JUDGMENT : 1. This appeal, under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), has been filed by Ashok, convict appellant, against the judgment of conviction and sentence made therein, dated 17.2.2012, passed by Court of Additional Sessions Judge, Court No. 5/Special Judge, Agra, in Special Sessions Trial No. 62 of 2005, arising out of Case Crime No. 401 of 2004, State Vs. Ashok, under Section 21 of N.D.P.S. Act (hereinafter referred to as 'Act'), Police Station Jagdishpura, District Agra, wherein convict-appellant Ashok Kumarhas been convicted for offence punishable under Section 21 of Act and has been sentenced with rigorous imprisonment of ten years and fine of Rs. 1 lac and in default two years additional rigorous imprisonment with a direction for adjustment of previous incarceration in this very case crime number, with this contention that trial Court failed to appreciate facts and law placed before it. Police arrested convict appellant from his house on 5.11.2004, for which instant telegram, complaining fact of arrest from home, to higher authorities, was sent by his wife and mother on 5-6.11.2004. Thereafter, police challened appellant on 7.11.2004 with accusation of recovery of 800 gms. of 'Heroin' from his possession whereas no such recovery was there nor prosecution could prove its case beyond doubt. But trial Court failed to appreciate facts and law, thereby, passed impugned judgment of conviction for offence punishable under Section 21 of Act. A sentence, as above, was passed, which was excessive and deterrent. There was no compliance of provision of Section 42 of the Act. The alleged place of recovery was from busy place, with a lot of rush in that area but no public witness was taken in alleged recovery memo or First Information Report. No compliance of Section 50 of Act was made. Hence, this appeal, with prayer for setting aside the impugned judgment and sentence, made in it. 2. From the very perusal of impugned judgment and record of trial Court, it is apparent that First Information Report (Ex.Ka-2) was got lodged at Police Station Jagdishpura for offence punishable under Section 8/22 of Act, against Ashok KumarSingh son of Om Prakash Thakur, resident of 27/166 Teela Gokulpura, P.S. Lohamandi, District Agra, the then residing at House No. 271, Puspanjali Colony, Dayal Bagh, P.S. New Agra, District Agra. On 7.11.2004 at 17:00 P.M., on the basis of recovery memo (Ex. On 7.11.2004 at 17:00 P.M., on the basis of recovery memo (Ex. Ka-6), prepared by Station Officer Manoj Kumar Mishra, Police Station Jagdishpura, District Agra, having mention that on 7.11.2004, S.O. Manoj Kumar Mishra, along with his police team, including Sub-Inspector Pratap Singh, Sub-Inspector Bhavar Singh, Constable Devendra Kumar and Constable Arvind Kumar, by Government jeep registration No. U.P.83 G-0007, with official driver Durga Prashad, vide G.D. Entry No. 30 at 12:10 P.M., was present in area of Bodla Avas Vikas Colony, Pratap Nagar and when team proceeded towards Awadhpuri road, one person who was under suspicious circumstances, ran towards back side. He was chased and was apprehended at 14:30 P.M. in the area of Mohalla Shanti Nagar. Upon query, he was Ashok Kumar Singh son of Om Prakash Thakur, resident as above and he confessed to be with possession of smack, for which he tried to run from spot. He was told for summoning some Gazetted Officer or Magistrate for his search but he refused and agreed to be searched by this team itself. Member of police team took their personal search and ensured that nothing incriminating is with any of them. Thenafter, personal search of Ashok Kumarwas conducted, in which a plastic bag having print “Novelty Matching Center” over it was recovered from his right hand, which was with two packets, wrapped in a newspaper and kept in a polythene, of smack with five small packets of same, wrapped in paper. This was with smell of 'Smack'. The two packets were also with smell of smack. Balance and weight, for weighing the same, were tried to be obtained from nearby. But as there were no shops nearby, hence, could not be available. Hence, it was weighed by keeping it over hand and was perceived to be of about 750 gms. In those five small packets about 50 gms. Upon query, accused confessed for sale of those smack in small packets, in which small packets were of pure smack and big two packets were with lesser concentration of smack, which was being sold to people. The recovered smack was kept in same wrapper and polythene. Thenafter wrapped in a clothe, stitched and sealed on spot; a specimen seal was prepared. Offence, punishable under Section 8/22 of N.D.P.S. Act was made, hence, he was taken in custody. The recovered smack was kept in same wrapper and polythene. Thenafter wrapped in a clothe, stitched and sealed on spot; a specimen seal was prepared. Offence, punishable under Section 8/22 of N.D.P.S. Act was made, hence, he was taken in custody. Recovery memo was got scribed by Sub-Inspector Pratap Singh, under dictation of this informant. All members of team put their signature over it and accused, along with recovered articles and recovery memo, with specimen seal, was brought at police station. Where this case crime number was got registered. Investigation resulted submission of charge-sheet for offence punishable under Section 8/21 of N.D.P.S. Act. Court of Special Judge N.D.P.S. Act, after hearing learned public prosecutor and learned counsel for defence, vide order dated 15.9.2006, levelled charge against Ashok Kumar for offence punishable under Section 8/21 of N.D.P.S. Act, for alleged recovery of 800 gms. of smack (heroin) at 14:30 P.M. Of 7.11.2004 from Mohalla Shanti Nagar within the area of Police Station Jagdishpura, District Agra. Charge was read over and explained to accused. Who pleaded not guilty and claimed for trial. 