JUDGMENT Dev Darshan Sud, J. Both these appeals are being decided by this judgment as they arise out of the same judgment of the learned Special Judge. The appellant-Dev Raj has been convicted for offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the ‘ND&PS Act’) and sentenced to undergo rigorous imprisonment for five years and fine of Rs. 25,000/-. 2. The prosecution case is that on 30th November, 2009, police party headed by PW10 Constable Kartar Singh was at ‘Hardaspura Chowk’ Chamba town. At around 5.10 P.M. he found the accused carrying a bag on his right shoulder. On seeing him, the accused tried to run away which aroused his suspicion but he (accused) was nabbed. Two independent witnesses PW1 Sh. Pankaj Kumar and Sh. Kuldeep Singh (not examined) were present there. The bag of the accused was searched and it was found to contain charas in the shape of sticks and round balls etc. The contraband was found to be 3 Kgs. The case was registered against the appellant thereafter. 3. The prosecution produced ten witnesses in support of its case. The case of the accused was one of the total denial. In order to prove its case, the prosecution examined PW10 Kartar Singh, Investigating Officer, who stated that on the day aforesaid, he along with other police officials were present at Hardaspur Chowk. At around 5.10 P.M., he saw the accused with a bag on his shoulder coming from Bharmour side and was proceeding towards Chamba. On seeing the police party, he tried to run away from the spot but was nabbed at a distance of about 50 metres. One Kuldeep Singh, resident of Hardaspura (not examined) and PW1 Pankaj Kumar resident of Mohalla Dhargo were present on the spot. On inquiry, the accused disclosed his name as Dev Raj son of Sh. Ujjal Singh. He was informed by the police about his legal right of search and option under Section 50 of the ‘ND&PS Act’. On search of the bag, one polethene bag of green colour containing the contraband which on weighment was found to be 3 Kg. This was sealed in a parcel with four seals with impression ‘k’ and N.C.B. forms etc. was prepared. In cross examination he admitted that the parcel Ext.P1 was stitched with sewing machine from out side. PW2 H.C. Sh. This was sealed in a parcel with four seals with impression ‘k’ and N.C.B. forms etc. was prepared. In cross examination he admitted that the parcel Ext.P1 was stitched with sewing machine from out side. PW2 H.C. Sh. Varinder Singh supports the case of the prosecution and corroborates the version of PW10 H.C. Sh. Kartar Singh. He admits that the accused was confronted in a busy place. To similar effect is the evidence of Constable PW3 Rajesh Kumar and PW4 Constable Mohammad Aslam, who corroborate the other witnesses in all material particulars regarding the factum of the accused being confronted in the bazaar and the contraband seized from him. 4. Learned counsel appearing for the appellants submits that one Kuldip Singh, who according to the prosecution was an independent witness, has not been examined and the other independent witness PW1 Pankaj Kumar has not supported the case of the prosecution. 5. Adverting to the evidence of PW1 Sh. Pankaj Kumar, he states that he is running a shop of confectionary and had gone to get his motor cycle repaired at Mohalla Julakari, Chamba. A private bus came from the side of Rakh which was stopped by the police, 3/4 persons were taken out of the bus by them and he was told that charas has been recovered and he should affix his signatures on the document. He could not identify the accused. He was declared hostile and has been cross-examined at length by the prosecution. In cross-examination, he states that no contraband was seized in his presence and that the police never informed the accused about the legal option of his right of search. Then he admits that he had affixed the signatures on the documents after application of mind. He states that he has affixed his signature after going through the contents of these documents. A perusal of the records shows that he has fixed his signatures on Ext.PW1/A, which is a option memo for obtaining consent for search, Ext.PW1/B personal search of the Investigating Officer given to the accused, Ext.PW1/C specimen seals, Ext.PW1/D search memo, Ext.PW1/E arrest memo and Ext.PW1/F which is the articles recovered from the accused person. 6. A perusal of the records shows that he has fixed his signatures on Ext.PW1/A, which is a option memo for obtaining consent for search, Ext.PW1/B personal search of the Investigating Officer given to the accused, Ext.PW1/C specimen seals, Ext.PW1/D search memo, Ext.PW1/E arrest memo and Ext.PW1/F which is the articles recovered from the accused person. 