JUDGMENT Per Deepak Gupta, J 1. This appeal by the Narcotics Control Bureau is directed against the judgment dated 30.6.2003 delivered by the learned Sessions Judge, Shimla in Session Trial No. 7-5/2002 of 2001, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2. The prosecution story briefly stated is that on 18.6.2001 PW-4 R.P. Singh was working as Intelligence Officer in the Narcotics Control Bureau (NCB), Chandigarh. He along with PW-3 O.P. Bhatt and other officials had gone towards Theog from Shimla. They left Shimla at about 10.00 p.m. They reached a dhabha near the Nangala Devi Temple at about 10.00/10.30 p.m. They stopped at the dhabha to have meals. They then ordered meals and tea. While they were waiting for the food to be served PW-4 R.P. Singh could smell the odour of charas. PW-4 had consultation with his colleagues who were present there. In the meantime PW-1 Rakesh Goyal, Zonal Director, NCB, Chandigarh who had also left Shimla at about 9.30 p.m. in a different vehicle reached the dhabha. They then questioned the accused about this smell of charas and he became nervous. This increased the suspicion of the NCB officials. On asking, the owner of the dhabha disclosed his name to be Jeet Ram and when he was further questioned Jeet Ram (accused) tried to run away. 3. The accused was apprehended there and then. He was taken to the counter of the dhabha. Just below the counter there was one gunny bag. The accused was asked what was in the gunny bag. He replied that there is nothing in it, but he appeared to be nervous. Then notice under Section 50 of the NDPS Act was given to the accused. He consented to be searched by the NCB officials. According to the NCB officials the dhabha was situated at a lonely place and therefore, no independent witnesses could be associated. In the dhabha there were three servants Pappu son of Shri Panchi Ram, resident of Bhadgarh, Tuini, Uttaranchal, Suresh Kumar son of Shri Durga Singh and Attar Singh son of Shri Sadh Ram, both residents of Theog. They were asked to join the investigation as witnesses but refused to do so. In the dhabha there were three servants Pappu son of Shri Panchi Ram, resident of Bhadgarh, Tuini, Uttaranchal, Suresh Kumar son of Shri Durga Singh and Attar Singh son of Shri Sadh Ram, both residents of Theog. They were asked to join the investigation as witnesses but refused to do so. Thereafter the bag was searched and 13 Kgs of charas was found in it. The charas was divided into two portions of 6½ Kgs each and two packets were made which were marked as X and Y, respectively. From each of these two packets, two samples each of 25 gms were drawn. The samples drawn from the packet Mark X were marked as X1 and X2 and the samples drawn from the packet Mark Y were marked as Y1 and Y2. Thereafter, all the four samples were sealed in a polythene bag by heat sealing process. They were then put in paper envelopes and sealed with paper seals, signed by the NCB officials as well as accused Jeet Ram. On each sample, seal No.6 of NCB was affixed on all the four corners. Thereafter the bulk charas in packets X and Y was sealed in paper parcels with six seals each. All the samples and parcels were signed by the NCB officials and the accused. The seals were handed over to PW-1. Thereafter the statement of accused Jeet Ram was recorded under Section 67 of the Act in which he admitted that for various reasons he was indulged in the trade of charas to increase his income. Thereafter Panchnama was prepared at the spot. A test memo was prepared and the contraband was seized. The Panchnama was also signed by accused Jeet Ram. The accused was formally arrested on 19.6.2001. Two of the samples X1 and Y1 with letter Ext. PS were sent through PW-2 Hayat Singh to the Chemical Analyst for analysis, who vide his report Ext. PH opined that both the samples were of charas. On this basis the accused was charged and challaned with having committed the offence aforesaid. 4. The prosecution examined four witnesses. All of whom are officials of the NCB. The accused in his statement under Section 313 Cr. P.C. took a defence where he stated that neither the dhabha nor the case property belonged to him. His defence was as follows:- “They have deposed falsely. 4. The prosecution examined four witnesses. All of whom are officials of the NCB. The accused in his statement under Section 313 Cr. P.C. took a defence where he stated that neither the dhabha nor the case property belonged to him. His defence was as follows:- “They have deposed falsely. Neither the Dhaba nor the case property belong to me. The case property was seized when it was being kept in vehicle No. 993 DL 3 CD which was being parked in front of the Temple of Nangala Devi at about 10 O’ clock in the night of Monday 18.6.2001. In that vehicle, Singh and one Sardar were sitting. Mantu resident of Balson owner of vehicle No. 993 was also present in front of the Temple. When I was standing near the said Temple, a Gypsy came from the side of Shima. 