Mr. Sushil Sharma, Advocate for the Union of India through the Inspector, Central Narcotics Bureau, Jaipur.

Narendra Kumar Jain, J.—This appeal under Sec. 374(2) of the Code of Criminal Procedure, on behalf of accused Saleem Mohammed S/o Ramjan Mohammed, is directed against the judgment and order dt. 04.04.2006 passed by the Special Judge (Sessions Judge), N.D.P.S. Act Cases, Bharatpur, in Special Case No. 36/2001, whereby the learned trial Court convicted and sentenced the accused-appellant under Sec. 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter shall be referred to as ‘the Act’) to ten years rigorous imprisonment and a fine of rupees one lakh; in default of payment of fine, to further undergo ten months simple imprisonment.

2. The charge against the appellant was that on 04.11.2000 at 6.30 P.M., during his search at the Central Bus Stand, Bharatpur, two kilogram charas was recovered from his possession, which is punishable under Sec. 8/20 of the Act. The prosecution examined six witnesses and exhibited 22 documents. Thereafter statement of the accused was recorded under Sec. 313, CrPC, wherein he stated of his false implication in the present case. No evidence was adduced on behalf of the accused.

3. The learned trial Court, after considering the oral and documentary evidence on the record and the submissions of both· the parties, convicted and sentenced the accused-appellant, as mentioned above.

4. The learned counsel for the appellant raised three-fold contentions.

5. The first contention is that there is violation of sub-sec. (2) of Sec. 42 of the Act, as in the present matter the information recorded under sub-Sec. (1) of Sec. 42 was not forwarded by concerned officer to his immediate official superior and this provision, being mandatory in nature, the entire proceedings are liable to be quashed.

6. The second contention is that two samples of 25 grams each of contraband were taken and seized where the weight of sample reached at laboratory was 17 grams, therefore, there is variance in the quantity of sample which was taken and sealed and the quantity of sample which was received at the Forensic Science Laboratory (for short, ‘the FSL’) and this variance creates doubt that the sample which was seized and sent was really received by FSL and the accused is entitled to the benefit of this doubt.

7. The third contention is that the sample was taken on 04.10.2000, and the same was sealed immediately at Bharatpur but the same was not sent to the FSL for analysis till 06.10.2000, which creates serious doubt on the prosecution case and further that the seal, which was used in the present case, was handed-over to PW 4 Ajay Kumar, vide Ex. P-13, but Ajay Kumar, during the course of his examination, did not support the prosecution case and stated that his signatures were obtained on blank papers and no such seal was given to him, therefore, the prosecution has failed to prove the guilt against the appellant beyond reasonable doubt and the learned trial Court has committed a serious illegality in convicting and sentencing the accused-appellant.

8. In support of the contentions, the learned counsel for the appellant referred the decisions in the following cases :-

1. Mr. Raju Minimum S/o Heera Lal vs. State of Rajasthan, 2006 (3) WLC (Raj.) 392;

2. Rajesh Jagdamba Avasthi vs. State of Goa, (2005) 9 SCC 773;

3. Riyaz Mohammed @ Pappu vs. State of Rajasthan, 2001 (1) RCC 326;

4. State of Rajasthan vs. Gurmail Singh, AIR 2005 SC 1578.

9. Learned counsel appearing on behalf of the Union of India contended that all the submissions made on behalf of the accused- appellant are not tenable in the eye of law. He supported the judgment and order passed by the learned trial Court. In support of his contentions, the learned counsel for the respondent UOI relied upon the decisions in the following cases:

1. G. Srinivas Gaud vs. State of Andhra Pradesh, 2005 (6) Supreme 623;

2. Shanker Lal & Parthu vs. State of Rajasthan, 2002 (1

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