JUDGMENT : P.K. LOHRA, J. Appellants, convicted for offence of contravention in relation to opium poppy and opium, which is an offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’), and also the first appellant convicted for offence of allowing premises etc. to be used for commission of offence, which constitutes offence under Section 8/25 of the NDPS Act, have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C). The Special Judge, NDPS Cases, No. 1, Chittorgarh (for short, learned trial Court’) by judgment dated 1st of October, 2015, while holding guilty for aforesaid offences, handed down following sentences to the appellants: Appellant Puranmal: U/s. 8/18 NDPS Act 20 years' rigorous imprisonment and fine of Rs. 1 Lakh, in default of payment of fine to further undergo three years' simple imprisonment. U/s 8/25 NDPS Act 20 years' rigorous imprisonment and fine of Rs. 1 Lakh, in default of payment of fine to further undergo three years' simple imprisonment. Appellant Govind alias Govindram: U/s. 8/18 NDPS Act 20 years' rigorous imprisonment and fine of Rs. 1 Lakh, in default of payment of fine to further undergo three years' simple imprisonment. 2. The learned trial Court also ordered that all the sentences shall run concurrently. 3. The facts apposite, unfurling prosecution case, are that on 24th of August, 2005, at 8 AM, Circle Officer, Nimbaheda, District Chhitorgarh, Mr. Yogesh Goyal, received an information from Mukhbir about three persons of Kumhar caste, residents of village Chorliya Mewasa, coming on motorbike No.RJ-09-5M-4474 from their village with destination of Arnoda Batho, carrying opium poppy and opium to be delivered to opium traffickers/smugglers near Arnoda Batho. The CO., thereupon reduced the said information in writing and immediately endorsed a copy thereof to his immediate superior under subsection (2) of Section 42 of the NDPS Act. Thereafter, the police team with requisite investigation material proceeded from police station and on the way summoned Motbirs and after obtaining their consent to act as such, reached the spot to arrange ‘Nakabandi’. At the spot, when the police team was vigilantly waiting for arrival of the motorcycle, a motorcycle reached there with three persons seated on it; one driver and two pillion riders. At the spot, when the police team was vigilantly waiting for arrival of the motorcycle, a motorcycle reached there with three persons seated on it; one driver and two pillion riders. Upon seeing the police party, the driver of the motorcycle made an attempt to take a reverse turn at about 25 mtrs away from Nakabandi but his that attempt failed as due to the high speed of motorcycle it skidded on its right side. 4. Immediately, thereafter, the driver of motorcycle and the second pillion rider fled away from the scene but other pillion rider carrying one bag in his hand was apprehended by the police. On inquiry, he revealed his name Girdhari and further divulged the names of two others as Puranmal and Govind, i.e. both the appellants. The motorcycle was checked thereafter and its registration number matched the information of Mukhbir. Accused Girdhari was apprehended on the spot, served a notice under Section 50 of the NDPS Act and apprised his right in connection with his personal search and seizure in presence of Gazetted Officer or a Magistrate. Be that as it may, eventually, the search and seizure proceedings were undertaken by the concerned CO. The bag, which accused Girdhari was carrying, was searched and in the bag three small polythene bags showing weight 7 kg, 4 kg and 4 kg respectively were found. All the three polythene bags were opened and when smelt opium was found therein for which no licence was available with Girdhari. 