2-3 persons alighted from that vehicle. Again said two persons were sitting in the Gypsy. One of the said persons took out a Revolver. Shri Brijlal of Village Tikkar was also sitting in vehicle No. 993 from whom again said Singh and Bhatt were also sitting in that vehicle. They had told (Tikkar Se Mall Khareed Key Lai). In fact, I was asked to indicate the location of village Tikkar by Mr. Singh. I indicated the direction of village Tikkar to him towards the peak of the hill. He offered me to pay Rs.500/-in case I accompanied him to village Tikkar. In order to satisfy the greed of mine, I accompanied him. I took them to the house of Brijlal in village Tikkar. Said Mantu also accompanied me. Mantu struck bargain with Brijlal. Fifteen Kilograms of Mall was purchased by Singh and Bhatt. They told Brijlal that their vehicle was standing on the road side and that they will pay the amount of consideration after reaching the road side. As and when those people came near the vehicle they boarded the same and I also proceeded on foot towards the Temple of Nangala Devi. Thereafter Brijlal ran away. After reaching the Temple of Nangala Devi, the said persons, namely, Singh and Bhatt also compelled Mantu to ran away and thereafter I was apprehended and taken to police Station, Theog. After taking me to Police Station, Theog, I was again taken to village Tikkar to the house of Brijlal. Thereafter Brijlal ran away. After reaching the Temple of Nangala Devi, the said persons, namely, Singh and Bhatt also compelled Mantu to ran away and thereafter I was apprehended and taken to police Station, Theog. After taking me to Police Station, Theog, I was again taken to village Tikkar to the house of Brijlal. None was present in the house of Brijlal at that time. The house was locked. Thereafter said officer asked me to disclose the name of the father of Bri9j lal which I pointed out. I was taken to that house. From the house of Brijlal, one Buria came out. Thereafter I was taken to the fields and the police officials entered the house of said Buria. Buria was seen by me for the first time on that day and came to know that her name is Sodha Devi. Thereafter again I was brought to Police Station and was placed under arrest. On the next day, at 5 O’ clock in the evening of 19.6.2001, I was implicated in the case and at about 9 O’ clock in the night I was produced before the Magistrate at his residence. I was again taken to Police Station where I was arrested. Again on 20.6.2001, I was taken to the said court at Theog. After producing me in the Court, I was taken to the guard room where my statement was recorded regarding the particulars of the members of my family. I was again arrested by the police. It is a false case.” 5. The accused also examined as many as eight witnesses in support of his aforesaid defence. After producing me in the Court, I was taken to the guard room where my statement was recorded regarding the particulars of the members of my family. I was again arrested by the police. It is a false case.” 5. The accused also examined as many as eight witnesses in support of his aforesaid defence. The learned trial Court acquitted the accused on the following grounds:- i) That the prosecution case was not supported by any independent witness; ii) that the prosecution has failed to prove that the charas was recovered from the dhabha of the accused or was found in the possession of the accused; iii) that there was non compliance of the provisions of Section 50 of the NDPS Act; iv) that the seal with which the samples and remaining bulk of charas was sealed was handed over to PW-1 Rakesh Goel who himself gave the sample to PW-2 for taken to the Central Laboratory at Delhi and since these seals remained with the Director the chances of tampering could not be ruled out; and v) that the prosecution case was unnatural and improbable. 6. At the outset, we may state that as far as the third ground is concerned, the same is without any force because the Apex Court in State of Himachal Pradesh vs. Pawan Kumar Latest HLJ 2004(SC) 1247 has clearly laid down that Section 50 of the Act is applicable only in a case of personal search and here the recovery was made from a gunny bag lying in the dhabha and no recovery was made on the personal search of the accused. 7. We have heard Mr. Ashwani Pathak, learned counsel for the appellant and Mr. D.P. Chauhan, learned counsel for the accused. Mr. Ashwani Pathak, Advocate submits that the prosecution story is completely true. According to him there are no inconsistencies in the prosecution version and he also submits that the prosecution has proved its version to the hilt and the accused has been acquitted on surmises and conjectures. 8. On the other hand, Mr. D.P. Chauhan, Advocate, has supported the judgment of the learned trial court and further submits that the accused was not the owner of dhabha and that the version of the defence of the accused is a plausible defence. 