3. Prosecution examined PW-1 Constable-clerk Pratap Singh, PW2 Constable Brijesh Kumar, PW-3 Sub-Inspector Manoj Kumar Mishra, PW-4 Constable Pratap Singh Rana, PW-5 Chauthiram Yadav, PW-6 Sub-Inspector Chandra Bhushan. 4. For having explanation, if any, of accused Ashok Kumarfor incriminating evidence led by prosecution, his statement, under Section 313 of Cr.P.C., was got recorded by Trial Judge. Accused answered alleged recovery to be wrong. Testimony of PW-2, not under his knowledge but being false. Entire evidence led by prosecution and the alleged occurrence of recovery, including investigation as well as submission of charge-sheet, was on incorrect fact. It was an accusation because of animosity. 5. In defence, DW-1 Desh Raj, DW-2 Kamod Singh, DW-3 Ram Singh and DW-4 Sushila @ Shashi were examined. Learned trial Judge, after hearing argument of learned public prosecutor as well as learned counsel for defence, passed impugned judgment of conviction for offence as above and after hearing, passed impugned sentence, written as above, against which this appeal. 6. Learned counsel for the appellate vehemently argued that convict appellant was in jail for about seven years, against award of sentence of ten years, whereas the weight of the recovered 'Smack' was not on the basis of balance weight rather it was on the basis of weighing and presuming after keeping over hand. 6. Learned counsel for the appellate vehemently argued that convict appellant was in jail for about seven years, against award of sentence of ten years, whereas the weight of the recovered 'Smack' was not on the basis of balance weight rather it was on the basis of weighing and presuming after keeping over hand. It was not sure as to whether it was a commercial quantity or a quantity said to be in between small and commercial quantity. The weight of 800 gms. including wrapper and polythene weight was held to be 800 gms. in report of Forensic Science Laboratory. But it is not proved by prosecution as to whether entire material was sent for chemical analysis or a part thereof was sent for its analysis. Hence, the first argument is for assailing judgment of conviction and the second is regarding quantum of sentence. Court may reduce quantum of sentence to period undergone which is about seven years. 7. The Narcotic Drugs and Psychotropic Substances Act, 1985, Act No. 61 of 1985, with preamble, is an Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations, relating to Narcotic Drugs and Psychotropic Substances, to provide for the forfeiture of the property derived from, or used in, illicit traffic in Narcotic Drugs and Psychotropic Substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. This Central Legislation was made in operational from 16th September, 1985. Though, vide amendment inserted by Act No. 9 of 2001, with effect from 2.10.2001, Section 2 Sub-section (VIIa) “Commercial Quantity”, in relation to narcotic drugs and psychotropic substances was added in definition clause, which means, any quantity greater than the quantity specified by the Central Government by notification in the official Gazette. It was made by Ministry of Finance “Department of Revenue” vide Notification No. S.O.1055(E) dated 9.10.2001, published in Gazette of India (extraordinary) Part II, Section (II) dated 19.10.2001 at pages 15 to 32, which provides the quantity in the head of small quantity upto 5 gm. and commercial quantity above 250 gms. for “Heroin” (Diacetylmorphine) (commonly known as smack). Meaning thereby, the samll quantity is upto 5 gms. and commercial quantity is above 250 gms. of Heroin. “In between”, is a quantity, contravention of each of these three categories shall be punishable. and commercial quantity above 250 gms. for “Heroin” (Diacetylmorphine) (commonly known as smack). Meaning thereby, the samll quantity is upto 5 gms. and commercial quantity is above 250 gms. of Heroin. “In between”, is a quantity, contravention of each of these three categories shall be punishable. In between, Section 21 has been amended vide substitution by Act No. 9 of 2001, with effect from 2.10.2001 for punishment of contravention in relation to manufactured drug and preparation – Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable - (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 8. Meaning thereby, Court is with no option to give smaller sentence than given in the Act by Legislation. For a commercial quantity, the minimum sentences has been give to be not less than ten years but it may extend upto 20 years, with a fine, which shall not be less than 1 lac rupees, but, which may extend to 2 lac rupees and Court, by giving a reasoned judgment, may, for reasons, to be recorded, impose a fine exceeding 2 lac rupees. As in the present