5. Thereafter, on weighing all the three polythene bags collectively, its total weight came to 15 kg. Later on, from each of the bag, sample of 30 gms was collected and sealed on the spot and motorcycle was also seized. After arresting accused Girdhari, requisite memos were prepared and he was taken to police station where FIR No. 339/2005 was registered. Despite sincere efforts made by the police, accused-appellants were not apprehended, and therefore, police submitted charge-sheet against accused Girdhari while keeping investigation pending against both the appellants under Section 173(8) Cr.P.C. In due course of time, trial of accused Girdhari completed and by judgment dated 31st of January 2008 he was convicted for offence under Section 8/18 of the NDPS Act. The police made intensive search to apprehend both the appellants and finally upon their arrest after almost six years, separate charge-sheet was filed wherein appellant Puranmal was charged for offence under Section 8/18, 8/25 of the NDPS Act whereas other appellant Govind alias Govindram was charged for offence under Section 8/18 of the NDPS Act. The learned trial Court, later on, framed charges against both the appellants and upon their denial both were put on trial. 6. The prosecution, in order to bring home guilt against accused-appellants, examined 19 witnesses and exhibited 29 documents. After conclusion of the prosecution evidence, appellants were examined under Section 313 Cr.P.C. and they adduced evidence in the form of three defence witnesses; viz., DW1 Kailash, DW2 Satyanarain and DW3 Puran. Besides oral evidence on behalf of appellants, three documents were exhibited as Ex. D/1 to D/3 respectively. The learned trial Court, thereafter, heard final arguments and by the impugned judgment convicted both the appellants and awarded aforementioned sentences. 7. Mr. M.L. Bishnoi, learned counsel for the appellants, submits that appellants are falsely implicated in the matter inasmuch as there is no tangible evidence to connect them with the aforesaid offences except the statement of co-accused Girdhari. It is argued by learned counsel that prosecution witness PW15 Sudhir Kumar has simply identified the appellants on the basis of their names disclosed by co-accused Girdhari. Learned counsel further submits that no Test Identification Parade was conducted by the investigating officer nor Physiognomy of the appellants and the clothes worn by them at the time of alleged incident was disclosed by the witness is sufficient to show that his testimony is akin to hearsay evidence. While referring to the statement of said witness, learned counsel would contend that he has given a very tentative answer while identifying the appellants and has also candidly admitted his sole belief for identifying the accused-appellants is the disclosure of their names by co-accused Girdhari. Learned counsel, therefore, submits that such fractured testimony of this witness is not of any credence much less sufficient to prove involvement of the appellants in commission of offence. 8. Mr. Bishnoi, learned counsel for the appellants, while referring to the statements of prosecution witnesses, PW18 Babulal and PW5 Devkishan, contends that their testimony too is nothing but hearsay being full of inconsistencies. 8. Mr. Bishnoi, learned counsel for the appellants, while referring to the statements of prosecution witnesses, PW18 Babulal and PW5 Devkishan, contends that their testimony too is nothing but hearsay being full of inconsistencies. Learned counsel submits that prosecution witnesses PW2 Bherulal and PW7 Bhanunath have not supported the prosecution case against the appellants. It is also argued by learned counsel that witnesses PW 9, 6 & 7 turned hostile and thereby not supported the prosecution case. It is argued by learned counsel that findings and conclusions of the learned trial Court for indicting first appellant Puranmal for offence under Section 8/25 of the NDPS Act is per se infirm and not based on proper appreciation of evidence. Elaborating his submissions, Mr. Bishnoi has urged that the motorcycle which was allegedly used in commission of crime was transferred by appellant Puranmal to one Laxminarain through agreement to sale and no cogent evidence was available on record to show that at the time of commission of alleged offence it was in possession of appellant Puranmal. It is also contended that in this behalf the learned trial Court has not at all cared to examine testimonies of defence witnesses and even during investigation police has not made any endeavour to interrogate Laxminarain, who eventually passed away in the midst of investigation. 