6. Submission made by learned counsel for the appellant is that since one independent witness has not been produced and the second witness has resiled from his statement, the recovery of the contraband cannot be said to have been proved since all the other witnesses are police personnel. Mr. Anup Chitkara, learned counsel submits that though the principle that the evidence of the police officials cannot be discarded has been established in number of cases but the Court always insists on careful scrutiny of the evidence in order to rule out false implication. In these circumstances, learned counsel submits that there is no explanation on the record as to why the other independent witnesses have not been examined and that PW1 Pankaj Kumar was in any manner tried to help the accused. Learned counsel places reliance on the judgment of the Supreme Court in Jagdish Vs. State of M.P., (2003) 9 SCC 159 , the Court holds: “4. The only evidence on which the prosecution case hinges is that of PW-1 Shri Dudhnath Ram who at the relevant time was working as Sub-Inspector, Narcotics. Both the panch witnesses, Shankar Lal PW-2 and Chhoga Lal PW-3 have not supported the prosecution case. Even the driver of the bus Hari Singh PW-5 and conductor of the bus Afsar-U-ddin PW-6 turned hostile and did not support the prosecution case. Our careful analysis of the deposition of PW-1 Dudhnath Ram shows that his testimony suffers from many infirmities and it would not be safe to rely upon his sole testimony to hold the appellant guilty. 5. It has not at all been explained by the prosecution and by PW-1 as to why he brought down only one passenger from the bus, if he did not have any prior information or entertained any suspicion regarding the involvement of the appellant for possessing or smuggling of opium. It is not the case of PW-1 that he had any prior information and therefore he searched the bus looking for the suspect. It is not the case of PW-1 that he had any prior information and therefore he searched the bus looking for the suspect. In case he had some prior information, he was obliged to make a record of it and send its copy to higher officials before proceeding for checking duty. On his own admission PW-1 went towards Ratlam for checking buses with a view to find out in case any opium was being smuggled or if anybody was found in possession of the same. He checked only one passenger from the bus which had almost 30/40 other passengers and "discovered" that the only passenger was in possession of opium. The entire story sounds unnatural. There is no explanation given by PW-1 as to why he did not search or question any other passenger. Since, both the panch witnesses as well as the driver and conductor of the bus have given a lie to the statement of PW-1 Dudhnath Ram, we have scrutinized his evidence with great care but the same does not inspire confidence.” (P.160&161) 7. Learned counsel submits that in Bhola Ram Kushwaha Vs. State of Madhya Pradesh, (2001) 1 SCC 35 , the Supreme Court affirms this principle. Learned counsel submits that in Bahadur Singh Vs. State of Madhya Pradesh and another, (2002) 1 SCC 606 , the Court holds: 8. Under the aforesaid circumstances the appellant cannot be convicted on the sole testimony of police witnesses, PW3. The question of applicability of Section 35 of the Act will not arise in the present case when the recovery itself is doubtful. The appellant had disputed the recovery of contraband. There are serious discrepancies in its recovery, seizure and deposit in the Maalkhana. The prosecution has thus failed to prove its case beyond all reasonable doubts against the appellant who is accordingly entitled to benefit of doubt. (P.610) 8. In Ravindran alias John Vs. Superintendent of Customs, (2007) 6 SCC 410 , the Supreme Court holds: 12. Learned counsel for the appellant argued that the two independent witnesses in whose presence he had been searched were not examined at the trial. Reliance was placed on an observation contained in paragraph 28 of the report in (2004) 12 SCC 201 State of West Bengal and Others Versus Babu Chakraborthy. In the instant case it is not disputed that two independent witnesses were associated when the search was conducted. Reliance was placed on an observation contained in paragraph 28 of the report in (2004) 12 SCC 201 State of West Bengal and Others Versus Babu Chakraborthy. In the instant case it is not disputed that two independent witnesses were associated when