1. This appeal has been filed against the judgment and order dated 10.11.2005 passed in Sessions Case No.4/2004 whereby the present appellants have been convicted and sentenced as under:

Accused Syed Jalaluddeen

Section 8/20(b)(ii)(c) NDPS Act

10 years rigorous imprisonment and a fine of Rs.1,00,000 in default whereof to further undergo 2 years rigorous imprisonment.

Section 8/21 (a) NDPS Act

Three months rigorous imprisonment.

Accused Bee Singh

Section 8/20(b)(ii)(c) NDPS Act.

10 years rigorous imprisonment and a fine of Rs.1,00,000 in default whereof to further undergo 2 years rigorous imprisonment.

2. The brief facts of the case are that on 24.2.2004, the then SHO, PS. Kishangaj, PW4 Suresh Kumar received an information through informer that two persons, viz., Kashmir and Khadim are staying in Ratidang, Mitra Nagar and having charas and they will soon leave to sale the same. The information was recorded as Ex.P15. Independent witnesses were called. The SHO and other police personnel reached the place at 6.15 p.m. The present appellants were having bags in their hands. They tried to run away. They were intercepted. They disclosed their identity as Syed Jalaluddeen and Beer Singh. Notice under Section 50 of the NDPS Act was given and after following the provisions of the NDPS Act, search was conducted. In the search, 1.500 gms charas was recovered from Syed Jalaluddeen and 1.150 gms charas was recovered from Beer Singh. 5 gms smack was also recovered from the pocket of shirt of Syed Jalaluddeen. Samples were taken as per the prescribed procedure and after completing all the formalities, a case was registered under Section 8/20 and 8/21 of the NDPS Act. After investigation, challan was filed and the charges were framed against the present appellants. The prosecution examined as many as 8 witnesses and exhibited 33 documents. The accused/appellants were examined under Section 313 Cr.P.C. No defence witness was produced. The learned trial Court, after considering the material available on record, convicted and sentenced the present appellants as aforesaid. Hence, this appeal.

3. The contention of the present appellants is that there are several infirmities and contradictions in the statements of witnesses. The mandatory provisions were not complied with. He has submitted that the provisions of Sections 42, 50, 55 and 57 of the NDPS Act were not compiled with. Motbir witnesses have not supported the prosecution story. There is a difference of weight in the sample received at the FSL and he has further submitted that the science is excessive.

4. The learned Public Prosecutor has submitted that the prosecution has fully proved its case and there is no infirmity in the conviction and sentence.

5. Heard learned counsel for the appellants and the learned Public Prosecutor and perused the record and the impugned judgment.

6. The first contention of the present appellants is that Section 50 of the NDPS Act has not been complied with. PW4 Suresh Kumar Mehrania, who was the SHO, has stated that notice under Section 50 of the NDPS Act was given to the appellants and they have consented that search and seizure be made by the seizure officer and the consent memos Ex.P3 and Ex.P4 are on record. Learned counsel for the appellants has placed reliance on the judgment delivered in the case of Narcotics Central Bureau v. Sukh Dev Raj Sodhi (2011 Cr. L.R. (SC) 545), and submits that the present appellants were not taken to the nearby Magistrate and hence compliance of the provisions of Section 50 of the NDPS Act has not been made.

7. In the present case, the appellants have opted that search and seizure be made by the seizure officer and there was no need to take the present appellants to the nearby Magistrate. In Narcotics Central Bureau v. Sukh Dev Raj Sodhi (supra), the accused opted that the search be made in presence of the Gazetted Officer and hence it was the duty of the seizure officer that the accused should be taken before a nearby Gazetted Officer. Hence, this grievance does not survive.

8. Further, the counsel for the appellants have relied upon the judgment delivered in the case of State of Delhi v. Ram Avata @ Rama (2011 (4) RLW 3500 (SC)) [LQ/SC/2011/870] wherein it has been held that it was obligatory on the part of the officer to make the suspect aware of his rights that under the law they can be searched before the Gazetted Officer or the nearby Magistrate and when no such right has been communicated to the accused, provisions of Section 50 of the NDPS Act have not been complied with. Learned counsel for the appellants has relied upon the Supreme Court judgment delivered in 2010 (4) R.C.R. (Cri.) 911 : Criminal Appeal No.943/2005, Vijay Singh Chandubha Jadeja v. State of Gujarat (Criminal Appeal No.943/2003), decided on 1.12.2010 wherein the authority has not informed about the existing rights of the appellant to be searched in the presence of the Magistrate or a Gazetted Officer.

