JUDGMENT : Vivek Singh Thakur J. This appeal has been preferred by the appellant/convict against the judgment dated 20.10.2016 passed by learned Special Judge-IV, Kangra at Dharamshala in Session Trial No. 16-D/2016, titled as State of H.P. Vs. Ramesh Kumar, whereby appellant/convict has been convicted and sentenced to undergo rigorous imprisonment for five years along with fine of Rs.10,000/- for commission of offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as the 'Act' for short), in case FIR No. 144/2013, dated 18.6.2013, registered in Police Station, Kangra, under Section 20 of the Act. 2. Prosecution case in brief is that on 18.6.2013, PW-12 ASI Gian Chand was on patrol duty along with PW-8 H.C. Sanjeev Walia, H.C. Rajinder Kumar (not examined), H.C. Kuldeep Kumar (not examined), constable Kuljeet Singh (not examined), PW-9 constable Ashish Kumar and PW-5 constable Pawan Kumar, near office of SDM, Kangra and at that time they had received a secret information that the appellant/convict had been indulging in selling charas in his manyari shop at VPO Bhadiyara Thehr and according to Investigating Officer, this information was definite and reliable and there was no sufficient time to obtain search warrants, as there was apprehension of distruction of contraband, therefore, information under Section 43(2) of the Act was prepared and sent to PW-11 Dy. S.P. Kangra through PW-5 Constable Pawan Kumar and Dy. S.P. Hitesh Lakhanpal (Head Quarter)(SO) was informed telephonically. Thereafter PW-12 Gian Chand associated two independent witnesses, PW-1 Manohar Lal and PW-2 Rajinder Singh, respectively Up Pradhan and Ward Member of the Panchayat and accompanied by these witnesses and fellow Police persons, had searched the shop of appellant/convict in his presence and by that time PW-11 Dy. S.P. Hitesh Lakhanpal had also arrived at the spot. It is further case of the prosecution that before raiding the shop of the appellant/convict, they had given their personal search to him vide memo Ex. PW-1/A and thereafter during search of the spot an envelope was recovered from cash box/Galla of the wooden counter of the appellant/convict, wherefrom black colour stick shape substance, wrapped in transparent polythene was recovered and on smelling and also on the basis of experience of PW-12 Gian Chand, it was identified to be charas. The said substance on weighing was found to be 350 grams. The said substance on weighing was found to be 350 grams. Thereafter recovered charas was put in the same packet and sealed in a cloth parcel Ex. P-1 and sealed with nine seals of impression 'M'. During this process relevant columns of NCB Form Ex. PW-3/D were filled in, in triplicate, by PW-12 ASI Gian Chand and seal impression 'M' was also taken on NCB Form and on separate piece of cloth Ex. PW-1/B and seal, after use, was handed over to PW-1 Manohar Lal, parcel Ex. P-1 containing charas Ex. P-3 was taken into possession vide memo Ex. PW-1/C and seizure memo Ex. PW-1/C and sample seal cloth Ex. PW-1/B were also signed by witnesses PW-1 Manohar Lal, PW-2 Rajinder Singh and Head Constable Rajinder Singh (not examined) and thereafter rukka Ex. PW-12/A was prepared by PW12 ASI Gian Chand and sent to Police Station, Kangra through PW-9 Constable Ashish Kumar, on the basis of which PW-3 H.C. Sampooran Singh registered FIR Ex. PW-9/A, which was signed by PW-10 SHO Mohinder Singh and case file was sent back to I.O. PW-12 Gian Chand. 3. Report under Section 42 (2) of the Act Ex. PW-8/A was received by SDPO Ashok Verma, which, after perusal and putting signatures thereon, was handed over to PW-8 H.C. Sanjeev Kumar, who whereafter made an entry in NDPS Register, extract thereof is Ex. PW8/B, which was duly signed by SDPO Ashok Verma. 