case the recovery is of 800 gms. As in the present case the recovery is of 800 gms. of Heroin (Smack) which is about more than three times of limit which brings in commercial quantity, and for this there is mandatory punishment not less than ten years, with fine not less than 1 lac, and the same has been awarded by trial Judge, hence, under the legislation as has been enacted by legislation, any bargain, as has been argued by learned counsel for the convict appellant, cannot be accepted by the Court. Hence, the argument advanced by learned counsel for period undergone i.e. seven years already suffered by convict appellant to be treated as the punishment, for offence of having Heroin, much more than heavy amount of commercial quantity, is not permissible under law and this is the lowest permissible sentence awarded by trial Court. Hence, this argument of reducing sentence is not tenable. 9. Hence, this argument of reducing sentence is not tenable. 9. Regarding non compliance of Section 42 of Act, as vehemently argued by learned counsel for the appellant, it is to be mentioned that Section 42 substituted by Act No. 9 of 2001, with effect from 2.10.2001, provides power of entry or authorization - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and subset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry;(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detail and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act. 10. 10. Meaning thereby, this provision is Power of entry, search, seizure and arrest without warrant or authorization, in case of any information, previously obtained regarding commission of offence, punishable under this Act for fulfilling ingredients, written as above. Whereas in the present case, it was not a case of previous information or receiving of information, given by someone, prior to such arrest. Rather, it was a case in which police team, led by Station Officer Manoj Kumar Mishra, while being in routine surveillance duty in its area of P.S. Jagdishpura, found one person who displayed his hesitation, on seeing police party, PW-1 and his team became suspicious. On seeing police personnel, appellant tried to ran away from the scene – it was not a case where prosecution claimed that appellant was apprehended on the basis of any earlier information having been given by any secret informer – it was also not a case of trap, rather it was a sudden occurrence of recovery of huge quantity of Smack (Heroin) from convict-appellant. Hence, no question of compliance of Section 42 or 43 of the Act, power of seizure and arrest in public places, arises. 11. Non compliance of Section 50 of Act has been vehemently argued by learned counsel for appellant. In order to appreciate the contention raised by learned counsel appearing for the appellant with regard to non compliance of Section 50 of the Act, it is necessary to notice Section 50 of the Act. It reads as under: 50. Conditions under which search of persons shall be conducted: (1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43 of the Act, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. 11 (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. 11 (1). Apex Court in Ajmer Singh Vs. State of Haryana (2010) 3 Supreme Court Cases 746 in Para 14 has propounded as below: "The object, purpose and scope of Section 50 of the Act was the subject matter of discussion in number of decisions of this Court. The Constitution Bench of five Judges of this Court in the case of State of Punjab v. Baldev Singh, [ (1999) 6 SCC 172 ], after exhaustive consideration of the decision of this court in the case of Ali Mustaffa Abdul Rahman Moosa vs. State of Kerala, [(1994) 6 SCC 569] and Pooran Mal vs. Director of Inspection (Investigation), New Delhi & Ors., [ (1974) 1 SCC 345 ], have concluded in para 57 : (I) When search and seizure is to be conducted under the provision of the Act, it is imperative for him to inform the person concerned of his right of being taken to the nearest gazetted officer or the nearest Magistrate for making search. (II) Failure to inform the accused of such right would cause prejudice to an accused. (III) That a search made by an empowered officer, on prior information, without informing the accused of such a right may not vitiate trial, but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction is solely based on the possession of the illicit article, recovered from his person, during such search. (IV) The investigation agency must follow the procedure as envisaged by the statute scrupulously and failure to do so would lead to unfair trial contrary to the concept of justice. (V) That the question as to whether the safeguards provided in Section 50 of the Act have been duly observed would have to be determined by the court on the basis of the evidence at the trial and without giving an opportunity to the prosecution to establish the compliance of Section 50 of the Act would not be permissible as it would cut short a criminal trial. (VI) That the non compliance of the procedure i.e. informing the accused of the right under sub-Section (1) of Section 50 may render the recovery of contraband suspect and conviction and sentence of an accused bad and unsustainable in law. (VII) The illicit article seized from the person of an accused during search conducted without complying the procedure under Section 50, cannot be relied upon as evidence for proving the unlawful possession of the contraband. 