9. It is also argued by learned counsel that appellants were not previous convicts yet the learned trial Court has handed down maximum sentence of 20 years, which is per se harsh and not commensurating with the alleged offences. It is also argued by learned counsel that the samples of opium, which were kept in Malkhana, were sent to FSL as Article or not is not discernible inasmuch as the statements of Malkhana Incharge Kamlesh Kumar (PW9) and PW6 Nathuram are contradictory. Mr. Bishnoi has urged that PW6 Nathuram has even disputed the status of Kamlesh Kumar as Malkhana Incharge and on the contrary has deposed that Malkhana Incharge was Surendra Singh. He, therefore, submits that a lot of confusion about Incharge of the Malkhana, where samples were kept, has put a question-mark on the prosecution case as to whether the samples reached FSL in selfsame condition. 10. Per contra, learned Public Prosecutor, Mr. O.P. Rathi, has strenuously urged that learned trial Court has examined the evidence and other materials available on record threadbare in passing the impugned judgment. Mr. 10. Per contra, learned Public Prosecutor, Mr. O.P. Rathi, has strenuously urged that learned trial Court has examined the evidence and other materials available on record threadbare in passing the impugned judgment. Mr. Rathi would contend that though both the appellants were present when opium was seized from co-accused Girdhari, but they fled away from the scene and remained at large for almost six years, is sufficient to show their involvement in commission of serious offences. Learned Public Prosecutor contends that appellant No. 1 Puranmal was registered owner of the motorcycle and he being present at the spot, the learned trial Court has rightly concluded use of his vehicle in commission of offence knowingly and held him guilty of offence under Section 8/25 of the NDPS Act. 11. Learned Public Prosecutor has also argued that the contraband opium recovered in the matter was undeniably above commercial quantity, and therefore, the learned trial Court has rightly handed down maximum sentence for offence under Section 8/18 of the NDPS Act. Learned Public Prosecutor has vehemently argued that the contention of learned counsel for the appellants, that samples of contraband opium collected did not reach FSL in selfsame condition, is per se superfluous inasmuch statements of Malkhana Incharge Kamlesh Kumar in this behalf are clear and unequivocal. In totality, learned Public Prosecutor contends that the learned trial Court has rightly relied upon the prosecution evidence including the evidence of police officer and other officials, and therefore, the contention of appellants in this behalf, that these are interested witnesses, is wholly unfounded and bereft of any merit to render the impugned judgment vulnerable. 12. I have heard learned counsel for the appellants, learned Public Prosecutor at length, perused the impugned judgment and thoroughly scanned the entire record of the case. 13. Culpability of the appellants for the charged offences adjudged by learned trial Court is crucial in the instant appeal. Therefore, it would be just and appropriate to consider the evidence adduced by prosecution at the threshold. It is clearly evident from the prosecution case that an information received from a Mukhbir prompted CO. Nimbaheda to proceed for taking appropriate actions against three persons including the appellants after complying Section 