JUDGMENT Hon’ble Alok Singh, J (Oral). 1. Appellant Heera Bahadur, by way of present appeal, is assailing the judgment and order dated 04.03.2011 passed by 6th Additional Sessions Judge / Special Judge, NDPS Act, Haridwar in Special Sessions Trial No. 32 of 2010 whereby appellant was found guilty for the offence punishable under Section 18/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and was sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs. 1,00,000/- (Rupees One Lakh) and in default of payment of fine, to further undergo additional imprisonment for one year and appellant Dhan Kumari, by way of present appeal, is assailing the judgment and order dated 04.03.2011 passed by 6th Additional Sessions Judge / Special Judge, NDPS Act, Haridwar in Special Sessions Trial No. 33 of 2010 whereby she was found guilty for the offence punishable under Section 18/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and was sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs. 1,00,000/- (Rupees One Lakh), and in default of payment of fine, to further undergo additional imprisonment for one year. Since in both the appeals, FIR is the same and evidence is same, therefore, both the appeals are being taken up together and are being disposed of by this common judgment. 2. Since both appeals are arising out of same incident and all the facts and circumstances are identical in both the matters, therefore, both the appeal are being disposed of by this common judgment. Since facts of both the cases are identical, therefore, facts of CRJA No. 16 of 2011, are being mentioned for disposal of both the appeals. 3. 2. Since both appeals are arising out of same incident and all the facts and circumstances are identical in both the matters, therefore, both the appeal are being disposed of by this common judgment. Since facts of both the cases are identical, therefore, facts of CRJA No. 16 of 2011, are being mentioned for disposal of both the appeals. 3. Brief facts of the present case, inter alia, are that SHO PS Gori Shankar, Haridwar Uttam Singh Jimwal, Sub Inspector Jaswant Singh, Head Constable Harpal Singh, lady Constable Tara Goswami along with other police personnel were on patrolling duty on Haridwar – Nazibabad Road; at about 01.35 p.m. near 4.2 diversion post PW 5 signalled a bus bearing No. UP 25 T 9665 to stop; the moment bus came to halt, police personnel for the purpose of checking boarded into the bus; having seen the police party appellants started behaving abnormally; and both of them stood up in order to come out from the bus, however, both of them were detained and asked as to why they were behaving abnormally, on this appellants told the police personnel that both of them were carrying charas; on this, police personnel told the appellants about their legal rights that they could be searched before a Gazetted Officer or Magistrate, however, both of them told the police personnel that they had complete trust on the police party, therefore, they could be checked by police party itself; having obtained the consent of the appellants, search was conducted; appellant Heera Bahadur was found in possession of DOKA (a hand knitted bag made up of green leaves) whereas appellant Dhan Kumari was found in possession of a green colour bag; on opening of DOKA, appellant Heera Bahadur was found carrying 14.500 kg of charas, Dhan Kumari was found having 9.500 kg of charas in the green bag; thereafter, both of them were formally arrested and weighing scale was called for and thereafter, charas was weighed, it was found of aforesaid quantities. After weighing the contraband, contrabands were kept in the respective DOKA and bag; DOKA and bag were kept in two separate white colour seal covers; Uttam Singh Jimwal PW5, thereafter, has affixed his own seal and signature on the seal cover and sample seal was also prepared on the spot; copy of the seizure memo and arrest memo were handed to the appellants, thereafter, police party along with appellants and contrabands came to the police station and soon thereafter, a check FIR was got registered at 03.45 p.m. with police station Gauri Shankar, Kumbh Mela, Haridwar. Initially, investigation was handed over to PW 8 Kamal Ram Arya on 20.01.2010 itself, however, later on, it was handed over to Sub Inspector Pradeep Chauhan PW7. Having investigated the matter, PW7 had filed two different charge-sheets against the appellants. Special S.T. No. 32 of 2010 was registered against the appellant Heera Bahadur while Special ST No. 33 of 2010 was registered against the appellant Dhan Kumari. Both the trials were heard and decided by 6th Additional Sessions Judge / Special Judge (NDPS Act), Haridwar and were decided by two separate judgments. 4. From the side of prosecution, PW1 Jaswant Singh, PW2 Anil Kumar, PW3 Harpal Singh, PW4 lady Constable Tara Goswami, PW5 SHO Uttam Singh Jimwal / Arresting Officer, PW6 Constable Kapil Chauhan, PW7 SI Pradeep Chauhan, PW8 Inspector Kamal Ram Arya, PW9 Constable Devendra Singh and PW10 Harshmani were produced and examined. 5. Learned trial court, having perused the entire material available on record, was pleased to convict and sentence the appellants vide judgment and order under appeals. 