11(2). Learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, briefcase, etc., carried by the person and its non compliance could be fatal to the proceeding initiated under the Act. Apex Court in Ajmer Singh (supra) has held “We find no merit in the contention of the learned counsel. It requires to be noticed that the question of compliance or non-compliance of Section 50 of the N.D.P.S. Act is relevant only in a situation where search of a person is involved and the said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, brief case, container, etc., does not come within the ambit of Section 50 of the N.D.P.S. Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, this Section speaks of taking of the person to be searched by the Gazetted Officer or Magistrate for the purpose of search. Thirdly, this issue, in our considered opinion, is no more res-integra in view of the observations made by this court in the case of Madan Lal vs. State of Himachal Pradesh, 2003 7 SCC 465. The Court has observed; as follows: 16. "A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (See Kalema Tumba vs. State of Maharashtra and Anr.(1999) 8 SCC257, State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Gurbax Singh vs. State of Haryana (2001) 3 SCC 28 . The language of section is implicitly clear that the search has to be in relation to a person as contrast to search of premises, vehicles, or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). The language of section is implicitly clear that the search has to be in relation to a person as contrast to search of premises, vehicles, or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance." 11(3). In the present case, the recovery is from a plastic bag having printed “Novelty Matching Centre” over it and it was being carried in the right hand of the convict-appellant. There was no recovery from his personal search, rather it was recovery from a container which was being carried by convict-appellant, for which there was no requirement for application of Section 50 of the Act. But as personal search too was taken, as was written in Ex. Ka-1 Recovery Memo. Hence, on the basis of judgment of Apex Court given in State of Rajasthan Vs. Parmanand & another AIR 2014 SC 1384 , the observance of Section 50 of Act was to be taken into consideration. In the present case, it has specifically been written in First Information Report Ex. Ka-2, got lodged on the basis of recovery memo Ex. Hence, on the basis of judgment of Apex Court given in State of Rajasthan Vs. Parmanand & another AIR 2014 SC 1384 , the observance of Section 50 of Act was to be taken into consideration. In the present case, it has specifically been written in First Information Report Ex. Ka-2, got lodged on the basis of recovery memo Ex. Ka-6 that idMs+ x;s O;fDr dk uke irk iwNrs gq;s Hkkxus dk dkj.k iwNk x;k rks viuk uke v'kksd ,l@vks Jh vkse izdk'k Bkdqj vkj@vks e0ua0 27@166 Vksyk xksdqy iqjk] Fkkuk yksgkeaMh vkxjk gky irk e0au0 21 iq"ikUtyh dkyksuh n;kyckx Fkkuk U;w vkxjk] vkxjk crk;k rFkk Hkkxus dk dkj.k vius ikl LeSd gksuk crk;kA vfHk0 ds ikl LeSd dh tkudkjh gksus ij v'kksd ls dgk x;k fd tkek ryk'kh gsrq fdlh jktif=r vf/kdkjh ;k eftLVªsV dks cqyok;k tk;s rks ekaQh ekaxrs gq, cksyk fd fdlh dks cqyokus dh vko';drk ugha gSA ugha ge dgha ryk'kh ds fy;s tk;asxas vki yksxksa us tc gesa jaxs gkFk idM+ fy;k gS rks vki ij gesa iwjk Hkjkslk gSA vki gh tkek ryk'kh ys yksA^^ “When cause for this running and hesitation from police was asked, Ashok Kumarson of Om Prakash Thakur, resident of Houe No. 27/166 Teela Gokulpur, P.S. Lohamandi, Agra, presently residing at House No. 21, Puspanjali Colony, Dayal Bagh, P.S. New Agra, Agra, shown sign of fear as he was having Smack with him, for which he was running, after this knowledge of having Smack, he was asked for getting his personal search made before the Gazetted Officer or Magistrate summoned for, he requested excuse and mentioned that there is no need for summoning any other nor he will go anywhere else for his personal search as you have apprehended red handed, there is full faith upon you. You yourself take personal search.... (English translation by this Court itself). 11(4). The same is contention in testimony of PW-3, Sub-Inspector Manoj Kumar Mishra, and PW-4 Sub-Inspector Pratap Singh Rana. You yourself take personal search.... (English translation by this Court itself). 