42 of the NDPS Act. After reaching the spot for carrying out successful operation and to apprehend alleged offenders, police party arranged Nakabandi. It is clearly evident from the prosecution case that an information received from a Mukhbir prompted CO. Nimbaheda to proceed for taking appropriate actions against three persons including the appellants after complying Section 42 of the NDPS Act. After reaching the spot for carrying out successful operation and to apprehend alleged offenders, police party arranged Nakabandi. When a motorcycle, coming from village Chorliya Mewasa with three occupants including one driver and two pillion riders, was sought to be intercepted, its driver took a ‘U’ turn 30 mtrs away to dodge police. 14. The attempt made by the driver of motorcycle proved abortive and due to high speed [the motorcycle turned turtle/skidded. Thereafter, both the appellants fled away and only one incumbent (Girdhari) was apprehended on the spot. From accused Girdhari, police party recovered 15 kg opium and during interrogation he named both the appellants as his accomplice. In due course of time, investigation against Girdhari completed while keeping investigation pending against both the appellants under Section 173(8) Cr.P.C. Investigation against the appellants remained pending for almost six years as they could not be arrested. Be that as it may, trial against Girdhari completed and the learned trial Court upon finding him guilty for offence under Section 8/18 of the NDPS Act recorded his conviction. 15. A very vital question, which emerged for consideration before learned trial Court, was to ascertain presence of appellants on the spot as accomplice of Girdhari. In this regard, prosecution has examined three witnesses to establish their presence at the spot accompanying accused Girdhari. The important witness is PW15 Sudhir Kumar (Constable), who accompanied the investigation team led by C.O. Nimbahera. Witness PW15 Sudhir Kumar identified both the appellants on spot, when they were fleeing away, is clearly discernible from his following statement during examination-in-chief: ^^ftuesa ls eksVjlkbZfdy pkyd o ihNs cSBk O;fDr mBdj mŸkj dh rjQ [ksrks esa Qly [kMh ml rjQ Hkkxs ftudks eSusa igpku dj crk;k fd eksVjlkbfdy pkyd dk uke iwj.kdqekj fuoklh pjfy;k o mlds lkFk Hkkxk O;fDr xksfoUn dqekj fuoklh pjfy;k gSA^^ 16. Likewise, during his cross-examination, the witness remained unruffled to the extent of identification of both the appellants but for minor distraction in confirming his perception with the aid of Girdhari's disclosure about their names. Likewise, during his cross-examination, the witness remained unruffled to the extent of identification of both the appellants but for minor distraction in confirming his perception with the aid of Girdhari's disclosure about their names. The relevant excerpt, of the statements of PW15 during cross-examination, reads as under: ^^lwjt dh jks'kuh iM jgh Fkh fQj Hkh eSus igpku fy;k Fkk fd iwj.k o xksfoUn gSA eSus budks ns[kdj gh ns[kk Fkk igpkuk FkkA QnZ f'kuk[rxh cukdj bldh igpku esjs ls ugh djk;h FkhA esjs iksfLVax ds nks <kbZ lky igys bUgsa ns[kk Fkk tks fuEckgsM+k o pjfy;k esa ns[kk FkkA buls esjh O;fDrxr eqykdkr ugha gSA eSus budks nks lky igys ,d ckj ns[kk FkkA eSusa buds uke igys crk fn;s Fks fdUrq fxj/kkjh ds crkus ds ckn eq>s dUQeZ gqvk fd oks iwj.k o xksfoUn gks ldrs gSA^ 17. A cumulative reading of the statements of PW15, in my opinion, satisfy the test of normal prudency about identification of both the appellants. I am afraid, some minor discrepancies in his statements cannot discredit entire testimony or make it exculpatory vis-a-vis appellants. On overall analysis, it is rather difficult to visualize that testimony of this important witness is impeached by the defence. 