4. During investigation PW-12 ASI Gian Chand prepared the spot map Ex. PW-12/B and arrested the appellant/convict and memo of arrest Ex. PW-1/D was prepared and information of arrest was given to son of appellant/convict. Special report Ex. PW-4/B, under Section 57 of the Act, was prepared and sent through PW-9 Constable Ashish Kumar to SDPO, Kangra, which was signed by SDPO and given to PW-4 HHC Desh Raj who had entered the same in the NDPS register, extract whereof has been placed on record as Ex. PW-4/A. 5. It is also case of prosecution that recovered contraband along with documents was produced before PW-10 SHO Mohinder Singh, who had resealed the contraband with seal 'T' and filled relevant columns of NCB Form. After taking sample seal of seal 'T' on cloth Ex. PW-10/B and preparing a certificate of resealing Ex. PW-4/A. 5. It is also case of prosecution that recovered contraband along with documents was produced before PW-10 SHO Mohinder Singh, who had resealed the contraband with seal 'T' and filled relevant columns of NCB Form. After taking sample seal of seal 'T' on cloth Ex. PW-10/B and preparing a certificate of resealing Ex. PW-10/C, case property was handed over to PW-3 H.C. Sampooran Singh, who had deposited it in Malkhana along with samples of seals and other documents after making endorsement on the NCB Form. Parcel Ex. P-1 of recovered contraband along with sample seal, NCB Form and other documents was sent to FSL Junga vide RC No. 157/13 (Ex. PW-3/C), through PW-5 Constable Pawan Kumar. With respect to departure from and arrival of police party in the Police Station rapats Ex. PW-6/A and Ex. PW-6/B were entered in Daily Station Diary, which have been proved on record by PW-6 LC Anjana. 6. After receiving FSL report Ex. PA, whereby the recovered contraband was confirmed to be charas, investigation was completed and file was handed over by PW-12 Gian Chand to PW-10 SHO Mohinder Singh, who prepared the challan and presented the same in the Court. 7. On pleading not guilty, appellant/convict was subjected to trial, wherein prosecution has examined as many as 12 witnesses to prove its case. Whereas no evidence in defence has been led by appellant/convict, after recording of his statement under Section 313 Cr.P.C. 8. PW-1 Manohar Lal and PW-2 Rajinder Singh are independent witnesses. Other three official witnesses, who were present on the spot are PW-9 Constable Ashish Kumar, PW-11-Dy. S.P. Hitesh Lakhanpal and PW-12 ASI Gian Chand. All of them have corroborated the prosecution case and have supported the recovery of contraband from the possession of appellant/convict in the same manner. The only discrepancy, pointed out by learned counsel for the appellant/convict in the statement of PW-1 Manohar Lal, is that in cross-examination he has admitted that at the time of recovery, he was in another room. All of them have corroborated the prosecution case and have supported the recovery of contraband from the possession of appellant/convict in the same manner. The only discrepancy, pointed out by learned counsel for the appellant/convict in the statement of PW-1 Manohar Lal, is that in cross-examination he has admitted that at the time of recovery, he was in another room. Though, PW-1 Manohar Lal has stated that at the time of recovery of contraband he was in another room along with other Police officials, but at the same time he has admitted that it was informed that contraband was recovered from the cash box of the counter of the appellant/convict and the said fact stands duly corroborated by PW-2 Rajinder Singh, who is also an independent witness and public representative. He has admitted that in his presence contraband was recovered and PW-1 Manohar Lal was also present in the shop, therefore, at the time of actual recovery presence of PW-1 Manohar Lal in another room neither makes any difference nor render any assistance to the appellant/convict to prove his innocence or to rebut the factum of recovery of contraband from his conscious possession, which has been duly corroborated, not only in the statement of official witnesses i.e. PW9 Constable Ashish Kumar, PW-11 Dy. S.P. Hitesh Lakhanpal and PW12 ASI Gian Chand, but also by the statements of PW-1 Mahonar Lal and PW-2 Rajinder Singh, who are independent witnesses and nothing has been brought on record in their cross-examination so as to doubt the veracity of their deposition. 9. Pw-6 L.C. Anjana has proved copies of report Ex. PW-6/A and Ex. PW-6/B, establishing the departure and arrival of Police party from and in the Police Station. She has not been cross-examined, despite granting opportunity. 