8. On the other hand, Mr. D.P. Chauhan, Advocate, has supported the judgment of the learned trial court and further submits that the accused was not the owner of dhabha and that the version of the defence of the accused is a plausible defence. He further submits that even if his defence is not totally true, it is for the prosecution to prove that the charas was recovered from the exclusive possession of the accused and since the charas was lying on a counter in a dhabha where a number of people were present there can be no presumption that the charas belongs to the accused alone and did not belong to anybody else. 9. The law by now is well settled that it is not necessary in every case that independent witnesses must be associated. True it is, that an effort should be made to associate independent witnesses but there can be times and circumstances when independent witnesses are not present. From the evidence on record, which we shall discuss hereinafter, it is more than apparent that the dhabha was situated near Nangala Devi Temple and there were no houses in the close vicinity. The search operation started some time after 10.30 p.m. and continued till 3.30 a.m. in the wee hours of the morning. In such circumstances the absence of independent witnesses is not fatal to the prosecution case. 10. The learned trial court while acquitting the accused laid great emphasis on the fact that Suresh Kumar and Attar Singh who were working as servants in the dhabha of accused and one Pappu who was also working in his dhabha were not associated as witnesses. Suresh Kumar and Attar Singh appeared as defence witnesses and it is proved that they are closely related to the accused. Even Pappu was employed by the accused or at least his wife and in that sense could not be said to be an independent witness. Furthermore, according to the prosecution these people refused to associate themselves with the prosecution case and this appears to be true because they were the employees of the accused or his wife at least and they would definitely not like to be a part of the investigation against their employer. Furthermore, according to the prosecution these people refused to associate themselves with the prosecution case and this appears to be true because they were the employees of the accused or his wife at least and they would definitely not like to be a part of the investigation against their employer. Having said so, when there are no independent witnesses, the statements of the official witnesses must he scrutinized with greater care and caution and if there are inconsistencies in the prosecution story then the benefit will have to be given to the accused. 11. Coming to the evidence of the prosecution, PW-4 R.P. Singh virtually repeated what is the prosecution case. According to him he accompanied by PW-3 O.P. Bhatt, Jagmohan Hudda and other police officials left Shimla and proceeded towards Theog. The Zonal Director PW-1 also proceeded towards Theog in a different vehicle. They reached the dhabha near Nangala Devi Temple after 10.00 p.m. and placed orders for meals and tea. When PW-4 was crossing by the side of the counter at the dhabha, he could smell the odour of charas. In the meantime PW-1 also came to dhabha. PW-4 consulted his colleagues and the accused, who was present in the dhabha at the relevant time, was asked who was the owner of the dhabha. According to PW-4 the accused stated that he was the owner of the dhabha. The accused was asked why there was smell of charas in the dhabha. The accused got nervous and tried to run away but he was apprehended and interrogated. Then the Zonal Director arrived at the spot, who was informed that it was suspected that charas was kept in the dhabha in writing Ext PA. On this endorsement Ext. PA/1 was made by PW-1, who issued the authorization letter Ext. PB on the spot itself. The signatures of the accused were obtained on Ext. PB. He was given notice under Section 50 of the NDPS Act Ext. PC. The accused agreed to be searched by the NCB officials in his own handwriting Ext. PC/1. When the gunny bag kept below the counter was checked and the accused was asked what was in the same, he replied ‘kuch nahi Kuch nahi’. On opening the bag it was found to contain charas which on weighment was found to weigh 13 Kgs. PC/1. When the gunny bag kept below the counter was checked and the accused was asked what was in the same, he replied ‘kuch nahi Kuch nahi’. On opening the bag it was found to contain charas which on weighment was found to weigh 13 Kgs. Thereafter, the same was divided in two portions and sealed as detailed hereinabove. The signatures of the accused and the Zonal Director were obtained on all the samples and parcels. Thereafter panchnama Ext. PD was prepared and signed by the accused and the Zonal Director. Test memo Ext. PF was prepared in triplicate. Thereafter, the case property was seized vide seizure memo Ext. PJ and the accused was served with notice under Section 67 of the NDPS Act and his statement Ext. PK was recorded. The accused was arrested at 10.40 am on 19.6.2001 and the information about his arrest was given to Suresh Kumar. On 19.6.2001 the accused was produced before the Illaqua Magistrate, Theog. The case property and all the documents were produced before the Magistrate, who appended his signatures on all the pages of the panchnama Ext. PD. Therefore, it is apparent that the panchnama had been prepared on 19.6.2001 itself. The accused as well as the case property were produced before the Magistrate. The Magistrate also appended his signatures on the papers pasted on the parcels of the case property. The samples were also signed by the Judicial Magistrate. One sample of each of the parcels was sent for chemical analysis through PW-2 Hayat Singh. The order, which was passed by the Judicial Magistrate is Ext. PV and reads as follows:- “By way of present application a prayer has been made for 14 days of police custody in view of the fact and circumstances of the case, accused Jeet Ram is remanded to custody of NCB for 3 days i.e., till 21.6.2001 on which date they be produced for further necessary order. Two packets duly sealed with seal impression NCB-06 produced. Lot ‘Y’ contains seven seals which are intact. Lot ‘Y’ contains six seals and same are also intact. 