JUDGMENT P.S. Rana, J. Present appeal filed against the judgment and sentence passed by learned Sessions Judge Kinnaur Sessions Division at Rampur Bushehr HP in Sessions Trial No. 03 of 2007 titled State Vs. Jitender Kumar and another decided on dated 10.11.2008. BRIEF FACTS OF THE PROSECUTION CASE: 2. Brief facts of the case as alleged by prosecution are that on dated 19.10.2006 at 7 AM at Sainj accused were found in exclusive and conscious possession of 5 Kg. 850 grams of charas at Sainj District Kinnaur H.P. It is alleged by prosecution that accused persons when saw the police officials got nervous. It is alleged by prosecution that co-accused Jitender was in possession of bag which was kept by him upon his shoulder. It is further alleged that police got suspicion and inquired about whereabouts of accused persons. It is further alleged that police called Kuldeep Singh a restaurant owner and Satpal to the spot and prepared consent memo Ext.PW6/A. It is further alleged by prosecution that bag was searched and in bag four polythene packets were recovered containing charas in the shape of sticks and balls. It is further alleged that recovered charas was weighed and it was found 5.800 Kg. It is further alleged that two samples of 25 grams each were separated from all packets and samples were sealed with three seals having impression ‘H’ and further alleged that remaining bulk charas was separately sealed with six seals of seal impression ‘H’. It is further alleged by prosecution that NCB form in triplicate Ext.PW9/A was filled and all four parcels along with NCB form were took into possession. It is further alleged by prosecution that ruka Ext.PW9/B was prepared and forwarded the same to police station through C.Parmod Singh. It is further alleged by prosecution that on the basis of ruka FIR Ext.PW3/A was registered and I.O. also prepared spot map Ext.PW9/C and memos of arrest Ext.PW9/E and Ext.PW9/F were also prepared. It is further alleged by prosecution that ruka Ext.PW9/B was prepared and forwarded the same to police station through C.Parmod Singh. It is further alleged by prosecution that on the basis of ruka FIR Ext.PW3/A was registered and I.O. also prepared spot map Ext.PW9/C and memos of arrest Ext.PW9/E and Ext.PW9/F were also prepared. It is further alleged by prosecution that sample of parcels with sample of seal and NCB form were handed over to C. Bhawan Dass PW6 for delivery to CFSL Chandigarh which were deposited by him on dated 24.10.2006 and receipt of deposit was also obtained by him on back of R.C. No. 25 of 2006 Ext.PW11/B. It is further alleged by prosecution that special report was sent to SDPO Rampur through C. Mool Chand PW5 on dated 20.10.2006 Ext.PW4/A. It is further alleged by prosecution that as per report of chemical analysis Ext.PW9/G sample was found to be of charas. It is further alleged that polythene packets recovered from accused are Ext.P1 to Ext.P4, bag Ext.P5, sample of seal ‘H’ Ext.P6, specimen seal Ext.P7, another bag Ext.P8, shirt Ext.P9, two pants Ext.P10 and Ext.P11, parcel received from Chemical Analysis Ext.P12, purse Ext.P13, PAN card Ext.P14 and Samsung mobile Ext.P15. 3. Prosecution examined eleven witnesses in support of its case :- Sr.No. Name of Witness PW1 C. Padam Singh PW2 Parmod Kumar PW3 ASI Sadanand PW4 Rama Nand Constable PW5 Mool Chand Constable PW6 Bhagwan Dass Constable Satpal PW7 Satpal PW8 Balbir Singh ASI PW9 Sant Singh Inspector PW10 Suresh Kumar Constable PW11 Bhupinder Singh HC 4. Prosecution also produced following piece of documentary evidence in support of its case :- Sr.No. Description: Ext.PW1/A Consent memo Ext.PW/B Memo regarding recovery of charas Ext.PW2/A Memo regarding personal search of Jitender Kumar Ex.PW2/B Memo regarding personal search of Ramesh Kumar Ex.PW3/A Copy of FIR Ex.PW9/B Rukka Ex.PW4/A Copy of special report Ex.PW6/A to Ext.PW6/E Copies of Rapat No. 11, 23, 5, 12 and 22 Ex.P 7 Sample seal ‘H’ Ex.PW9/A Copy of test memo Ex.PW9/C Site map Ex.PW9/D Copy of statement under Section 161 Cr.P.C. of Satpal for contradiction purpose. Ex.PW9/E Memo regarding information of arrest of accused Jitender Kumar Ex.PW9/F Memo regarding information of arrest of accused Ramesh Kumar Ex.PW9 /G Report of Chemical Examiner Ex.PW9/H Sample seal ‘R’ Ex.PW11/A Copy of Malkhana register Ex.PW11/B Copy of RC No. 95/2006. 