10. Pw-3 Sampooran Singh was MHC at the relevant point of time. He has proved registration of FIR Ex. PW-9/A after receiving rukka Ex. PW-10/A and he has also proved issuance of certificate CIPA Ex. PW-3/A and receipt of parcel of recovered contraband Ex. P-1 along with documents as well as samples of seals 'M' and 'T' along with NCB Form and deposit thereof in the Malkhana and thereafter sending thereof to the State FSL, Junga through PW-5 Constable Pawan Kumar and handing over of receipt of delivery of the contraband in State FSL by PW-5 Constable Pawan Kumar on return to Police Station. P-1 along with documents as well as samples of seals 'M' and 'T' along with NCB Form and deposit thereof in the Malkhana and thereafter sending thereof to the State FSL, Junga through PW-5 Constable Pawan Kumar and handing over of receipt of delivery of the contraband in State FSL by PW-5 Constable Pawan Kumar on return to Police Station. In his cross-examination, nothing has been brought to disbelieve him. 11. Pw-4 HHC Desh Raj has proved on record the receipt of Special Report Ex. PW-4/B from PW-8 HC Sanjeev Kumar, which was handed over to him by SDPO after perusal and putting signatures thereon and he has proved entry thereof in NDPS Register Ex. PW-4/A. He was not subjected to any cross-examination. 12. Pw-5 Constable Pawan Kumar has proved the fact of receipt of secret information and reducing the said information in writing and handing over of it to SDPO, Kangra through him by PW-12 Gian Chand and also receiving the parcel of contraband from PW-3 Sampooran Singh and depositing it along with documents vide RC No. 157/13 (Ex. PW-3/C) in SFSL Junga and returning the deposit receipt thereof to PW-3 MHC Sampooran Singh. In his cross-examination also, there is nothing to doubt his veracity. 13. Pw-7 Ajay Kumar, Patwari has issued the certificate Ex. PW-7/A and jamabandi Ex. PW-7/B, indicating the ownership and possession of building by the appellant/convict along with co-owners. In cross-examination, he has admitted that there is nothing recorded in the jamabandi with respect to the constructed building on the land in question, but he has further explained that on the spot there is a constructed building and also that the aforesaid building is joint and has not been partitioned as yet, but there is no cross-examination on the point that appellant/convict was not running the shop in question. The said fact remained undisputed and unquestioned. 14. Pw-8 HC Sanjeev Kumar has proved the receipt of information Ex. PW-8/A under Section 42(2) of the Act in the office of SDPO, Kangra by SDPO Ashok Verma at about 3:45 P.M, which was signed by PW-12 Gian Chand and identified the signatures of Ashok Verma thereon. He has also proved the abstract of register Ex. PW-8/B with respect to entry of the said report in the SDPO Office. This witness has also not been cross-examined. 15. He has also proved the abstract of register Ex. PW-8/B with respect to entry of the said report in the SDPO Office. This witness has also not been cross-examined. 15. Pw-9 Constable Ashish Kumar was present on the spot and he has re-iterated the prosecution story and handing over of rukka to him and thereafter registration of FIR by PW-3 HC Sampoorn Singh and signing thereof by PW-10 Mohinder Singh. In his cross-examination he has shown his ignorance that there were other persons also who are owners of the shop in question. He has not admitted that there are other owners, but has expressed his ignorance with respect to this fact. It is not sufficient to prove that the shop was also owned and possessed by other persons also, as there is no positive evidence in this regard. 16. Pw-10 Mohinder Singh, the then SHO has proved the registration of FIR, resealing of contraband with seal 'T', filling up relevant columns of NCB Form, handing over of case property to PW-3 H.C. Sampooran Singh, receipt of case file after completion of investigation, preparation of challan and putting it in the Court. In his cross-examination, nothing has been brought on record to contradict the facts proved by him on record. 17. Pw-11 Hitesh Lakhanpal was Deputy Superintendent, Head Quarter, Dharamshala, who had arrived on the spot after receiving telephonic information from PW-12 Gian Chand. By that time Investigating Officer had constituted the raiding party. This witness has also corroborated the prosecution case in his examination-in-chief. In cross-examination, he has admitted that there are 2-3 shops and residential houses on the spot. However, he has clarified that independent witnesses were Up Pradhan and Ward Member of Panchayat, who had identified the shop as the shop of appellant/convict. He has not been further cross-examined on this point. 