4 sample packets each containing 4 seals on it are also produced. Seal impression thereon is NCB-06 and the same are also intact and have been countersigned by me. Panchnama prepared consisting of 4 sheets has been countersigned and returned to the intelligence officer. Packets produced also returned to intelligence officer. 4 sample packets each containing 4 seals on it are also produced. Seal impression thereon is NCB-06 and the same are also intact and have been countersigned by me. Panchnama prepared consisting of 4 sheets has been countersigned and returned to the intelligence officer. Packets produced also returned to intelligence officer. Papers be put up on 21.6.2001 for further necessary orders.” 12. This clearly shows that the Judicial Magistrate had affixed his seals on the packets as well as the four samples. Thereafter, the remaining case property appears to have been kept in the Malkhana of Police Station, Theog. 13. In cross-examination, this witness stated that PW-1 reached the dhabha within 20-25 minutes of his reaching the dhabha. According to him the counter was made of stones and the gunny bag was kept behind the counter and was not placed on top of the counter. A suggestion put to this witness that he and O.P. Bhatt made offerings to the temple where the accused was working as a Pujari. He denied the suggestion that they asked the accused to take them to village Tikkar to the house of Brijlal and offered him Rs.500/- for this purpose. A suggestion was also put to this witness which he denied that one Mantu was the driver of the vehicle bearing No. DLC 993 parked outside the dhabha or that the said vehicle remained parked outside police Station, Theog for 2-3 days after the said recovery. A suggestion put to this witness is that 15 Kgs of charas was purchased by this witness from Brijlal where after Brijlal was brought to the spot near the dhabha where the vehicles were parked and Brijlal was assured that the cost of the charas would be paid to him. He also denied the suggestion that when Brijlal demanded money for the contraband, he was threatened at pistol point and ran away. He also denied the suggestion that Mantu was handed 2 Kgs of charas to keep him quiet. He denied the suggestion that 15 Kgs of charas was kept in the vehicle parked on the Highway near the Nangala Devi Temple. He denied the suggestion that the accused has been implicated falsely. Another suggestion which has been put to this witness is that reward and promotions are given to affect such recovery and therefore, a false case was made out against the accused. He denied the suggestion that the accused has been implicated falsely. Another suggestion which has been put to this witness is that reward and promotions are given to affect such recovery and therefore, a false case was made out against the accused. It would be pertinent to mention that this witness has not been cross-examined at all with regard to the sealing process, sending of the samples to the laboratory etc. and the entire cross-examination is that the accused was falsely implicated though the presence of the accused is not denied. 14. The version of PW-3 O.P. Bhatt is virtually identical to that of PW-4. According to him when PW-4 went towards the counter of dhabha to find out when the meals were going to be served, he smelt the odour of charas and came back and informed PW-3 that he could smell charas. They were discussing this matter and after some time PW-1 also reached the dhabha. The other statement of this witness in examination-in-chief is virtually identical. This witness has also stated that the accused had informed that he had purchased the contraband from one Soda Devi and then they all proceeded to the house of Soda Devi in village Tikkar. In cross-examination he stated that he reached village Tikkar at about 4.00 a.m. and returned from there about 8.30/9.00 a.m. His version is that PW-1 Zonal Director proceeded towards Police Station, Theog and some members of the party proceeded towards village Tikkar. He also stated that the accused was examined under Section 67 of the Act. Another suggestion put to him is that the accused has been falsely implicated. To this witness a suggestion was also put that the dhabha was being managed by the wife of the accused with the help and assistance of the servants. 