1 Raju Singh has not supported the prosecution case and another seizure witness Birendra Singh, who has been examined as P.W. 4 has been declared hostile by the prosecution. Learned counsel for the appellant has further submitted that the appellant has been tried without proving by the prosecution that the article is being sold to Satyendra Singh, who has not been examined in this case nor has been arrayed as an accused and as such, the learned counsel for the appellant has submitted, that in view of non-compliance of provisions under Section 42 of the NDPS Act, the appellant deserves to be acquitted by extending benefit of doubt. Learned counsel for the appellant has further submitted, that the appellant has been awarded a sentence of rigorous imprisonment for four years and a fine of Rs. 10,000/- for allegedly possessing 141 gram of Ganja which is smaller quantity as per the schedule of the Act and as such, the punishment which has been awarded to the appellant is excessive. Learned counsel for the appellant has placed the evidence of P.W. 2 Sarvjit Narayan Jha (informant), who has proved the seizure list as Exhibit-2 and the production of the seized material as Material Exhibit-1 and the prosecution report as Exhibit-3. Learned counsel for the appellant has placed the evidence of P.W. 2 Sarvjit Narayan Jha (informant), who has proved the seizure list as Exhibit-2 and the production of the seized material as Material Exhibit-1 and the prosecution report as Exhibit-3. Learned counsel for the appellant has further submitted that from perusal of the evidence of the informant, it is not clear that, when he has complied the requirement as envisaged under Section 42 of the NDPS Act. Learned counsel for the appellant has further submitted that from the perusal of the evidence of P.W. 2, there is complete non-compliance of section 42 of the NDPS Act and evidence of P.W. 2 shows that whatever the communication was made to the superior, it was a compliance as envisaged under Section 57 of the NDPS Act. Learned counsel for the appellant has placed reliance upon the judgment as reported in 2013 (2) SCC 502 in case of Kishan Chand versus State of Haryana, referring paragraph-17 and 24 as stated above. Under such background, learned counsel for the appellant has prayed that the appellant deserves to be acquitted. 11. Heard, learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is well founded and based on the material available on record and the learned Trial Court has rightly convicted the appellant under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985. Learned counsel for the State has further submitted that provisions of Section 42 and 57 of the NDPS Act was complied by the informant (P.W. 2) Sarvjit Narayan Jha, as it appears from the evidence and the material exhibits produced before the learned Trial Court, which has been marked as Material Exhibit-1 and the Forensic Science Laboratory report, showing the contents seized by the Excise Officer to be Ganja, has been brought on record which has been proved and marked as Exhibit-4. Learned counsel for the State has further submitted that in the case of Hamidhbai Azambhai Malik vs. State of Gujarat as reported in AIR 2009 SC 1378 , “if the officer is on regular patrolling or in investigation of some other offence, it is not necessary to follow in all cases the conditions incorporated under Section 42 of the NDPS Act”. Learned counsel for the State has further submitted that from evidence of Sarvjit Narayan Jha (P.W. 2) there is compliance of Section 42 and 57 of the Act. Learned counsel for the State has also submitted that if a person has been found in possession of 141 gram of Ganja which is being sold to some customer, the learned Trial Court has rightly convicted the appellant for offence committed under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985 by awarding a sentence of rigorous imprisonment for four years and a fine of Rs.10,000/- and as such, the impugned judgment and order of sentence is based on material available on record and the learned Trial Court has rightly passed the impugned judgment of conviction and order of sentence. 12. Heard, learned counsel for the appellant, Mr. Saibal Kumar Laik, Advocate and learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor and from perusal of the record and the evidence of five witnesses, Material Exhibit, F.S.L. report and the statement of the appellant recorded under Section 313 Cr.P.C. This Court has scrutinized the evidence of P.W. 1 and P.W. 4, namely Raju Singh and Birendra Singh, they are the seizure witnesses, who have not supported the case of the prosecution. In view of the judgment as reported in (2018) 2 SCC 305 in case of Gorakh Nath Prasad v. State of Bihar, where the Hon’ble Supreme Court has acquitted the accused persons from alleged recovery of contraband from the house of the accused. The prosecution has to first establish prima facie case of genuine recovery of the contraband from the possession of the accused before, burden of proof is shifted onto accused and second that in absence of production of the seized item in court as an exhibit, only on the basis of F.S.L. report, no confirmation, either of seizure or that of what was seized was Ganja, the benefit of doubt has been given to the accused. In the present case, the seized Ganja was produced in the Court as Material Exhibit-1 and F.S.L. Report with respect to the seized item as Ganja has been proved and marked as Exhibit-4 and the seizure list has been proved legally before the Court, as Exhibit-2, but the seizure witnesses have not supported the prosecution case. In the present case, the seized Ganja was produced in the Court