18. Similarly, other witness PW18 Babulal has corroborated the version of PW15 Sudhir Kumar. Following statements of PW18 during his examination-in-chief are relevant: ^^eksVj lkbZfdy pkyd o lcls ihNs cSBk gqvk O;fDr mBdj mŸkj fn'kk esa [ksrks dh rjQ Hkkxs ftudks ge jkgh dkfu- lq/khu dqekj us igpkurs gq, crk;k fd Hkkxus okyk iwj.k dqEgkj gS gks eksVj lkbZfdy pyk jgk FkkA^^ 19. Statements of PW18 during cross-examination are also significant which read as under: ^^vt [kqn dgk fd lq/khj us igys gh muds uke crk fn;s FksA esjs bl izdj.k esa igys c;ku gks pqds gSA eSus iwoZ esa U;k;ky; esa fn-06-10-06 dks c;ku lgh fn;s FksA esjs iwoZ ds c;ku ihM&8 dk , ls ch Hkkx lgh fy[kk gSA ;g xyr gS fd lq/khu dqekj us Hkkxus okyksa dks ugh igpkuk gks vkSj uk gh uke crk;s gksA^^ 20. On this question of utmost significance, statements of I.O. PW19 Yogesh Kumar are in consonance and conformity with PW15 Sudhir Kumar and PW18 Babulal. That apart, the statements of PW5 are also very much relevant. PW5, during his examination-in-chief, has fully corroborated statements of PW15 Sudhir Kumar. On this question of utmost significance, statements of I.O. PW19 Yogesh Kumar are in consonance and conformity with PW15 Sudhir Kumar and PW18 Babulal. That apart, the statements of PW5 are also very much relevant. PW5, during his examination-in-chief, has fully corroborated statements of PW15 Sudhir Kumar. The requisite excerpt from his statements reads as under: ^^ogWk ij ukdscanh ds djhc 20&25 feuV ckn ,d eksVj lkbZfdy xkao vjuksnk ls vk jgh FkhA ctkt eksVj lkbZfdy dkys jax dh gksdj vkj ts 09-6, ,e 4474 FkhA ;g gels djhc 25&30 QhV nwj iqfyl dks ns[kdj okil ujfy;k dh vkSj ?kqekbZ rks eksVj lkbfdy nf{k.k dh vksj fxj xbZA ml ij cSBs rhu O;fDr es ls nks O;fDRk mŸkj dh vkSj Hkkx x;s ftudks ns[kdj dkfu- lq/khj dqekj us igpku dj dgk fd eksVj lkbZfdy pykus okys iqj.key o mlds lkFk Hkkxk dk uke xksfoan gS ftl ij Jheku Mh ckbZ ,l ih lkgc us eq>s o y{ehyky o lhrkjke dks mudk ihNk dj idM+ dj ykus dk vkns'k fn;kA^^ 21. Therefore, appellants' contention that they were not seen and identified at the spot but were simply implicated on the basis of statements of co-accused Girdhari is bereft of any merit. True it is that Girdhari has disclosed their names but then crucial evidence of I.O. PW19 Yogesh Kumar, PW15 Sudhir Kumar, PW18 Babulal and PW5 Devkishan is clear and unequivocal, which has been rightly relied upon by the learned trial Court. Moreover, both the appellants remained at large for almost six years from the date of incident is not an insignificant circumstance, if properly scrutinized on the basis of above discussed prosecution evidence in order to record satisfaction about presence of appellants at the time and place where motorcycle is intercepted by police. 22. At this stage, second question pertaining to status of appellant Puranmal, as registered owner of the conveyance motorcycle carrying contraband, merits examination. The requisite evidence of PW16 Mukesh Kumar in this behalf is clear and explicit. Relevant part of his statements in this behalf is as under: ^^eksVjlkbZfdy vkj ts 09 5 ,e 4474 iwj.key firk cxnhjke iztkir fuoklh pjfy;k rglhy fuEckgsMk ds uke ij jftLVMZ gksdj batu uacj 82761 FksA rgjhj izn'kZih 16 gS ftl ij lh ls Mh esjh fjiksVZ gksdj bZ ls ,Q esjs gLrk{kj gSA^^ 23. Relevant part of his statements in this behalf is as under: ^^eksVjlkbZfdy vkj ts 09 5 ,e 4474 iwj.key firk cxnhjke iztkir fuoklh pjfy;k rglhy fuEckgsMk ds uke ij jftLVMZ gksdj batu uacj 82761 FksA rgjhj izn'kZih 16 gS ftl ij lh ls Mh esjh fjiksVZ gksdj bZ ls ,Q esjs gLrk{kj gSA^^ 23. The so-called agreement to sale for Motorcycle No.RJ-09-5M-4474, between appellant Puranmal and Laxminarain, was produced before the learned trial Court on 21st of September 2015, i.e., after a lapse of more than 11 years from the date of its alleged execution and posterior to death of Laxminarain, is per se sufficient to disbelieve the same. Therefore, the learned trial Court has rightly discarded the said agreement Ex. D/3 by recording a finding that same appears to be spurious and prepared ante-dated. Although exact date of death