15. PW-1 Rakesh Goyal was at that time Director of NCB Department. According to him, they wanted to set up a naka in the area of Theog since they had information that there was some narcotic trafficking going on in that area. In his vehicle the other two officials were PW-2 Hayat Singh and one sepoy-cum-driver Param Jeet. His version is that the other party of NCB officials comprising of R.P. Singh, O.P. Bhatt and Jagmohan Hudda etc. had proceeded prior to him towards Theog. In his vehicle the other two officials were PW-2 Hayat Singh and one sepoy-cum-driver Param Jeet. His version is that the other party of NCB officials comprising of R.P. Singh, O.P. Bhatt and Jagmohan Hudda etc. had proceeded prior to him towards Theog. When this witness was going towards Theog he saw the vehicle of R.P. Singh parked near the Nangala Devi Temple in front of the dhabha. He also got down and went to the dhabha. PW4 R.P. Singh informed him that he could smell charas and gave him information in this regard in writing vide Ext. PA. The witness has put his endorsement Ext.PA/1. He also authorized the NCB officials to search the dhabha vide authorization letter Ext. PB. The accused also signed the said letter. After following the procedure prescribed under Section 50 of the Act, the search was conducted. The servants of the accused, who were present in the dhabha, refused to stand witnesses and there was nobody else near the dhabha who could be associated with the search. On search, 13 Kgs of charas was recovered and thereafter the same was divided, samples drawn and thereafter the samples and the remaining bulk charas were sealed. The accused intimated that he had purchased the charas from one person of village Tikkar and thereafter he was taken to village Tikkar and then the other police officials returned with the accused and the accused was placed under arrest. This witness also informed his superior officer, namely, Deputy Director General, NCB, New Delhi vide memo Ext. PR about the entire occurrence. He also stated that PW-2 Hayat Singh was deputed with two samples X1 and Y1 which was taken to the Laboratory at Delhi. For two days the remaining case property was kept at Theog and on 22.6.2001, these parcels were brought to Chandigarh and kept in the Malkhana of NCB vide receipt Ext. PU. 16. We have already extracted the defence of the accused which he has given in great detail in his statement recorded under Section 313 Cr. P.C. DW-1 Suresh Kumar is one of the servants working in the dhabha. His version is that the dhabha is owned by Kaushalya Devi, wife of the accused. According to him the dhabha was closed at about 11.00 p.m. on 18.6.2001 and no contraband was recovered from that dhabha. P.C. DW-1 Suresh Kumar is one of the servants working in the dhabha. His version is that the dhabha is owned by Kaushalya Devi, wife of the accused. According to him the dhabha was closed at about 11.00 p.m. on 18.6.2001 and no contraband was recovered from that dhabha. Next day, the police came to the dhabha and took him to Theog where the accused had been detained. His version is that the accused is a Pujari in the temple and also works as Chowkidar of the Panchayat. He sleeps in the temple and goes home occasionally. In cross-examination this witness stated that the accused is not related to him. He also stated that Attar Singh, who is the other servant in the dhabha, is also not related to the accused. The distance between the Nangala Devi Temple and the dhabha was 25-30 paces. He denied the suggestion that his father Durga Singh was the real brother of the accused. The learned trial Judge recorded the demeanour of the witness and noted that it appears that the witness was suppressing the truth since he was not able to face the Court while answering the questions. According to this witness, Kaushalya used to leave the dhabha at about 8.00 p.m. and used to sit there during the day time. He stated that the dhabha was closed by him and Attar Singh, who slept for the night in the dhabha. In cross-examination he stated that when he was picked up from the dhabha next morning Kaushalya Devi wife of the accused had still not arrived at the dhabha. According to him, Jeet Ram used to leave the temple during the evening or the night hours. He denied the suggestion that the NCB officials had come to the spot and made the recovery. He also denied the suggestion that Attar Singh and Pappu refused to stand as witnesses to the said recovery. He also denied the suggestion that the NCB officials informed him about the arrest of Jeet Ram vide Memo Ext. PN, but admitted that the said document bears his signatures. He admitted that the shops which are near to dhabha are closed at about 6.00 or 7.00 p.m. and that the houses are at the distance of half a kilometer from the dhabha. 17. Attar Singh appeared as DW-3. PN, but admitted that the said document bears his signatures. He admitted that the shops which are near to dhabha are closed at about 6.00 or 7.00 p.m. and that the houses are at the distance of half a kilometer from the dhabha. 17. Attar Singh appeared as DW-3. He was also employed in the dhabha and he also denied that any police officials came to the dhabha or made any recovery on the night intervening 18th and 19th June, 2001. Though DW-1 had denied that he was related to Attar Singh or the accused, but this witness in cross-examination has admitted that DW-1 Suresh Kumar was his cousin. He also admitted that Durga Singh, father of Suresh Kumar and his father Sadh Ram and accused Jeet Ram are all real brothers and the accused was the younger brother of his father. It is thus apparent that Attar Singh and Suresh Kumar are the nephews of the accused. The version of this witness is that the dhabha started functioning only 15-20 days prior to the arrest of the accused. According to him also the dhabha was owned by Kaushalya and not by accused Jeet Ram. His statement is totally contrary to that of Attar Singh. Whereas according to Attar Singh Kaushalya was not present after 8.00 p.m. on 18.6.2001, according to this witness Kaushalya slept in the dhabha on the night intervening 18.6.2001 and 19.6.2001. 