as Material Exhibit-1 and F.S.L. Report with respect to the seized item as Ganja has been proved and marked as Exhibit-4 and the seizure list has been proved legally before the Court, as Exhibit-2, but the seizure witnesses have not supported the prosecution case. P.W. 1 Raju Singh has categorically stated, that he put his signature on the direction of one Pandey Sahab, who is a person, not examined in the case either on behalf of the prosecution or on behalf of the defence and P.W. 4 Birendra Singh, another seizure witness, who has been declared hostile by the prosecution. Under such circumstances, the seizure of material as Ganja has been legally proved by the prosecution in discharge of their onus. The material which was sent for examination before Forensic Science Laboratory is also connected with the material seized by informant, as the signature of the appellant was there on the said seizure list has also been proved. This Court has also found from the evidence of P.W. 2 Sarvjit Narayan Jha, that his compliance with respect to provisions of Section 42 and Section 57 of the NDPS Act. It appears from the evidence of Sarbjit Narayan Jha, informant of the case, who has categorically stated that prosecution report with detailed description as contained in letter no. 9 of 2001 dated 09.07.2001 issued by Excise Inspector, Dhanbad has been produced before the Assistant Commissioner, Excise. This Court has taken judicial notice of the judgment as reported in (2013) 2 SCC 502 in the case of Kishan Chand Versus State of Haryana particularly in paragraph-17 and 24 where, the Hon’ble Supreme Court has clarified, that Section 42 and Section 57 of the NDPS Act are not interlinked or interdependent. This Court has taken judicial notice of the judgment as reported in (2013) 2 SCC 502 in the case of Kishan Chand Versus State of Haryana particularly in paragraph-17 and 24 where, the Hon’ble Supreme Court has clarified, that Section 42 and Section 57 of the NDPS Act are not interlinked or interdependent. The Hon’ble Supreme Court has discussed a situation, where : “the police officer was not in the police station, but while he was on 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 goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him and in such a situation, he could take action as per clause (a) to (d) of Section 42 (1) and therefore, as soon as it is practical, record the information in writing and forthwith inform the same to the superior official”. But the Hon’ble Supreme Court in the same judgement has categorically stated in clause (d), that : “while total non-compliance with requirements of sub-section (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 official does not record the information at all, and does not inform the official superior at all, then also it will be clear violation of Section 42 of the Act.” However, learned counsel for the State is right in submitting, that prosecution report has been proved and marked as Exhibit-3 and the seizure list has been proved and marked as Exhibit-2 and as such, there is compliance of Section 42 of the NDPS Act, may be with some delay, but that is considered to be a compliance of provisions of Section 42 of the NDPS Act, as the Officer concerned was on patrol duty, when he got such information and as such, there is non-compliance of the Section 42 (1) of the NDPS Act but certainly there is a compliance of Section 42 (2) of the Act and as per the judgment of the Hon’ble Supreme Court in the case of (2013) 2 SCC 502 in case of Kishan Chand versus State of Haryana, there is a compliance of the requirement of law. This Court has found that seizure witness has not supported the case of the prosecution coupled with the fact, that the appellant was only found in possession of 141 gram of Ganja but there is no evidence on record to suggest that the appellant was selling it to somebody else (purchaser Satyendra Kumar Singh) as said Satyendra Kumar Singh, alleged purchaser has not been made accused in this case. Considering the above facts and circumstances of the case as discussed above, this Court is of the opinion that learned Trial Court has rightly convicted the appellant under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985 for possessing Ganja, but so far sentence awarded to the appellant is concerned, this Court is of the view that instead of sentencing the appellant for rigorous imprisonment for four years, the appellant may be sentenced to period already undergone, which is approximately 45 days as the appellant was found with 141 gram of Ganja, whereas the permissible limit for small quantity is 1000 gram and the maximum punishment that can be awarded to an accused under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985 is up to rigorous imprisonment upto five years at the relevant point of time which was subsequently amended by reducing it to six months and later on in the year 2014 by enhancing it up to one year. Considering the above facts, this Court is of the opinion that since the appellant was having only 141 gram of Ganja, his sentence is being reduced to the period already undergone with fine as awarded by the learned Trial Court. 14. In the result, the impugned judgment of conviction dated 24.05.2004 and order of sentence dated 25.05.2004, passed by learned Sessions Judge, Dhanbad, in Special Case No. 14 of 2001, is hereby upheld and affirmed with modification in sentence. 15. The appellant, who is on bail, he is discharged from the liability of his bail bond, as he has already served out the sentence. 16. Accordingly, the present criminal appeal is dismissed with modification in sentence. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.