5. Ex.PW9/E Memo regarding information of arrest of accused Jitender Kumar Ex.PW9/F Memo regarding information of arrest of accused Ramesh Kumar Ex.PW9 /G Report of Chemical Examiner Ex.PW9/H Sample seal ‘R’ Ex.PW11/A Copy of Malkhana register Ex.PW11/B Copy of RC No. 95/2006. 5. Statements of the accused were also recorded under Section 313 Cr.P.C. Accused did not examine any defence witness in support of their case. Learned Special Judge Kinnaur at Rampur Bushehr convicted the appellant under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- (Rs. One lac). Learned Special Judge Kinnaur at Rampur Bushehr further directed that in default of payment of fine the appellant would further undergo to rigorous imprisonment for one year. 6. Feeling aggrieved against the judgment and sentence passed by learned Trial Court appellant filed present appeal and prayer for acceptance of appeal sought. 7. We have heard learned Advocate appearing on behalf of the appellant and learned Additional Advocate General appearing on behalf of the respondent and also perused the entire record carefully. 8. Question that arises for determination before us in this appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice to the appellant. ORAL EVIDENCE ADDUCED BY PROSECUTION: 9.1. PW1 Padam Singh has stated that on dated 19.10.2006 he was posted as I.O. P.P. Sainj and he along with SHO Sant Singh, ASI Balbir, C. Parmod, C. Sanjeev went for Nakabandi operation at Sainj rivulet where after conducting the Nakabandi operation they were coming back and when their vehicle reached at Sainj at about 7.40 AM near Kuldeep restaurant then two persons who were also coming towards the restaurant got frightened when they saw the police and on this SHO stopped the vehicle and made inquiries from them. He has stated that one of the accused was carrying a bag disclosed his name as Jitender and other person who was with him disclosed his name as Ramesh Kumar and both were residents of Haryana. He identified the accused persons in Court. He has stated that one of the accused was carrying a bag disclosed his name as Jitender and other person who was with him disclosed his name as Ramesh Kumar and both were residents of Haryana. He identified the accused persons in Court. He has stated that SHO got suspicion and thereafter notice under Section 50 of ND&PS Act was given to accused and accused gave the consent to be searched by police and memo Ext.PW1/A was prepared which was signed by SHO, witnesses and accused. He has stated that thereafter bag in possession of co-accused Jitender was searched and found that four polythene bags were kept containing charas. He has stated that charas was weighed which was found 5 Kg. 800 grams. He has stated that SHO took two samples of 25 grams each proportionately from all four bags and prepared seizure memo Ext.PW1/B which bears his signatures and which was also signed by Satpal and Kuldeep, accused and SHO. He has stated that bulk of charas was placed in same bag. He has stated that charas along with envelope are Ext.P1 to Ext.P4 and bag is Ext.P5. He has stated that same were recovered from possession of accused. He has stated that SHO also filled up NCB form in triplicate at the spot. He has denied suggestion that rapat No. 11 and 24 have been fabricated. He has admitted that co-accused Ramesh disclosed that he is married in village Tharla (Nirmand). He has denied suggestion that co- accused Ramesh told that he was going to the house of his inlaws. He has stated that co-accused Ramesh disclosed that they have brought the charas from village Tharla. He has denied suggestion that restaurant of Kuldeep was situated at a distance of fifty feet from Atul Regency. He has denied suggestion that restaurants of Kuldeep and Satpal were situated opposite to each other across the road. He has stated that site plan and seizure memo are in his writing and they were prepared as per dictation given by SHO. He has denied suggestion that false case has been made against the accused as they belong to Haryana in order to get reward. 