6. I have heard Mr. Deep Chandra Joshi and Mr. Pramod Chandra Tiwari, Amicus Curiae for the appellants and Mr. Prabhakar Joshi, Brief Holder for the State and have carefully perused the record. 7. As per the statement of PW1 Sub Inspector, Jaswant Singh, PW3 Head Constable Harpal Singh, PW4 lady Constable Tara Goswami, PW5 Uttam Singh Jimwal, they were on patrolling and checking duty on Haridwar – Nazibabad Road on 20.01.2010; a bus belonging to UPSRTC of Moradabad Depot having registration no. UP 25 T 9665 was coming from Nazibabad; police party for the purpose of checking signalled the bus to stop near 4.2 km. UP 25 T 9665 was coming from Nazibabad; police party for the purpose of checking signalled the bus to stop near 4.2 km. diversion on Haridwar Nazibabad Road; the moment police party started boarding the bus for the purpose of checking, appellants started behaving abnormally and had left their respective seats to leave the bus; both of them were detained and were asked as to why they were behaving abnormally, on this, both of them replied, they were scared as both were carrying charas; thereafter, PW5 explained both of them about their legal rights to be searched in presence of a Gazetted Officer / Magistrate. However, both of them told the police party that they had complete trust on them, therefore, search could be made by the police party; having received the consent to be search by the police party, two consent memos were prepared, then and there, and signatures of appellants were obtained on their respective consent letters; on search, appellant Heera Bahadur was found carrying 14.500 kg of charas in his DOKA while appellant Dhan Kumari was found 9.500 kg of charas in her green bag; all the formalities of seizure memo, arrest memo and keeping the material under the seal of PW 5 as well as preparing the sample of seal of PW5 were done on the spot, thereafter, accused along with contraband were brought to the police station and accused were sent to lockup and contraband was deposited in the maalkhana. 8. As per the statement of PW5 SHO Uttam Singh Jimwal, appellant Dhan Kumari was searched by lady Constable Reena Ansari, both the appellants were searched while they remained in bus and both of them were carrying their respective bags while as per statement of PW4 lady Constable Tara Goswami search was conducted on the appellants on road, after taking them out from the bus. She further states that she has undertaken the search on Dhan Kumari and on search, nothing was recovered from her possession. PW4 further states that she does not know as to whether said DOKA or green bag were kept in the bus. PW4 further states that she does not know as to whether appellants were sitting in front or rear portion of bus; she does not know as to whether appellants were sitting together or on different seats. PW4 further states that she does not know as to whether said DOKA or green bag were kept in the bus. PW4 further states that she does not know as to whether appellants were sitting in front or rear portion of bus; she does not know as to whether appellants were sitting together or on different seats. She further states that she does not remember as to what time police personnel along with appellants and contraband reached to the police station. She further states she does not know how many and what papers were prepared on the spot. She further states that she does not know who has written the consent memos for the search of appellants by police personnel. She further states that she does not know at what time formality of arrest of appellants was done. 9. PW4 was one of the member of raiding party is not supporting the prosecution story. Her statement as recorded hereinabove creates reasonable doubt on the genuineness of prosecution story. Not only this, as per the statement of PW 1 and PW5, police personnel along with appellants and contraband reported back to the police station on the same day at about 03.45 p.m. and soon thereafter, check FIR was lodged and contraband was deposited in maalkhana. However, PW10 SI Harshmani in the first line of his cross examination states that he cannot say at what time contraband was deposited in the police station on 20.01.2010; he has made entry in the GD about deposit of contraband on 21.01.2010 but he cannot say at what time it was deposited on 21.01.2010. PW10 further states that he cannot say, even after perusing the record, how many times contraband related to this case, were taken out from maalkhana. He further states that both the seal covers containing the contraband related to the case were taken out for the first time from maalkhana on 04.02.2010 and were sent for chemical examination to FSL, Dehradun under the orders of SP (City) on pro forma prepared by Investigating Officer Bharat Singh. He further submits that as per entry dated 15.02.2010 of GD, PW7 SI Pradeep Chauhan left the police station but there is no entry to the effect that PW7 taken out charas from the Maalkhana and as per the entry, contraband was taken by Investigating Officer Bharat Singh to be produced before the court on 15.02.2010. 10. He further submits that as per entry dated 15.02.2010 of GD, PW7 SI Pradeep Chauhan left the police station but there is no entry to the effect that PW7 taken out charas from the Maalkhana and as per the entry, contraband was taken by Investigating Officer Bharat Singh to be produced before the court on 15.02.2010. 