18. DW-2 Pushpa Thakur stated that the accused worked as a Chowkidar of the Panchayat and also worked as a Pujari of the Nangala Devi Temple. According to her, Kaushalya, wife of the accused, was running the dhabha in question. She has also stated that villages Naleha, Deorighat and Jagheri are in the vicinity of Nangala Devi Temple and all these villages have houses. In cross-examination she stated that the Chowkidar is to be on duty for 10 days in a month. She also admitted that the villages she had named were at a walking distance of 10 minutes from the dhabha. Her version is that the dhabha was opened in the month of January or February 2001. 19. DW-4 Amar Singh runs a Forwarding Agency at Nangala Devi. He stated that there are two shops and one dhabha at Nangala Devi. He also has a house at Nangala Devi adjacent to the temple. Her version is that the dhabha was opened in the month of January or February 2001. 19. DW-4 Amar Singh runs a Forwarding Agency at Nangala Devi. He stated that there are two shops and one dhabha at Nangala Devi. He also has a house at Nangala Devi adjacent to the temple. According to him on 18.6.2001 he was present in his house but he did not come to know anything happening. He also stated that Jeet Ram worked as a Pujari. His version is that the dhabha is run by Kaushalya wife of Jeet Ram. In reply to a court question he stated that this dabah started functioning 5 to 6 months prior to the incident. He stated that on 18.6.2001 he and his family members had slept around 10.00 p.m. 20. DW-5 Gian Singh stated that he was a casual visitor to the dhabha. He had his meals in the said dhabha on 18.6.2001 at about 11.00 p.m. and nothing happened in his presence. In reply to a Court question, he stated that when he took meals on 18.6.2001 Kaushalya was present at the dhabha, which is totally contrary to the statement of Suresh Kumar DW-1. He states that he was regular visitor to the dhabha which had started functioning 3-4 years ago. This witness denied the suggestion that the dhabha only started functioning 5-6 months in January or February 2001. The trial court noted the demeanour of the witness and observed that the witness is not having courage to face the Court and is either suppressing the truth or making an imaginary statement. In cross-examination, this witness stated that the residential house of Jeet Ram is about 1 kilometer from the dhabha. 21. DW-6 Ram Singh Verma proved that the land on which the dhabha is being constructed is owned by Kaushalya and DW-7 was previous owner of the land who sold the land to Kaushalya. In cross-examination he stated that Kaushalya and Jeet Ram lived together. To the similar effect is the statement of DW-8. 22. Before dealing with the other contentions, we may at the outset state that no reliance can be placed on the statement of the accused allegedly recorded under Section 67 of the NDPS Act since the accused was in the custody of the police officials at that time and even though he may not have been formally arrested. 22. Before dealing with the other contentions, we may at the outset state that no reliance can be placed on the statement of the accused allegedly recorded under Section 67 of the NDPS Act since the accused was in the custody of the police officials at that time and even though he may not have been formally arrested. A Division Bench of this Court in Naveen Sood v. Narcotic Central Bureau, Chandigarh, 2010(1) Him, L.R. (DB) 298 held that no accused can be compelled to be a witness against himself and any such confession is irrelevant under Section 24 of the Indian Evidence Act. Following the aforesaid judgment, we are of the clear cut view that this statement cannot be relied by the prosecution. As pointed out earlier, there are no material contradictions in the prosecution story. 23. The learned trial Court, virtually non-suited the prosecution on the ground that no independent witnesses have been associated. From the evidence of the defence witnesses itself it is apparent that other than the house of DW-5 there is no other residential house in the vicinity of the area at least at a walking distance of 10-15 minutes. It would be too much to expect the police officials to try and get independent witnesses near mid night. Even DW5 states that he and his family members had slept by 10.00 p.m. which would mean that the lights in their house would be switched off and the police officials would not be aware that any person was available nearby. As far as the servants who are working in the dhabha are concerned, Suresh Kumar and Attar Singh were examined and they are proved to be total liars. They are closely related to the accused and could not be said to be independent witnesses. Pappu was the only other person present. He was neither a local resident nor a respectable person of the area and therefore, would not be an independent witness within the meaning of Section 100 Cr. P.C. Furthermore, how could a mere servant of the dhabha be expected to be a witness against his master. Therefore, we feel that too much emphasis has been laid by the learned trial Court on this aspect of the matter. P.C. Furthermore, how could a mere servant of the dhabha be expected to be a witness against his master. Therefore, we feel that too much emphasis has been laid by the learned trial Court on this aspect of the matter. As observed by us earlier, the non examination of independent witnesses would mean that we have to scrutinize the statements of prosecution witnesses with greater care and caution. 