of Laxminarain has not come on record but there is defence evidence to show that same was never produced before any authority much less registering authority during the lifetime of Laxminarain and the appearance of stamp paper, as recently purchased, is yet another circumstance to discredit the same. An affirmative evidence showing presence of appellant No. 1, at the place of Nakabandi, intercepting motorcycle by police, accompanying other accused persons, being registered owner of the vehicle and recovery of opium (contraband) from co-accused Girdhari, sufficiently proves knowingly use of conveyance for commission of offence by him. It is not in dispute that word “knowingly” can be proved either by positive evidence or circumstantial evidence. This sort of situation has persuaded the Court for recording affirmation about finding of the learned trial Court in this regard. 24. The third question, which has emerged for consideration, as vociferously canvassed by the learned counsel, relates to compliance of Section 55 of the NDPS Act and delivery of the samples to FSL in self-same condition. The object of Section 55 is to keep sanctity of case property. There remains no quarrel that intentional and deliberate non-compliance of Section 55 of the NDPS Act may cast a cloud of doubt on the prosecution case and certainly cause prejudice to the accused. Therefore, in order to examine this question, it would be just and proper to examine and re-appreciate the evidence available on record. The most plausible evidence in this behalf is that of I.O. PW19 Yogesh Goyal. Therefore, in order to examine this question, it would be just and proper to examine and re-appreciate the evidence available on record. The most plausible evidence in this behalf is that of I.O. PW19 Yogesh Goyal. Relevant part of his statement in this behalf reads as under: ^^vkfVZdy 1] 2 ok 3 uewuk lsEiy ftl ij , ls ch esjs gLrk{kj vkfVZdy 4] 5 o 6 dUVªksy lsEiy gS rFkk vkfVZdy 7] 8 o 9 tIr vQhe gSA vkfVZDy u-10 ekdZ Mh iSfdV gS ftles vQhe dh rhuks IykfLVd dh FkSfy;ka ftu nks dV~Vks esa Fkh ftl ij , ls ch esjs gLrk{kj gS] bZ ls ,Q eqyfte fxj/kkjh ds gLrk{kj rFkk 'ks"k ekSrchjksa ds gLrk{kj rFkk ,Dl LFkku ij uewuk lhy vafdr gSA vkfVZdy 1 ls yxk;r 6 dh fpVks ij , ls ch esjs gLrk{kj gS 'ks"k gLrk{kj eksrchjke ds gSA vkfVZdy 7] 8 o 9 ij lhYMfpV gS ij ckWDl ls ckgj fudkyus dh fLFkfr esa ugh gSA^^ 25. Furthermore, his other statements are also throwing light on the procedure adopted in compliance of Section 55 of the NDPS Act and exhibiting FSL Report. The requisite excerpt from the statement of PW19 reads as under: ^^ipkadk;eh izn'kZ ih&14 gS ftl ij th ls ,p o bZ ls ,Q esjs gLrk{kj gSA pkd ,QvkbZvkj izn'kZ ih&15 gS ftl ij lh ls Mh esjs gLrk{kj gSA /kkjk 57 ,e Mh ih ,l ,DV dh lwpuk izn'kZ ih&18 gS ftl ij , ls ch ,lih lkgc ds rFkk lh ls Mh ,M+h'kuy ,lih lkgc ds gLrk{kj rFkk , ls ch esjs gLrk{kj gSA bl izdj.k dh ,Q,l,y fjiksVZ izn'kZ ih&19 gSA uewuk lhy dh QnZ izn'kZ ih&19 gS ftl ij ,DV dh QnZ izn'kZ ih&5 gS ftl bZ ls ,Q esjs gLrk{kj gSA /kkjk 55 ,uMhih,l ,DV dh QnZ izn'kZ ih&5 gS ftl ij bZ ls ,Q esjs gLrk{kj gS rFkk th ls ,p eksrchj jbZ'k eksgEen rFkk , ls ch lq/khj dkfuLVscy rFkk lh ls Mh eky[kkuk bUpktZ deys'k ds gLrk{kj gSA ekSds ij tks QnZ tCrh cukbZ tks izn'kZ ih&6 gS ftl ij ds ls ,y esjs gLrk{kj gS rFkk ,Dl LFkku ij uewuk lhy vafdr o lh ls Mh vfHk;qDr fxj/kkjh ds gLrk{kj rFkk 'ks"k gLrk{kj eksrchjku ds o tkIrk ds gSA^^ 26. The other witness, Malkhana Incharge, PW9 Kamlesh Kumar, in his statements has explained with clarity and precision the compliance of Section 55 of the NDPS Act and delivery of samples to FSL in self-same condition. The statement of the witness in this behalf reads as under: ^^ml fnu fMIVh lkgc us nl vkfVZdy o ,d eksVjlkbZfdy eky[kkus esa tek djokus ds fy, nh Fkh ftlesa ls nks lSEiy ekdZ ,1 o ,2 diMs dh FkSyh esa lhy phV FksA ch1] ch2] lh1 o lh2 lhy phV FksA ftldk eSusa eky[kkuk jftLVj esa bUnzkt fd;k FkkA eky[kkuk jftLVj