P.K Bahri, J.:— The appellant, who has been convicted for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) for being found in possession of 2,500 kgs of opium on November 13, 1986, at about 4.40 P.M at Chowk Barafkhana, Subzi Mandi, vide judgment dated November 20, 1987 and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000 (one lakh) as per subsequent order dated November 21, 1987, by Shri Jaspal Singh, Additional Sessions Judge, Delhi, has come up in appeal challenging his conviction and sentence.

2. SI Ved Parkash, when posted at Police Station Subzi Mandi, was patrolling the area accompanied by Constable Onkar Singh (PW2), Constable Jai Parkash and Constable Bhagirath had reached Indira Market at about 4.30 P.M he is stated to have received a secret information to the effect that one person in possession of opium would be coming from the side of Mori Gate and would be proceeding towards Barafkhana Chowk and that he proceeded to the spot after his efforts to join certain passers-by resulted in getting help of one public witness Inderjit Singh (PW4) and at about 4.40 P.M the appellant was nabbed on being pointed out by the secret informer. The appellant was stated to be carrying a rexine bag Ex. P2 and he was apprised of his right to get his search done in presence of a gazetted officer or the Metropolitan Magistrate. On his declining, the appellant was searched and the bag was found to contain opium wrapped in polythene paper and at that moment the S.H.O of the Police Station (PW1) also stated to have arrived at the spot and in his presence the opium was weighed and a sample of 50 gms was taken out and the sample and the remaining opium were converted into two separate sealed parcels and the seal of the S.H.O was used which seal was handed over to Inderjit Singh. The case property was taken into possession vide seizure memo. Ex. PW1.A. The Rukka Ex. PW5.A was prepared and sent to the Police Station through Constable Onkar Singh and the case; was registered vide FIR, copy of which is Ex. PW3.A. The site plan of the spot was prepared which is Ex. PW5.B and necessary CFSL form containing the sample seal was duly filled in and later on the case property and the sample were duly deposited in Malkhana and on November 18, 1986, the sample was sent through Constable Onkar Singh to CFSL and the report of the CFSL Ex. PA showed that the contents of the said sample were opium.

3. The prosecution case is duly supported by PW1 S.H.O, PW2 Onkar Singh Constable and PW4 Inderjit Singh, public witness and PW5 the Investigating Officer. Nothing came out from their cross-examination to show that the case of the prosecution is in any manner doubtful. No suggestion was given to PW1 as to why the appellant has been implicated in this case if the case is not true. Only bald suggestions have been given in the cross-examination that the S.H.O was not present at the spot and he had not signed the seizure memo at the spot which suggestions, of course, have been denied by the S.H.O It is pertinent to mention that Inderjit Singh, who is a public witness, was not shown to be in any way interested in the police so as to falsely implicate the appellant in this case. He categorically deposed in cross-examination that he had never been a police witness in any other case. The Additional Sessions Judge, in my opinion, rightly relied on statements of these prosecution witnesses in arriving at the conclusion that the said recovery was duty effected from the appellant. As a matter of fact, counsel for the appellant has not challenged the finding of the Additional Sessions Judge on merits. Counsel for the appellant has, however, vehemently argued that the mandatory provisions of NDPS Act have not been complied with and thus, the conviction of the appellant is vitiated on that score.

4. Mr. K. B. Andley, counsel for the appellant, has drawn my attention to section 55 of the ndps act which runs as follows:

“An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.”