18. Pw-12 Gian Chand is Investigating Officer. He has also substantiated the prosecution case. In his cross-examination also, nothing material has been brought on record to disbelieve the prosecution case. 19. Learned counsel for the appellant/convict has pointed out that in the jamabandi, there is no entry of gair mumkin shop. Absence of entry of gair mumkin shop in revenue record is of no help to the appellant/convict, as in his cross-examination PW-7 Ajay Kumar has further explained that on the spot there is a shop in existence. 19. Learned counsel for the appellant/convict has pointed out that in the jamabandi, there is no entry of gair mumkin shop. Absence of entry of gair mumkin shop in revenue record is of no help to the appellant/convict, as in his cross-examination PW-7 Ajay Kumar has further explained that on the spot there is a shop in existence. Not only this, there are independent witnesses PW-1 Manohar Lal and PW-2 Rajinder Singh, who are none else, but the Up Pradhan and Ward Member of the Panchayat, who have identified the shop in question as shop being run by appellant/convict, which has not been further disputed in the cross-examination of these witnesses. 20. Learned counsel for the appellant/convict has also pointed out that in present case, the complainant is the Investigating Officer, as the secret information was received by PW-12 Gian Chand and he had submitted the said information to his superior, but despite that he continued to be an Investigating Officer in the case, as in view of Mohan Lal Vs. State of Punjab, (2018) AIR SC 3853, pronounced by the Apex Court, entire investigation stands vitiated and appellant is entitled to be acquitted. The Apex Court in its subsequent judgment dated 11.2.2019, Varinder Kumar Vs. State of H.P., (2019) 3 Scale 50 , has clarified that ratio of law laid down in Mohan Lal's case shall not be applicable to the cases which have been investigated or pending trial before passing of the judgment in Mohan Lal's case. It is admitted fact that in present case investigation was carried out and trial was completed prior to the pronouncement of Mohan Lal's case, therefore, the plea in this regard taken for acquitting the appellant/convict, is also not sustainable. 21. At this stage, learned counsel for the appellant has submitted that appellant was 59 year old at the time of registration of FIR against him and has been convicted at the age of 62 years and since then he is behind the bars and as of now he has attained the age of 65 years and further that recovered contraband from him is only 350 grams, which is more than small quantity, but not a commercial quantity as commercial quantity starts from 1 KG. He has also relied upon the judgment of Apex Court in Ghasita Sahu Vs. He has also relied upon the judgment of Apex Court in Ghasita Sahu Vs. State of Madhya Pradesh, (2008) 3 SCC 52 , wherein, dealing with a case of recovery of 17.750 Kg of ganja, the Apex Court, considering the fact that convict therein had completed almost four years in jail, was a middle aged man belonging to a poor background, had modified the punishment of five years to the sentence already undergone and had also reduced the amount of fine from Rs.20,000/- to Rs.10,000/-. 22. Taking into consideration contention of learned counsel for the appellant/convict in the light of pronouncement of the Apex Court referred supra and considering that recovered contraband is 350 grams which is nearer to small quantity of 100 grams and distant to commercial quantity of 1 KG and also the fact that appellant/convict has completed more than three years in jail after his conviction, besides his confinement during the investigation, the sentence imposed upon the appellant/convict is modified from five years to the sentence already undergone, which is more than three years but without reduction in the amount of fine, which is already Rs.10,000/- and appellant/convict has to pay the said find amount, if not already paid, and in default of payment of said fine amount, appellant/convict would undergo further imprisonment for one month, as already imposed by the trial Court. The appellant/convict be released forthwith, if not required in any other case and fine stands deposited. Release warrant be issued accordingly. 23. On merit, the appeal stands dismissed in aforesaid terms along with pending applications, if any.