9.2 PW2 C. Parmod Kumar has stated that on dated 19.10.2006 he was with patrolling party led by SHO Sant Singh along with ASI Balbir Singh, HC Padam Singh, C. Sanjeev Kumar along with driver Amir Chand. He has denied suggestion that false case has been made against the accused as they belong to Haryana in order to get reward. 9.2 PW2 C. Parmod Kumar has stated that on dated 19.10.2006 he was with patrolling party led by SHO Sant Singh along with ASI Balbir Singh, HC Padam Singh, C. Sanjeev Kumar along with driver Amir Chand. He has stated that they conducted nakabandi operation at Sainj rivulet and while they were coming back at about 7.40 AM then they saw two persons in front of Kuldeep restaurant who got frightened when they saw the vehicle of police and therefore SHO stopped the vehicle. He has further stated that SHO inquired the names of those persons who disclosed their names as Ramesh Kumar and Jitender residents of Haryana. He has stated that thereafter SHO gave a notice under Section 50 of ND&PS Act that he had suspicion that they were in possession of some narcotic substance. He has further stated that SHO told the accused persons whether they intended to be searched by gazetted officer or illaqua Magistrate. He has stated that co-accused Jitender was carrying a bag on his shoulder. He has further stated that SHO opened the bag which was in possession of co-accused Jitender which was found containing charas in four polythene bags. He has stated that charas was weighed and on weighment it was found 5.800 Kg. He has stated that I.O. took two samples of 25 grams each proportionately from all envelopes and put the same in two empty boxes and sealed with seal ‘H’ in separate cloth parcel. He has stated that I.O. also took separate specimen of seal and has stated that ruka Mark X was sent for registration of FIR which he took to police station Kumarsain. He has stated that MHC handed over to him the file after registration of case which he took to spot and handed over the same to SHO. He has stated that personal search of accused Jitender and Ramesh was also taken and memos Ext.PW2/A and Ext.PW2/B were prepared which bear his signatures. He has denied suggestion that no document was prepared at the spot. He has denied suggestion that he did not take the ruka to police station. He has stated that personal search of accused Jitender and Ramesh was also taken and memos Ext.PW2/A and Ext.PW2/B were prepared which bear his signatures. He has denied suggestion that no document was prepared at the spot. He has denied suggestion that he did not take the ruka to police station. He has denied suggestion that he was called by H.C. Padam Singh and informed that he had recovered charas from National Highway and two Haryanvis have run away from the spot leaving the bag. 9.3 PW3 ASI Sadanand has stated that during the month of October 2006 he was posted as SHO in P.S. Kumarsain and has further stated that on dated 19.10.2006 C. Parmod Kumar has brought one ruka Mark X to police station on the basis of which he recorded FIR Ext.PW3/A which is in his hand and bears his signatures. He has further stated that his endorsement on ruka is Ext.PW3/B. He has stated that FIR Ext.PW3/A is not in his hand but same is signed by him. He has denied suggestion that FIR has been manipulated at a later stage. 9.4 PW4 C. Ramanand has stated that during the year 2006 he was posted as B.R.K. in SDPO office Rampur and has stated that on dated 20.10.2006 special report Ext.PW4/A was received in the SDPO office Rampur and further stated that report was received through C. Mool Chand. He has stated that he entered the special report in the register. He has denied suggestion that entry in the register has been fabricated. 9.5 PW5 C. Mool Chand has stated that he is posted as Constable in P.S. Kumarsain since 2005. He has further stated that on dated 20.10.2006 he was given special report by MHC Bhupinder Singh which he handed over to Reader to Dy.S.P. Rampur. He has denied suggestion that special report was not given to him in sealed packet. 