izn'kZ ih 16 gS tks izn'kZ ih 16, bldh i=koyh ij izfr gSA eky[kkuk jftLVj esa bUnzkt esjk dyeh gSA fnuakd 5-9-05 dks dkLVscy uFkqyky dks rhu lSEiy ekdZ ,1 ch1 lh1 lhy gkyr esa ,Q,l,y t;iqj esa tek djokus ds fy;s laHkyk;s Fks ftldk i`"Bkadu izn'kZ ih 16 ij , ls ch gksdj lh ls Mh esjs gLrk{kj gSA bZ ls ,Q uFkq dkaLVscy ds gLrk{kj gSA uFkqyky us mDr lSEiy fnukad 6-09-05 dks tek djokdj jlhn izn'kZih2 8-9-05 dks ykdj is'k dh ftldk bUnzkt jftLVj es th ls ,p Hkkx esa fd;k gS ,Dl LFkku ij czkl lhy dh eksgj gSA eky esjs ikl tc jgk rc rd lhy phV gkyr es jgk FkkA /kkjk 55 dh QnZ izn'kZih5 gS ftlds vuqlkj gh eSus eky[kkus dks tek fd;k Fkk ftl ij lh ls Mh esjs gLrk{kj gSA^^ 27. The other witness Nathuram (PW6), on whose testimony appellants have placed reliance to discredit evidence of PW9 Kamlesh Kumar, in my opinion, is an ambitious plea and bereft of any substance. As a matter of fact, the complaint about non compliance of Section 55 of the NDPS Act and expression of doubt about status of PW9 as Malkhana Incharge is per se based on complete misreading of his statements. The relevant excerpts from his statement are as under: ^^eSus uewus flyfpV voLFkk esa izkIr fd;s o flyflV voLFkk esa gh tek djk;s FksA^^ 28. His statements during cross-examination are as under: ^^eky[kkuk bapktZ deys'k dqekj ckn esa fuyfEcr gqvk gks rks irk ughaA ;g lu 2006 rd eky[kkuk bapktZ jgk FkkA^^ 29. Thus, there is apparently no reason to believe that investigating agency has not made compliance of Section 55 of the NDPS Act much less intentional and deliberate non-compliance. His statements during cross-examination are as under: ^^eky[kkuk bapktZ deys'k dqekj ckn esa fuyfEcr gqvk gks rks irk ughaA ;g lu 2006 rd eky[kkuk bapktZ jgk FkkA^^ 29. Thus, there is apparently no reason to believe that investigating agency has not made compliance of Section 55 of the NDPS Act much less intentional and deliberate non-compliance. It is also noteworthy that the samples were delivered to FSL in self-same condition and report of FSL Ex. P/19, showing positive tests for the presence of chief constituent of coagulated juice of opium poppy having 3.32% morphine, 3.32% morphine and 3.8% morphine in all the three samples, contained in packets marked A-1, B-1 & C-1 respectively. In this view of the matter, finding of the learned trial Court on this question is based on sound reasonings, and therefore, cannot be faulted. 30. The inferences aforesaid drawn by the Court has, thus, paved the way to affirm finding of guilt recorded by learned trial Court for the charged offences against appellants. At this juncture, it is also very much desirable to note that finding of guilt recorded by the learned trial Court against other coaccused Girdhari has been upheld by this Court while deciding S.B. Criminal Appeal No. 107/2008 on 29th of September 2015. 31. The operative part of the judgment reads as under: ^^ifj.kker% vihykFkhZ&vfHkqDr fxj/kkjh dh vksj ls izLrqr ;g vihy nks"kfl)h dh gn rd [kkfjt dh tkrh gSA vne vnk;xh vFkZn.M ds :i esa fn, x, dkjkokl ds Øe esa ;g vihy vkaf'kd :i ls Lohdkj dj] fopkj.k U;k;ky; }kjk vne vnk;xh vFkZn.M+ ds Øe esa fn;s x;s vfrfjDr :i ls ,d o"kZ ds dBksj dkjkokl dks rhu ekg ds dBksj dkjkokl esa ifjofrZr fd;k tkrk gSA fu.kZ; dh izfr ds lkFk vfHkys[k vfoyEc ykSVk;k tkosA^^ 32. While it is true that charge against accused is required to be proved beyond all reasonable doubts, but then a reasonable doubt does not mean some light, airy or insubstantial doubt that may flit through the minds of any of us about almost anything at same time or other, nor it means a doubt begotten by sympathy out of reluctance to convict. The doubt, which can be construed as “reasonable doubt”, means a real doubt or a doubt founded upon reasons. The doubt, which can be construed as “reasonable doubt”, means a real doubt or a doubt founded upon reasons. I am afraid, the evidence and materials available on record, if properly marshaled, by no stretch of imagination, a real doubt or a doubt founded upon reasons is forthcoming so as to disturb and upset the finding of guilt recorded by the learned trial Court. 