24. We are also surprised to note that the learned trial Court has come to the conclusion that prosecution version is not proved because two persons DW-1 and DW3 have controverted the statements of the police officials. The trial Court itself had noted the demeanour of these two witnesses and the statements of these two witnesses are nothing more than a tissue of lie. Surprisingly though the demeanour of the witness was noted when their testimony was recorded, the trial Court did not deem it fit to make reference of the demeanour of the witnesses while assessing their testimony. Therefore, the statements of the prosecution witnesses could not have been discarded only because of the statements made by DW-1 and DW-3 who apparently are liars. 25. The more important issue is the second issue as to whether the charas was recovered from the conscious and exclusive possession of the accused or not. Admittedly, the charas was lying below the counter of the dhabha in a gunny bag. It had not been hidden in any place. The learned trial Court has observed that none of the prosecution witnesses has stated that the accused was the owner of the dhabha. This observation is totally wrong because the prosecution witnesses especially PW-4 has stated that when the accused was questioned as to who was the owner of the dhabha he claimed to be the owner. No doubt, the dhabha has been constructed on the land which belongs to Kaushalya Devi but Kaushalya Devi is none else but the wife of the accused. The learned trial Court has also observed that Kaushalya Devi used to sleep in the dhabha at night time which fact also appears to be incorrect. 26. From the statements of the prosecution witnesses it is apparent that the accused was present in the dhabha. In fact the version of the accused in his statement under Section 313 Cr. The learned trial Court has also observed that Kaushalya Devi used to sleep in the dhabha at night time which fact also appears to be incorrect. 26. From the statements of the prosecution witnesses it is apparent that the accused was present in the dhabha. In fact the version of the accused in his statement under Section 313 Cr. P.C. is that about 10 O’ clock on the night of 18.6.2001 one vehicle was parked in front of the temple near the dhabha. According to the accused when he was standing near the dhabha a gypsy came from the side of Shimla and one of the occupants of the gypsy took out a revolver and one Mr. Singh asked the accused to take them to village Tikkar and they offered to pay him Rs.500/- in case he went with them to village Tikkar. He accompanied the police party to village Tikkar to the house of Brijlal and Mantu was also there. Therefore, the accused himself has specifically admitted that at about 10.00 p.m. on 18.6.2001 he was in the vicinity of the dhabha and the temple. This is totally contrary to the statements of the defence witnesses especially DW-1 and DW-3 according to whom the accused was no where near the dhabha and they had not seen the accused on 18.6.2001 at all. 27. True it is that the defence does not have to prove its case, but is required to show that the defence version is plausible. In the present case, the defence version is not at all plausible. The defence of the accused is that there was another vehicle bearing No. DL 3CD 993 parked in front of the temple in which vehicle one Singh and one Sardar was sitting along with Mantu, resident of Balson, who is said to be owner of the vehicle. Thereafter some people came in a gypsy and Brijlal of village Tikkar was also sitting in vehicle No.993 and these people said that they had purchased ‘mall’ at village Tikkar. Then Singh asked the accused to take them to village Tikkar on payment of Rs.500/-. Then he took them to the house of Brijlal. Mantu was also present. Then 15 Kgs of charas was purchased from Brijlal by Singh and Bhatt. They all returned to their vehicle and then Brijlal ran away. Then Singh asked the accused to take them to village Tikkar on payment of Rs.500/-. Then he took them to the house of Brijlal. Mantu was also present. Then 15 Kgs of charas was purchased from Brijlal by Singh and Bhatt. They all returned to their vehicle and then Brijlal ran away. Then Bhatt and Singh compelled Mantu to run away but the accused was arrested. The amount of charas recovered is a huge amount of 13 Kgs. Why would NCB officials falsely implicate the accused when there is no history of past enmity? The defence version that the NCB officials gave 2 Kgs of charas to Mantu so that he would keep quiet also appears to be totally false. This is a case where the defence has led evidence and examined as many as 8 witnesses, but surprisingly Brijlal, Mantu and Kaushalya Devi were not examined. The defence makes no sense. As per the initial version Brijlal was sitting in the vehicle and they had said that they had purchased the contraband from village Tikkar but as per the latter part of the statment Singh and Bhatt went along with Mantu and the accused to village Tikkar and then purchased 15 Kgs of charas from Brijlal. These two versions cannot exist together. Thus the defence version is not even a plausible version. 