He has argued that in the present case only the seal of S.H.O is stated to have been affixed whereas the law requires that the seal of both the Investigating Officer as well as S.H.O ought to have been affixed on the case property as well as sample. He has cited Peter Robertson Cowan v. State 31 (1987) Delhi Law Times 305(1), in support of his contention. I have gone through this judgment and find that the facts if the said case were some what distinguishable. What happened in the said case was that the evidence was led by the prosecution to show that at the time of seizure the case property was sealed with the seal of Investigating Officer as well as the seal of S.H.O but there appeared a discrepancy in the case of the prosecution which showed that the sample which was taken to CFSL contained only the seal of the Investigating Officer and there was no evidence that the sample had the seal of the S.H.O So in view of the said discrepancy the court held that the mandatory provision contained in section 55 of the ndps act has not been complied with. It has not been laid down as a matter of law that section 55 of the ndps act contemplates fixation of seals of Investigating Officer as well on the case property. The S.H.O in the present case was present at the spot when the case property was converted into sealed parcels and seal of the S.H.O was used. The requirement of section 55 of the ndps act is that the case property should be sealed with the seal of S.H.O and the sample may be taken in the presence of the S.H.O and these requirements in the present case have been complied with. So, it cannot be held that the prosecution case suffers from any legal infirmity in this regard.

5. Counsel for the appellant also argued that the S.H.O is stated to have left the spot after the case property had been sealed and seal had been given to Inderjit Singh and there is possibility that the seal might have been misused by tampering with the case property in the absence of the S.H.O I do not see that any such inference can be drawn on the mere fact that the S.H.O had left the spot after the case property had been sealed. After all Inderjit Singh is an independent public witness and seal had been handed over to him and so, there is no reason why Inderjit Singh would have allowed the seal to be misused by the Investigating Officer even after the S.H.O had departed the scene. No such questions have been put to the prosecution witnesses in this regard.

6. The learned counsel for the appellant has then submitted that there is no evidence that the sample, which was examined by the expert of the CFSL, was the same which was seized from the appellant. He has argued that there is no evidence led by the prosecution to show that any sample seal had been sent alongwith the sample to the CFSL to enable the expert to tally the sample seal with the seal appearing on the sample. The prosecution has examined the Moharir Malkhana of the Police Station (PW6) who deposed that as long the case property and the sample remained in Malkhana no one tampered with the samples and seal also remained intact and he had handed over the sample to Constable Onkar Singh for being delivered at CFSL and Constable Onkar Singh (PW2) also made a statement that he took duly sealed sample of this case and delivered the same intact at the CFSL. The entries from the Malkhana register, copy of which is Ex. PW6.A, were also proved indicating these facts. So, it cannot be argued that the proper sample was not sent to CFSL. It is a matter of common knowledge that alongwith the sample the CFSL form filled in by the Investigating Officer is also sent and that form always contains the sample seal. The report of the CFSL shows that the sample which was examined had its seal intact and tallied with the specimen seal.

7. Under section 293 of the Code of Criminal Procedure not only the opinion of the expert with regard to the percentage of morphine to the extent of 4.95 found in the contents of the sample and thus treating the same as opium is to be taken as correct but also the contents of this document showing that the parcel having the seal impression as per specimen enclosed intact have to be also taken as correct. I may refer to a Division Bench judgment of the Punjab and Haryana High Court in this respect in Bhagwan Dass v. State of Punjab, 1982 Crl. L.J 2138(2), in which it was clearly laid down that section 293 of the Code of Criminal Procedure renders admissible the report of the Chemical Extminer as a whole including the averments with regard to the condition of the sample and the seals thereon and the manner of its receipt. Analysing the provisions of section 293 of the Code of Criminal Procedure it was observed that again the significant words in section 293 of the code seem to be “upon any matter or thing duly submitted to him for examination or analysis” and the words “duly submitted” include within their ambit the mode and manner of the submission of the sample and its receipt by the Scientific Expert and it was held that consequently, the report with regard to the manner of the submission of the sample for examination and its condition would come squarely within the scope of section 293 of the Code of Criminal Procedure.