9. But, here in the present case, the appellants have been informed about their right to be searched in the presence of a Gazetted Officer or a Magistrate and hence this case is not helpful to the present appellants.

10. Further, there is no dispute about the legal position that the accused should be given option as envisaged under Section 50 of the NDPS Act, but in the present case, Ex.P1 and Ex.P2 reveal that the present appellants were informed about their rights. The learned Public Prosecutor has relied upon the judgment delivered in the case of Dehal Singh v. State of Himachal Pradesh ((2010) 9 SCC 85 [LQ/SC/2010/910] : 2010 (4) RLW 3406 (SC)) [LQ/SC/2010/910] , wherein it has been held as under:

Further the authorized officer is to apprise person about to be searched to be taken to the nearest Gazetted Officer or to the Magistrate, if the person about to be searched so requires. Such an option was given to the appellants and, in our opinion, it is nothing but apprising them of their right. Option to choose is given to an accused when he has right to choose. It is communication of right either to accept or reject. Therefore, in our opinion giving the appellants option to be searched satisfied the requirement of Section 50 of the Act.

11. In the present case, the appellants were apprised of their rights and option was given to them whether they want to be searched before a Gazetted Officer or a Magistrate and the present appellants opted that they should be searched by the seizure officer and hence it cannot be said that provisions of Section 50 of the NDPS Act have not been complied with. Thus, the objection of the present appellants in this regard is not sustainable.

12. The other contention of the present appellants is that Section 42 of the NDPS Act has also not been complied with. Memo under Section 42 of the NDPS Act has not been scribed by the Investigating Officer and hence, the same is doubtful.

13. It is nowhere provided that the information under Section 42 of the NDPS Act should be reduced in writing by the Investigating Officer himself and PW4 Suresh Kumar has stated that he got prepared memo, i.e. Ex.P15 and in cross-examination he has stated that it was reduced in writing on his direction and hence it cannot be inferred that the provisions of Section 42 of the NDPS Act have not been complied with.

14. It has further been submitted that the dispatch register has not been placed on record in which entry regarding dispatch of the information to the superior officer has been made. Learned Public Prosecutor has submitted that Rojnamcha Ex.P23 has been palced on record, which contains the entry that information has been sent to the Superintendent of Police. Hence, there is no need to place the dispatch before the court.

15. This contention of the learned Public Prosecutor is well founded that when the Rojnamcha has been palced on record, which shows that information was sent to the superior officer, there was no need to place on the record the dispatch register.

16. It has also been contended that Ex.P16 has been palced on record to show that the information has been sent to the Superintendent of Police but it is not the true copy of Ex.P15, which is the memo prepared under Section 42 of the NDPS Act and hence copy of Ex.P15 has not been received to the superior officer.

17. All these contentions are misconceived. Ex.P16 clearly shows that it is a forwarding letter by which copy of Ex.P15 has been sent to the superior officer in compliance of the provisions of Section 42 of the NDPS Act. PW4 Ramkishan has stated that he has taken the memo under Section 42 of the NDPS Act to the Superintendent of Police and it was handed over there. In cross-examination, he has also stated that he took a letter and along with the letter, information and nakal Rojnamcha were also there and Ex.P16 also goes to show that memo of information and copy of Rojnamcha were attached to Ex.P16.

18. Learned counsel for the appellants has drawn my attention towards the cross-examination of PW5 Ramkishan, where it has been stated that information was reduced in writing and information which was given prior to the seizure officer, had not taken that information to the Superintendent of Police. This question seems to be of trapping the witness. This witness has specifically stated that he has taken the information recorded under Section 42 of the NDPS Act to the Superintendent of Police and further in cross-examination he has stated that he has taken the information and copy of Rojnamcha with the letter. Hence, there is no infirmity in the statement of this witness. It has not been explained to the witness that which information the defence counsel wants to state and which information has been received prior to recording of information in Rojnamcha and due to this confusion, answer seems to be given and hence there is no infirmity in the proceedings undertaken under Section 42 of the NDPS Act.