11(4). The same is contention in testimony of PW-3, Sub-Inspector Manoj Kumar Mishra, and PW-4 Sub-Inspector Pratap Singh Rana. PW-3 Sub-Inspector Manoj Kumar Mishra, in his testimony, has categorically said in Examination-in-Chief ^^Hkkxus dk dkj.k iwNus ij v'kksd us crk;k tks vkt gkftj vnkyr gSA Hkkxus dk dkj.k iwNus ij v'kksd us crk;k fd mlds ikl LeSd gS blfy, og ge ge yksxksa dk ns[kdj Hkkxk FkkA bl ij geus vfHk0 v'kksd ls dgk fd vc vkidh ryk'kh fdlh jktif=r vf/kdkjh o eftLVªsV ds le{k djk;h tk;sxh rks v'kksd us gels dgk Fkk fd tc vkius gedks idM+ gh fy;k gS rks gesa vc vkids Åij iwjk fo'okl gS vkSj gesa fdlh ds le{k ryk'kh ds fy, ugha tkukA vki gh gekjh ryk'kh ys yhft,A^^ “when cause for running after seeing police team, was questioned, Ashok Kumar answered that he is with Smack that is why he hesitated and ran away from police. Upon this, we asked Ashok Kumarfor his personal search in presence of some Gazetted Officer or Magistrate, but he refused with this saying that he has been apprehended by Police team, upon whom he has full faith. He will not go to someone else for his personal search and this Police team, itself may take personal search... (English translation by this Court itself). No cross-question upon this testimony is there in Examination-in-Cross, made by learned counsel for defence and this statement of Examination-in-Chief is unrebutted in cross-examination. The same is situation in regard to testimony of PW-4 Sub-Inspector Pratap Singh Rana. This is very well there in the testimony of Investigating Officer PW-5 Sub-Inspector Chauthiram, in his cross-examination. This was put in question Nos. 3, 4 and 5, recorded under Section 313 of Cr.P.C., and except a wrong sequence of occurrence no statement about non-compliance of Section 50 or not giving that option or telling about this right, was said by accused. Hence, in over all appreciation, it is apparent that provision of Section 50 was fully complied with. 12. The next argument was regarding absence of any independent public witness. Apex Court in Jarnail Singh Vs. Hence, in over all appreciation, it is apparent that provision of Section 50 was fully complied with. 12. The next argument was regarding absence of any independent public witness. Apex Court in Jarnail Singh Vs. State of Punjab (2011) 3 Supreme Court Cases 521 in Para 11 and 12 has propounded that none of independent witnesses in circumstances when they are not available or not agree to be witnesses, is not fatal to the prosecution. In above case, the fact involved was that police personal had noticed odd behaviour of appellant Jarnail Singh, when he was walking towards them on a path which led to the village – it was display of hesitation by appellant, on seeing police party, that police officer became suspicious – on seeing police personal, appellant tried to run away from the scene – it was not a case where prosecution claimed that appellant was apprehended on the basis of any earlier information having been given by any secret informer – it was also not a case of trap and Court held that in such circumstances it would not be possible to held that appellant was falsely implicated. 13. In the present case, prosecution has offered a plausible explanation with regard to non joining of independent witnesses, It was clearly stated by PW-3 and 4 that the place, from where, appellant was apprehended was with public, going through above path, in fact, efforts were made to bring independent public witness, but this reluctance, on the part of the persons, was neither strange nor unbelievable. Generally, people belonging to the same locality could not unnecessarily want to create bad relation/enmity with any other co-resident. Especially, would feel insecurity from such person, having been accused of committing a crime. 14. Apex Court in Ajmer Singh Vs. State of Haryana (2010) 3 Supreme Court Cases 746 in Para Nos. 19 to 21 has held that when there is sufficient testimony of prosecution witnesses on record that efforts were made by the Investigating Party to include independent witnesses at the time of recovery but none was willing and it is true that charge under N.D.P.S. Act is serious and carries onrush circumstances. The minimum sentence prescribed under the Act is imprisonment of ten years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of prosecution. The minimum sentence prescribed under the Act is imprisonment of ten years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of prosecution. However, it is not an unavoidable rule. Therefore, in the peculiar circumstances of the case, it may not be fatal to prosecution. Court in Para No. 20 has said “We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery, made, would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable, after taking due care and caution, in evaluating their evidence.” In the present case, PW-3 and PW-4 both witnesses of fact have said in their testimony that in spite of best efforts for taking independent public witnesses, none agreed to accompanying them. Then after members of police team took the search of each other for ensuring that nothing incriminating was with any of them and after that too the contraband was recovered from a bag being carried by convict appellant. There was no recovery from personal search of convict-appellant and for this there is sufficient testimony of prosecution witnesses. Hence, argument on this score is also of no avail. 15. Learned counsel for the appellant vehemently argued that there was no weighing machine nor it was weighed and only on the basis of perception, the weight was fixed, 750 gms. for two packets; of Smack and 50 gms. for remaining five small packets in all 800 gms. Certainly at the first score, this appears to be with force. But the police team did not write that a balance was managed and recovered contraband was weighed over it, rather what was there was written as such and this entire contraband was sealed with preparation of specimen seal on spot and this was fully intact till its analysis by chemical examination at Forensic Science Laboratory, where it was held to be of weight of 800 gms. in all and the same was found to be “Smack (Heroin)”. 