8. Counsel for the appellant has drawn my attention to Gopal v. State of Rajasthan, 1988(3) Crimes 485 (3) which is a judgment by Single Bench of that High Court. In the cited case, it was found that the specimen seal containing only one word ‘Ajmer’ was legible which was written in English language and the report of Chemical Examiner mentioned that the seals on the packets were intact but report did not say that seal as per specimen had tallied. So, keeping in view these distinguishing features the Rajasthan High Court had held that it was not proved that the sample which was sent for examination to the Chemical Expert was the same which had been seized from the culprit. In that context it was held in this judgment that as the forwarding letter containing the sample seal had not been produced, it cannot be held that the sample analysed by Chemical Examiner had not been tampered with. This judgment is distinguishable on facts. Even if anything contrary to what has been laid down by the Division Bench of Punjab and Haryana High Court has been opined, in my view the said opinion would not be the correct view in view of the clear provisions of section 293 of the Code of Criminal Procedure. I agree with the reasoning given in the judgment of the Punjab and Haryana High Court referred to above and hold that all the contents of the document Ex. PA, the report of the Expert of CFSL, have to be treated as correct and in case the appellant wanted to challenge the said report the appellant had ample opportunity before the trial Court to make an application so that the Expert could be called as a witness with the record for purposes of cross-examination to enable the appellant to show that the sample, which was received,by the Expert, was not the sample of this case. As the appellant had not availed of such opportunity he cannot be allowed to urge in appeal for the first time that the sample analysed by the Expert of CFSL was not the same sample and there was any possibility of that sample being tampered with. I, hence, find no merit in this contention of the learned counsel for the appellant.

9. Counsel for the appellant has then argued that provisions of Section 42 of the NDPS Act have not been complied with inasmuch as the secret information received by the SI Ved Parkash was not reduced into writing. One must not forget that in the present case the secret information was received by the Investigating Officer at about 4.30 P.M and at 4.40 P.M the appellant was apprehended. SI Ved Parkash would not have wasted his time in doing the writing work during that short period available to him and allowing the suspect to go away from the spot. There was some sort of urgency depicted in the facts which shows that the SI who received the secret information had to immediately make arrangement for apprehending the appellant. So, even if it can be held that there has been some lapse in not reducing the secret information in writing, that, in my opinion, does not vitiate the recovery effected from the appellant. It has been held by the Supreme Court in Radha Kishan v. State Of Uttar Pradesh . AIR 1963 SC 822(4).

“It may be that where the provisions of Sections 103 and 105, Criminal Procedure Code are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues, and the seizure of the articles is not vitiated.”

In Kamalabai Jethamal v. State Of Maharashtra., AIR 1962 SC 1189(5), the Supreme Court held:

“It may be that the search was contrary to the spirit or even the letter of the Criminal Procedure Code but the fact remains that the High Court has accepted that there was a search and a hundred rupees currency note was recovered and even if the recovery of a hundred rupees currency note were held not proved, the payment of that amount will not thereby become unproved if there is evidence which the High Court has accepted.”

It has been held by the Supreme Court in Khandu Sonu Dhobi & Another v. The State of Maharashtra, AIR 1972 SC 1958 (6).

“It is well established that where cognizance of a case has, in fact, been taken by the court on a police report following investigation conducted in breach of provisions of Section 5A of the Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. The underlying reason for the above dictum is that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court to try the accused.”

So, it is clear that even if certain statutory provisions are not complied with before effecting any seizure, the seizure does not become invalid on that score alone.

10. Counsel for the appellant has cited Hakam Singh v. Union Territory, Chandigarh, 1988 Crl. LJ. 528(7) in which it was held that if mandatory provisions of the NDPS Act are not complied with, then the charge against the appellant must fail. It is not possible, in my opinion, to agree with this broad proposition of law laid down in this judgment. The court must consider the facts of each case in order to determine whether failure of prosecution to comply with any particular provision of NDPS Act has the effect of creating any doubt regarding the prosecution case or not? There cannot be any mechanical application of law to the facts of the case. The salutary provisions introduced into the ndps act contained in sections 41 to 55 are not to be obviously ignored by the courts or by the prosecution but these provisions have to be kept in view only to see whether the prosecution case set up is truthful or not or there arises any doubt in respect of the prosecution case for non-compliance of any of the provisions of NDPS Act. In the present case, as discussed above, no such doubt, in my opinion, can be raised regarding the prosecution case which stands established against the appellant on merits from all points of view. So, I hold that there is no merit in this appeal. No other point has been urged before me.

11. I confirm the conviction and sentences of the appellant and dismiss this appeal.

M.B.L. Appeal Dismissed.