28. 13 Kgs of charas have been recovered. There were senior officials in the police party. Their statements discussed above shows that the statements are consistent and there are no material contradictions. The wife of the accused was not present in the dhabha. The accused was managing the dhabha. The defence of the accused is not that the charas belonged to any of his servants, but a specific defence was taken that the charas was planted by the police officials. 29. Mr. D.P. Chauhan, learned counsel for the accused has relied upon the judgment of a division bench of this Court in State of H.P. V. Gajinder and another, 2011(2) Him. L.R. (DB) 601. We are afraid that this authority does not lay down any proposition of law but is based on the appreciation of evidence on the facts of the case. In the present case, if the entire evidence is scrutinized, it is apparent that when the accused was asked about the smell of charas he became nervous. L.R. (DB) 601. We are afraid that this authority does not lay down any proposition of law but is based on the appreciation of evidence on the facts of the case. In the present case, if the entire evidence is scrutinized, it is apparent that when the accused was asked about the smell of charas he became nervous. When he was asked what was lying inside the gunny bag he nervously replied Kuch nahi kuch nahi. He did not say that the bag did not belong to him but avoided to give a direct answer. The gunny bag was lying just below the counter where the person managing the dhabha would be standing. The servants would not be behind the counter but would either be cooking, serving the customers or washing utensils. Once a huge amount of charas was recovered from the counter of the dhabha which according to us was being managed by Jeet Ram then he alone would have to explain how the charas was found there. In the absence of any plausible explanation, the charas is proved to have been recovered from the conscious and exclusive possession of the accused. 30. As far as the sealing part is concerned, the learned trial Court was swayed by the fact that the samples remained with PW-1 Rakesh Goyal and the seal also was with him. The learned trial Court totally lost sight of the fact that on 19.6.2001 the JMIC, Theog had also appended his signatures on the samples as well as the bulk parcels and therefore, there was no chance of the samples being tamper d with. In fact no suggestion was either put to PW-1 Rakesh Goyal or PW-2 Hayat Singh, that the seals were tampered. 31. We are also not at all in agreement with the learned trial Court that the prosecution appears to be unnatural and improbable only on the ground that 13 Kgs of charas was lying in open in a gunny bag. According to the learned trial Court it is not believable that any person would keep such a huge quantify of charas in an open condition. We fail to understand the reasoning of the learned trial Court. How a person behaves is something personal to him? The time was late at night and the accused may not have been expecting any police officials to come. We fail to understand the reasoning of the learned trial Court. How a person behaves is something personal to him? The time was late at night and the accused may not have been expecting any police officials to come. The NCB officials in no uncertain terms stated that they had genuine information that trafficking of charas was going on in the area in question and therefore, two police parties had left for Theog. One party headed by PW-4 R.P. Singh went earlier and the second party headed by PW-1 Rakesh Goyal left a little later from Shimla. The fact that the first party stopped at a dhabha where the charas was kept may be a coincidence, but merely because it is a coincidence is not a ground to disbelieve the prosecution case. Life is full of coincidences and the police officials on such like duties may stop at hundreds of dhabha but may find contraband only in one or two. This coincidence is not sufficient to discredit the prosecution case. Even if we assume that the prosecution had prior information about some activities in the dhabha in question then also the provisions of Section 42 are not attracted since the dhabha is a public place. 32. In view of the above discussion, we are clearly of the view that the prosecution has proved its case beyond reasonable doubt and has proved that 13 Kgs of charas was recovered from the exclusive possession of the accused who was managing the dhabha in question. We, therefore, allow the appeal, set aside the judgment of the learned trial Court and convict accused Jeet Ram for having committed an offence punishable under Section 20 of the NDPS Act. His bail bonds are cancelled. Now the accused be produced before us on 31st December, 2012 to be heard on the quantum of sentence.