the search was conducted. The search was, therefore, conducted in accordance with law. But it is argued that failure to examine the two witnesses is fatal to the case of the prosecution. In our view, this is not the correct legal position. Even where independent evidence is not examined in the course of the trial the effect is that the evidence of the official witnesses may be approached with suspicion and the Court may insist on corroboration of their evidence. In (2000) 4 SCC 465 High Court of H.P. 7 Koluttumottil Razak Versus State of Kerala this Court observed:- "7 In the present case, unfortunately, apart from the evidence of the police officers there is absolutely no independent evidence to ensure confidence in our mind that the search was in fact conducted by PW1 as he has claimed. As his evidence is required to be approached with suspicion due to violation of Section 42 of the Act we may require corroboration from independent sources that is lacking in this case". In (2003) 8 SCC 449 M. Prabhulal Versus Assistant Directorate of Revenue Intelligence, a similar question was raised in the context of the provisions of the NDPS Act. This Court held: "6.Next, the learned counsel contends that the independent witnesses of the recovery of the contraband having not been examined and only police witnesses having been examined, the recovery becomes doubtful. Reliance is placed upon the decision in Pradeep Narayan Madgaonkar V. State of Maharashtra, (1995) 4 SCC 255 . In the decision relied upon while observing that prudence dictates that evidence of police witnesses needs tobe subjected to strict scrutiny, it was also observed that their evidence cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or prosecuting agency, but as far as possible, corroboration of their evidence in material particulars should be sought". (P.416 &417) 9. Learned counsel then submits that in Ritesh Chakarwarti Vs. (P.416 &417) 9. Learned counsel then submits that in Ritesh Chakarwarti Vs. State of Madhya Pradesh, (2006) 12 SCC 321 , the Court acquitted the accused on the ground that though independent witnesses were produced but they were not from the same locality and that the facts of this case are some what similar because despite an admission having been made by the witnesses that there were number of shops near the area where the accused was searched, independent witnesses were available. Non examination of such witnesses was fatal to the case. Similar was the position in Durand Didier Vs. Chief Secretary Union Territory of Goa, (1990) 1 SCC 95 , holding: 8. After the appellant was secured by the police, PW-7 directed PW-4 to bring two pancha witnesses. Accordingly, PW-4 brought two witnesses from a place which is according to PW-7 is within a distance of 1 KM and according to PW-5 at five minutes walking distance. Much argument was advanced by the learned defence counsel that these two witnesses were not the respectable inhabitants of that locality; that they were readily willing and obliging witnesses to the police and that there is deliberate violation of the statutory safeguard. This argument cannot be endured for more than one reason to be presently stated. The appellant was secured in the midnight near the police out post. It clearly transpires from the records that these two witnesses are not outsiders but residents of the same area, namely Colva. Except making some bare suggestions that both the witnesses were regular and professional witnesses, nothing tangible has been brought out in the cross-examination to discredit the testimony of PW-1. This Court, while considering a similar contention in Sunder Singh v. State of U.P., [1956] Crl. Law Journal 801 and Tej Bahadur v. State of U.P., [1970] 3 SCC 779 has observed that if pancha witnesses are not respectables of the same locality but from another locality, it may amount only to an irregularity, not affecting the legality of the proceedings and that it is a matter for Courts of fact to consider and the Supreme Court would not ordinarily go behind the finding of facts concurrently arrived at by the Courts below. 9. See also State of Punjab v. Wasson Singh and Five Others, [1981] 2 SCR 615. 10. 9. See also State of Punjab v. Wasson Singh and Five Others, [1981] 2 SCR 615. 