16. Ex. Ka-6, report of Forensic Science Laboratory, Agra, duly tendered and admissible in evidence is with this mention that a content, wrapped in a cloth, and sealed as per specimen seal of monogram of U.P.P., having a polythene with its content, i.e. five small packets in a newspaper piece marked with 1 to 5 in a polythene packet each one of about 10 gm., and two packets of suspected Smack in two polythene packet, kept in a newspaper piece marked as 6 and 7, were received on 2.12.2004 and the same was as per description, mentioned in transmitting letter, the same were of that weight and in chemical analysis those suspected Smack were established to be Heroin. Meaning thereby, the contents transmitted to Forensic Science Laboratory, in intact sealed position, with specimen seal, was found to be as per specimen seal, and with above description. In chemical analysis, these contraband were found to be “Heroin”. This documentary evidence has been put in question to accused, under Section 313 Cr.P.C., as question No. 6, in which the question regarding proved documentary evidence Ex.Ka-8, report of Forensic Science Laboratory, Agra, was asked, but no answer regarding this report is there. Rather in answer to question No.6 the reply is ^^vkjksi i= xyr gSA^^ Charge-sheet is wrong” i.e. charge-sheet Ex.Ka-9 has been disputed to be wrong but Ex.Ka-8, Forensic Science Laboratory Report, has neither been disputed nor any answer to question was given. 17. Regarding intermediary link of taking the entire contraband, recovered on spot, to Forensic Science Laboratory for its examination, prosecution has examined PW-2 Constable Brijesh Kumar, who, in his Examination-in-Chief, has said that while being posted as constable on 2.12.2004 at Police Station Jagdishpura, he vide G.D. Entry No. 30 at about 12:05 P.M. took a sealed bundle, with specimen seal, related with Case Crime No. 401 of 2004 (STATE VS. ASHOK) under Section 8/21, from Malkhana of Police Station Jagdish Pura and deposited it under intact sealed position, along with specimen seal and letter of transmission at Forensic Science Laboratory, Agra. In between, it was never permitted to be interfered by anyone. ASHOK) under Section 8/21, from Malkhana of Police Station Jagdish Pura and deposited it under intact sealed position, along with specimen seal and letter of transmission at Forensic Science Laboratory, Agra. In between, it was never permitted to be interfered by anyone. This taking of bundle was entered in G.D. Entry No. 30 of Police Station Jagdishpura, under handwriting of Head Constable Raj Bahadur Singh, who was posted with this witness and whose writing and signature is under full acquaintance of this witness. The true copy, duly certified, by this witness, under handwriting and signature, of above original G.D. Entry, which was brought in the Court at the time of recording of this testimony, has been filed and exhibited as Ex.Ka-4 and on the same day of 2.12.2004, vide G.D. Entry No. 50 at about 17:15 P.M., this witness got entry of return, after depositing contraband under sealed intact position at Forensic Science Laboratory, Agra, and this second copy of deposit i.e. letter of transmission was got deposited at Police Station Jagdishpura and original G.D. Entry of this deposit, in form of carbon copy, prepared in one and common process, under handwriting and signature of Constable-clerk Parshuram has been before the witness at the time of recording of his testimony. This witness was of full acquaintance of handwriting and signature of constable-clerk Parshuram, because of being posted jointly at above police station and this G.D. Entry has been exhibited as Ex. Ka-5. In cross-examination, a suggestive question has been put by learned counsel for the defence that this contraband was permitted to be tampered and was not deposited in laboratory under intact sealed position. This question has been answered in negative, with further assertion that the above bundle of above case crime number was taken from Malkhana Muharrir under sealed intact position and this along with form was deposited at Forensic Science Laboratory under receipt of same over duplicate copy and signature of receipt copy was got obtained for it. This question has been answered in negative, with further assertion that the above bundle of above case crime number was taken from Malkhana Muharrir under sealed intact position and this along with form was deposited at Forensic Science Laboratory under receipt of same over duplicate copy and signature of receipt copy was got obtained for it. No question over this point has been asked by learned counsel for defence that this witness was not posted at above police station on above date, time and place or Ex.Ka-4 and Ex.Ka-5 were not the original G.D. Entry or this witness has not taken the sealed bundle packed along with specimen seal and requisite Form from Malkhana of police station on above date, time and place or had not deposited the same at Forensic Science Laboratory, Agra, or the weight of contraband was tampered. Rather the same testimony of Examination-in-Chief is uncontroverted in Examination-in-Cross and from it this has been fully