33. The affirmation of finding of guilt against the appellants for the serious offences under the NDPS Act cannot be underplayed as with the advent of time drug trafficking is accentuating alarmingly. In the present era, it has become a global phenomenon and the proliferating and devastating menace for the Society, which is a cause of grave concern. However, in the backdrop of peculiar facts and circumstances of the case, I do feel that the sentences handed down to the appellants are per se harsh and oppressive which require re-look and reconsideration by this Court. While awarding sentence, Court is expected to act conscientiously and discretion in this regard is to be exercised judiciously and not capriciously. Stress upon the rehabilitatory aspect of penology is the need of the hour because crime is a pathological aberration; the criminal can ordinarily be redeemed and the State has to rehabitate rather than avenge. 34. Handing down sentence to an accused upon his indictment for the charged offence is mandated by law but then law does not envisage that in every case accused should be awarded maximum sentence. While sentencing an offender, Court is required to see as to whether sentence is commensurating to the gravamen of offence he has committed besides other relevant factors. In the instant case, undeniably, both the appellants are not previous convicts and their previous criminal antecedents are also not available. That apart, recovery of opium contraband is also not from the conscious possession of appellants but from other accused Girdhari, who has been held guilty by the learned trial Court for offence under Section 8/18 of the NDPS Act in a separate trial and handed down maximum sentence of 10 years' rigorous imprisonment with fine of Rs. 1 Lakh and in default of payment of fine to undergo sentence for a further period of one year's rigorous imprisonment. The sentence in default of payment of fine was subsequently reduced by this Court while deciding appeal. 1 Lakh and in default of payment of fine to undergo sentence for a further period of one year's rigorous imprisonment. The sentence in default of payment of fine was subsequently reduced by this Court while deciding appeal. Therefore, for doing substantial justice in the matter, judicial conscience has persuaded me to alter and modify the substantive sentences awarded to the appellants as well as fine and the sentence in default of payment of fine. Moreover, in the wake of the fact that substantive sentence handed down to co-accused Govind is affirmed by this Court while deciding his appeal on 29th of September 2015, reduction in substantive sentences awarded to the appellants and fine imposed against them would reinforce parity in the matter of punishment. 35. The upshot of above discussion is that the instant appeal is allowed in part and while maintaining conviction of the first appellant Puranmal for offence under Section 8/18 and 8/25, and of second appellant Govind @ Govindram for offence under Section 8/18 of the NDPS Act, the sentences handed down to them are altered and modified as under: First-Appellant Puranmal: U/s. 8/18 NDPS Act 10 years' rigorous imprisonment and fine of Rs. 1 Lakh, in default of payment of fine to further undergo six months rigorous imprisonment. U/s 8/25 NDPS Act 10 years' rigorous imprisonment and fine of Rs. 1 Lakh, in default of payment of fine to further undergo six months rigorous imprisonment. Second-Appellant Govind alias Govindram: U/s. 8/18 NDPS Act 10 years' rigorous imprisonment and fine of Rs. 1 Lakh, in default of payment of fine to further undergo six months rigorous imprisonment. 36. It is also clarified that all the aforesaid modified sentences shall run concurrently and the appellants would be entitled for benefit of Section 428 Cr.P.C.