10. When such is the view, expressed by this Court on a number of occasions, we are unable to appreciate the submission of the learned counsel that the prosecution case is in violent disregard of the procedure relating to search and seizure. The question that PW-1 and other pancha witnesses are not the inhabitants of the locality does not arise in the present case because it is indisputably shown that they are the residents of the same Colva area where the Police Out Post is situated. The fact that these two witnesses are not residing in the vicinity of the seizure, in our view, does not disturb the acceptance of the evidence of PW-1 relating to the seizure of the contrabands and other articles. With regard to the drawing up of the panchnama, the defence has come forward with two diametrically contradictory suggestions in that, the suggestion made to PW-1 is that he only subscribed his signatures on some papers whilst a new story, suggested to PW-7 is that the panchanama was fabricated around the 5th of January 1988 in order to save one Ramesh, brother of PW-5 from being prosecuted in connection with this seizure. To establish the seizure of all the articles including the contrabands, the prosecution rests its case not only on the testimony of PW-1 but also on the evidence of PWs 5 and 7 whose evidence is amply corroborated by the towering circumstances attending the case. (P.100 & 101). 10. Learned Additional Advocate General submits that this is not an inflexible principle. It is not a sine qua non but applicable to the facts of case. He relies upon the decision of the Supreme Court in Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746 , holding: 19. The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. State of Haryana (2010) 3 SCC 746 , holding: 19. The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalwat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. 20. 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. 21. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses has rightly come to the conclusion that the appellant was arrested and Charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding. (P.754) 11. Learned Additional Advocate General submits that this in fact is the established law. We find no good reason to differ from that finding. (P.754) 11. Learned Additional Advocate General submits that this in fact is the established law. There can be no rigid principle that merely because (a) the witnesses have turned hostile (b) the other witnesses are police officials and the case of the prosecution cannot be said to have been not proved in terms of Section 3 of the Evidence Act. 12. In Anil Vs. State of Maharashtra, (1996) 2 SCC 589 , Pattu Lal Vs. State of Punjab (1996) 8 SCC 228 , Abdul Majid Vs. State of Gujrat (2003) 10 SCC 198, Balbir Singh Vs. State (1996) 11 SCC 139 , Girja Prasad Vs. State of H.P. (2007) 7 SCC 625 and Aher Raja Khima Vs. State of Saurashtra, AIR 1956 S.C. 217 , the Supreme Court is clear that the testimonies/evidence of the police officials cannot be discarded merely because of the fact that they are police officials. The Court lays down a rule of scrutiny in order to weed out false implication. When considered in the light of the principles laid down by the Supreme Court, I find that there is no contradiction in the evidence of the four police officials, namely PW10 H.C. Kartar Singh, PW2 H.C. Varinder Singh, PW3 Constable Rajesh Kumar and PW4 Constable Mohammad Aslam. Even considering the case of independent witness, I find that he has willingly singed the memos considered supra after having understood the same. I may add at this juncture that in case this witness was forced to sign the documents, the matter could have been reported to some statutory authority for the reason that it was the life and liberty of a citizen which was at stake and he was not expected to have signed on forged and fabricated documents. In these circumstances, I find no merit in this appeal which is accordingly dismissed. 13. Adverting to the second appeal (Cr. Appeal No.387 of 2010) preferred by the State, a prayer is made for enhancement of the sentence imposed upon the accused. The case urged by the State is that the accused was found in conscious possession of 3 Kg of charas. I do not find that any case is made out for enhancement of sentence. More so in view of the judgment of a Division Bench of this Court in Dharam Pal Vs. The case urged by the State is that the accused was found in conscious possession of 3 Kg of charas. I do not find that any case is made out for enhancement of sentence. More so in view of the judgment of a Division Bench of this Court in Dharam Pal Vs. State of H.P., 2007 (2) Shim.L.C.19, inter alia, holding that it is only the resin content which would be taken into consideration. No interference is called for in the judgment of the learned Special Judge. Appeal is dismissed.