proved that the recovered article, wrapped in a cloth, sealed on spot, with preparation of specimen seal, sent to Forensic Science Laboratory for its analysis, was deposited at police station concerned, from where vide Ex.Ka-4, it was transmitted to Forensic Science Laboratory for its examination and vide Ex.Ka-5, the receipt of same was deposited back by this witness at above police station. Hence, this was intermediary link, fully proved by prosecution and in Ex.Ka-8, weight has been established. Specimen seal and its being fully intact over bundle of contraband with contraband being Heroin, has been proved by Laboratory. Hence, weight of 800 gms. in toto of Heroin, as was perceived by PW-3, on spot, and was written in recovery memo Ex.Ka-6, was substantiated by Ex.Ka-8, Forensic Science Laboratory Report. Hence, this non weighing on spot was of no adverse effect over case of prosecution, rather, it was fully proved by PW-3 and 4 that in spite of best efforts, balance for weighing contraband on spot, could not be available. Hence, whatever was actual situation, on spot, has been naturally proved by this testimony. 18. PW-1 Constable Pratap Singh is witness for registration of above case crime number on above date, time and place. Hence, whatever was actual situation, on spot, has been naturally proved by this testimony. 18. PW-1 Constable Pratap Singh is witness for registration of above case crime number on above date, time and place. This witness has said, on oath, in his Examination-in-Chief, that, while being posted as Constable-clerk at P.S. Jagdishpura, on 7.11.2004, S.O. Manoj Kumar Mishra, along with other police personnel, did their entry at G.D. Entry No. 30 at 12:10 P.M. for their movement regarding routine duty and surveillance in the area and the original G.D. prepared for one and common process by pasting carbon, with signature of S.O. Manoj Kumar Mishra was present before this witness at the time of recording of his testimony. He being posted with S.O. Manoj Kumar Mishra, at above police station, was fully aware of his handwriting and siganture and the G.D. Entry, duly certified to be true copy under handwriting and signature of this witness, has been proved and exhibited as Ex.Ka-1. The return of this police team on the same day at 17:00 P.M., along with one sealed bundle of recovered 'Smack' with specimen seal was entered in General Diary Entry of police station concerned. On the basis of recovery memo presented by this police team chick F.I.R. and thereby registration of this case crime number vide entry No. 38 at 17:00 P.M., was prepared by this witness under his handwriting and signature. This Chick F.I.R. has been fully proved and exhibited as Ex.Ka-2 and this General Diary Entry, vide which, this case crime number was lodged under handwriting and signature of this witness, has been duly proved and exhibited as Ex.Ka-3. Accused Ashok Kumarwas put in lock up and contraband bundle under sealed and intact position, along with specimen seal, prepared on spot, was deposited in Malkhana and this remained intact with no chance on interference till its taking to Laboratory. Information of this registration of case crime number was transmitted to senior officers by R.T. Set. In cross-examination, no question regarding Ex.Ka-1, Ex.Ka-2 and Ex.Ka-3 has been put by learned counsel for defence. Except suggestive question that this registration was under influence of Station Officer and this was a false concoction. This has been answered in negative. Information of this registration of case crime number was transmitted to senior officers by R.T. Set. In cross-examination, no question regarding Ex.Ka-1, Ex.Ka-2 and Ex.Ka-3 has been put by learned counsel for defence. Except suggestive question that this registration was under influence of Station Officer and this was a false concoction. This has been answered in negative. This witness, in cross-examination, has specifically said that this case crime number was got registered by Station Officer Manoj Kumar Mishra, who was present at police station and this contraband article was deposited in Malkhana by this witness himself because he was incharge of Malkhana on that day. No question regarding any likelihood of tampering with Malkhana or deposit of contraband as well as specimen seal, not at Malkhana, was put by learned counsel for defence. The entire testimony of Examination-in-Chief of this witness is almost uncontroverted. This witness is formal, fully reliable witness. 19. PW-3 S.O. Manoj Kumar Mishra, in his Examination-in-Chief has supported the contention of prosecution written as above and has proved material Ex. 1 to 11 as well as recovery memo Ex. Ka-6. In cross-examination, this witness has specifically said that contraband bundle was placed before Court at the time of remand where case crime number and section and Signature along with date and seal of Special Judge is there over the cloth of bundle i.e. the same bundle which was placed instantly at the time of remand before Special Judge, with mention of this case crime number and section, has been produced before this witness at the time of trial and this recovered article was Smack. He was given a suggestive question that this accused was taken from his house on 5.11.2004 and a false accusation was got lodged, which has been answered in negative. There is no embellishment, material contradiction or exaggeration in testimony of this witness, rather, he is fully reliable natural witness. 