10. It is very important to note here that SI Bharat Singh, who has taken out the contraband on 15.02.2010 to be produced before the court has never been Investigating Officer or associated with the present case. It is not understandable as to why SI Bharat Singh has prepared the proforma on 04.02.2010 too to send the contraband to Dehradun for chemical examination. On the other hand, PW7 SI Pradeep Chauhan states that he has taken contraband to the court on 15.02.2010 for taking out samples therefrom. Statement of PW7 are contrary to the entries of maalkhana as well as to the statement of PW10 SI Harshmani. Moreover, sending the entire contraband on 04.02.2010 and on 15.02.2010 on the entries made by SI Bharat Singh creates doubt. Prosecution is duty bound to prove beyond reasonable doubt that contraband remained untouched and un-tampered before the same could be produced before the court for the purpose of taking out sample therefrom for chemical examination. 11. As per the statement of Investigating Officer Pradeep Chauhan, PW7 samples were taken out from the contraband so recovered from both the appellants in the court from 15.02.2010 after getting approval from Special Judge, NDPS, Haridwar. No certificate as required under Section 52-A of the Act as observed by the Division Bench of this Court in Criminal Appeal No. 70 of 2008 (Prema Shah vs. State of Uttarakhand) is available on record. In the absence of certificate of Magistrate or the Special Judge, as the case may be, it cannot be said that Magistrate / Special Judge has compared, checked the inventories, seals, signatures on the record with the entries, seals and signatures available on the seal cover to say everything was in order and there was no infirmity therein. In the absence of certificate, it would not be safe to hold that samples were drawn in the presence of court and thereafter Magistrate or Special Judge after satisfying himself has put his seal on the packet containing the sample and contraband. 12. In the absence of certificate, it would not be safe to hold that samples were drawn in the presence of court and thereafter Magistrate or Special Judge after satisfying himself has put his seal on the packet containing the sample and contraband. 12. In view of this, it cannot be said that contraband remained intact in the maalkhana, therefore, chemical examination report losses its importance. 13. There is specific case of the appellants in their respective statements recorded under Section 313 Cr.P.C. as well as in the suggestion made to the prosecution witnesses that both of them were going on foot and they were not travelling in the bus and they have been falsely implicated in order to save others. 14. Statement of appellants and the suggestions made to the prosecution witness finds supports from the statements of Constable Devendra Singh PW9, who has conducted the search on the appellant before lodging appellant Heera Bahadur into police lock up and in whose presence, personal search of appellant Dhan Kumari was also made by lady constable before lodging her in police lock up. He says that from appellant Heera Bahadur Rs. 4500 and Nepali currency of denomination 1010 were recovered and from appellant Dhan Kumari Rs. 2080 and Nepali currency of denomination 500 were recovered. Apart from this, nothing was recovered. If both the persons were traveling in the bus, obviously, both of them must have carried the tickets of bus, which were not recovered from the possession of either of the appellants, as per statement of PW9 while as per the statement of PW2 Anil Kumar bus conductor he has issued tickets to both the appellants at Moradabad. 15. Version of PW1 and PW5 stands falsify to the effect that after preparing the seizure memo and arrest memo copies thereof were handed over to the appellants but the same were not recovered at the time of personal search of the appellants before lodging them in lockup. 16. In view of discussion made hereinabove, reasonable and grave doubt has been created on the veracity of prosecution story. Therefore, in the firm opinion of this court, it would not be safe to convict the appellants on the basis of suspicion or on the basis of large quantity of charas. 16. In view of discussion made hereinabove, reasonable and grave doubt has been created on the veracity of prosecution story. Therefore, in the firm opinion of this court, it would not be safe to convict the appellants on the basis of suspicion or on the basis of large quantity of charas. Suspicion how high may be and contraband, how large may be should not be made basis of conviction, until and unless, prosecution is able to prove the guilt of accused beyond reasonable doubt. 17. In the result, both the appeals are allowed. Impugned judgments and orders passed by the Designated Court are hereby set aside. Appellants stand acquitted. Appellants are in jail. Let they be released forthwith from jail, if not wanted in any other case. Let a copy of this judgment be also placed in CRJA No. 22 of 2011. 18. Let a copy of this judgment be sent to the court below for information along with lower court record.