19. The next contention of the present appellants is that independent witnesses have not corroborated the prosecution and PW1 Deepak Parashar and PW2 Mahendra Singh are hostile. Be that as it may, when the other witnesses have corroborated the prosecution case, it cannot be rejected only on the group that independent witnesses have not corroborated the prosecution case.

20. The learned Public Prosecutor has relied upon the judgment rendered in the case of Dharampal Singh v. State of Punjab ((2010) 9 SCC 608 [LQ/SC/2010/955] ).

21. The other contention of the present appellants is that samples, which were taken on the spot were of 100 gms. but the FSL Report goes tot show that the samples, which were reached to the laboratory, were of 87 and 85 gms each and hence there is a material variance in weight between the samples which were taken at the spot and reached to the laboratory and this casts serious doubt on the prosecution case and he has palced reliance on the judgment delivered in the case of Rajesh Jagdamba Avasthi v. State of Goa (2005 (3) SRJ 322).

22. The learned Public Prosecutor has submitted that at the spot, thee was only basic weighing machine whereas in the laboratories, there are more improved and sensitive machines and hence the difference in weight may arise and the difference is only a marginal one.

23. PW4 Suresh Kumar has stated that he took the samples and after properly sealing it, he deposited in the Malkhana which was further sent to the FSL. The FSL Report has been placed on record as Ex.P22 and it contains that the packets A, B and C were properly sealed bearing seal which tally with the specimen seal impression forwarded to it and the seals were intact. Hence, it is proved that the samples, which were taken at the spot, reached to the FSL intact and there is no evidence, which could suggest that there is any tempering with the samples.

24. Looking at the above marginal difference of weight in sample could not make the whole prosecution case untrustworthy.

25. The next contention of the present appellants is regarding non-compliance of Sections 55 and 57 of the NDPS Act.

26. The learned Public Prosecutor submits that these provisions are directory and violation of these provisions ipso facto could not vitiate the trial or conviction.

27. The learned counsel for the appellants relied upon the judgments delivered in the cases of Gurbax Singh v. State of Haryana (2001 Cr. LR (SC) 166), wherein it has been held that the provisions of Sections 55 and 57 are directory and violation of these provisions would not ipso facto violate the trial or conviction and it has been further noticed that Section 57 has been complied with.

28. Ex.P21 has been sent to the superior officer on the same day. Learned counsel for the appellants has submitted that it is not a full report of the incident, which has been admitted by PW4. PW4 has admitted that Ex.P21 does not contain the full report of the incident. According to Section 57 of the NDPS Act, it was not necessary to send a full report of the incident. Only full report of the arrest or seizure was necessary as provided under Section 57 of the NDPS Act and by plain reading of Ex.P21 it reveals that it contains the full particulars of seizure and arrest and hence it cannot be inferred that the provisions of Section 57 have not been complied with.

29. The trial court has considered the material on record and formed a considered opinion that charas and smack were recovered from the conscious possession of the petitioner. Hence, there is no infirmity in the conviction arrived at by the trial Court.

30. The contention of the present appellants is that it is alleged that charas has been recovered from the present appellants and the percentage of resin in the contents has to be ascertained and only on the percentage of resin, the quantity should be worked out and the, sentence should be proportionately reduced. He has placed reliance upon the decisions rendered in the cases of Kanshi Ram v. State of H.P. (2007) 3 Crimes 425 (HP)), Dharam Pal v. State of H.P. (2008 (1) Crimes 337 (HP)) and Ramlal v. State of H.P. (2007 (3) Crimes 451 (HP)).

31. In the case in hand, Ex.P22, does not give any percentage of resin in the contents. At the same time, Ex.P22 reveals that simple contained in packets A and D are found to be of charas and packet B gives positive test for the presence of smack and when no percentage was given in the report, the fact which was taken care of in the above cited cases are not available to the present appellants and looking to the gravity of the offence, there is no need to interfere in the sentence awarded to the present appellants.

32. Hence, looking at the above, there is no force in the appeal and the same is hereby dismissed.

Appeal dismissed.