20. PW-4 Pratap Singh Rana is another witness of fact in full corroboration with testimony of PWs and having no contradiction in his cross-examination, fully reliable witness. 21. PW-5 Chauthi Ram Yadav was first Investigating Officer. While being posted as Sub Inspector at Police Station Jagdishpura, Agra, on 7.11.2004, this investigation of case crime No. 401 of 2004, under Section 8/22 of N.D.P.S. Act (State Vs. Ashok) Police Station Jugdishpura, was entrusted to this Investigating Officer on 8.11.2004. 21. PW-5 Chauthi Ram Yadav was first Investigating Officer. While being posted as Sub Inspector at Police Station Jagdishpura, Agra, on 7.11.2004, this investigation of case crime No. 401 of 2004, under Section 8/22 of N.D.P.S. Act (State Vs. Ashok) Police Station Jugdishpura, was entrusted to this Investigating Officer on 8.11.2004. He presented at the place of occurrence and upon pointing of Sub-Inspector Chand Bhushan Singh, spot map, Ex.Ka-7, was got prepared, under handwriting and signature of this witness, which is on record. He formally proved investigation, made by him, and he has proved in his cross-examination that compliance of Section 50 was made by informant and his co-police personnel Pratap Singh. The contradiction was produced before Court at the time of first hearing. This witness is with no material contraction or exaggeration. 22. PW-6 Sub-Inspector Chand Bhushan Singh is the Investigating Officer, who has submitted charge-sheet Ex.Ka-9, in his handwriting and signature. He has proved Ex.Ka-8, report of Forensic Science Laboratory, wherein report of Heroin was there. In cross-examination, this witness has reiterated the statement, made in Examination-in-Chief, there is no contradiction or exaggeration. 23. While being asked under Section 313 of Cr.P.C., accused has taken plea of false implication for which he has examined Deshraj as DW-1. But Deshraj, who stood in Examination-in-Chief for proving a telegram alleged to be made by Smt. Shashi, wife of accused, on 6.11.2004 at about 12:10 P.M., as telegram No. A-21. But in Examination-in-Cross, he said that he was with no governmental document, as none was available and there is no original copy of alleged telegram nor of its receipts, rather, it is a photostat copy which can be prepared by manipulation. This alleged telegram was with no signature or receiving of office. His testimony is on the basis of memory and not on Government documents i.e., neither original telegram nor original receipt nor any document of its sending or receipt of telegram proved by him, rather his testimony was based on his memory, i.e., not supported with any documentary evidence. 24. DW-2 Pramod Singh is witness of fact, that Ashok Kumarwas taken by police on 5.11.2004, from his home, but in cross-examination he has said that he has not said at any previous time about his contention being given in his testimony and this is with a view to get accused acquitted. 24. DW-2 Pramod Singh is witness of fact, that Ashok Kumarwas taken by police on 5.11.2004, from his home, but in cross-examination he has said that he has not said at any previous time about his contention being given in his testimony and this is with a view to get accused acquitted. No complaint or report to any police authority or any statement under Section 161 of Cr.P.C. was ever made by this witness and he being an acquaintance with accused had come to Court for giving his evidence that too a sketchy evidence is there. 25. DW-3 is Ram Singh. But his testimony is on the basis of statement given by his wife Sandhya Devi, who was present therat, i.e., this witness is with no first hand information, rather it was his wife Sandhya Devi who has narrated to this witness. Hence, this witness is hearsay witness. 26. DW-4 is Shushila @ Shsashi Devi, wife of convict-appellant Ashok. She, in her Examination-in-Chief, has said that her husband was taken by police on 5.11.2004 from her home. A telegram to National Human Right Commission was sent by her. Subsequently, it came to notice that accused has been challaned by S.O. Jagdishpura. In cross-examination this witness has said that she is illiterate lady, not aware of date and time of arrest or sending of telegram. She is not aware of her date of birth. Her husband was taken on 5th but not under her knowledge of month or year. Her testimony is not with force for creating doubt in a proved case of prosecution. 27. Upon above facts and circumstances and testimony, learned Trial Court passed impugned judgment of conviction and order of sentence. There occurred no failure in appreciation of law, evidence and facts placed before the Court. Thereby this appeal merits its dismissal. 28. Accordingly, this Criminal Appeal is dismissed. 29. Convict-appellant Ashok Kumar who is on bail is being directed to surrender before learned Trial Court within 15 days of judgment, from where he shall be taken in custody by learned Trial Court and be sent for suffering remaining sentence. 30. Record of trial Court along with certified copy of the judgment be transmitted to learned Trial Court at an earliest, for follow up.