9.6 PW6 C. Bhagwan Dass has stated that on dated 23.10.2006 MHC Bhupinder Singh had handed over one sealed parcel sealed with seal ‘H’ along with sample seal and NCB forms to be handed over to CFSL Chandigarh. He has stated that samples were deposited by him on dated 24.10.2006. He has further stated that seals of samples remained intact till the same remained in his custody. He has stated that samples were deposited by him on dated 24.10.2006. He has further stated that seals of samples remained intact till the same remained in his custody. He has further stated that he has also brought daily diary register and rapat No. 11 dated 19.10.2006, rapat No. 23 dated 19.10.2006, rapat No. 5 dated 20.10.2006, rapat No. 12 dated 19.10.2006 and rapat No. 22 dated 23.10.2006 are Ext.PW6/A to Ext.PW6/E which are correct as per original record. He has stated that copies Ext.PW6/A to Ext.PW6/E have not been prepared by him. He has also stated that he has not made any entry in the roznamcha. 9.7 PW7 Satpal has stated that police had not effected any recovery in his presence and has stated that nothing was recovered in his presence. He has denied suggestion that two persons were walking on the road and they got frightened when they saw the police officials. He has denied suggestion that police officials made inquiry from the accused in his presence. He has denied suggestion that I.O. conducted the search of the bag carried by co-accused Jatinder. He has denied suggestion that seizure memo Ext.PW1/B was prepared. He has denied suggestion that he has deposed falsely to favour the accused. He has stated that bag was not opened in his presence. 9.8 PW8 ASI Balbir Singh has stated that he was posted as Incharge, P.P. Sainj from October 2006 to October 2007. He has stated that on dated 19.10.2006 SHO Sant Singh came to P.P. and then they went along with HC Padam Singh No. 169, C. Pramod No. 1561 and C. Sanjeev Kumar to Sainj rivulet at about 3.30 AM for nakabandi. He has stated that when they were returning and when they reached near restaurant of Kuldeep they noticed two persons walking on the road and when they saw the police party they got scared. He has stated that search of accused Jatinder was carried out and he has stated that bag in possession of co-accused Jatinder also searched. He has further stated that charas in shape of sticks and balls was recovered from bag which was in possession of co-accused Jatinder. He has stated that thereafter 50 grams of charas took out from all polythene bags for sample purpose and divided into 25 grams each. He has further stated that charas in shape of sticks and balls was recovered from bag which was in possession of co-accused Jatinder. He has stated that thereafter 50 grams of charas took out from all polythene bags for sample purpose and divided into 25 grams each. He has stated that NCB form in triplicate was prepared and personal search of accused was also conducted. He has denied suggestion that both accused persons told that they were going to Ramesh’s in-laws house. He has denied suggestion that NCB from mark X was not filled at the spot. He has denied suggestion that no NCB form was filled in his presence and no charas was effected from possession of accused in his presence. 9.9 PW9 Sant Ram has stated that he was posted as SHO at P.S. Kumarsain from September 2006 to November 2007 and on dated 19.10.2006 at about 7.40 AM he along with Balbir Singh ASI, Padam Singh HC, Pramod Kumar Constable, Sanjiv Kumar Constable after Nakabandi at Sainj rivulet were proceeding to Sainj and when he reached at Sainj Chowk, he noticed two persons walking on the road and one of them was having bag on his shoulder. He has stated that on suspicion, he got Gypsy stopped and he inquired about their whereabouts and inquired from the accused. He has stated that on suspicion the bag in possession of co-accused Jatinder Kumar was searched and in bag four polythene bags were kept and in polythene bags charas was kept in shape of sticks and balls. He has stated that charas was weighed and on weighment 5 Kg. 800 grams of charas was found. He has stated that out of the bulk, two samples of 25 grams each were separated and NCB form in triplicate was also prepared. He has stated that he prepared spot map Ext.PW9/C the marginal notes of which bears his signatures. He has denied suggestion that no NCB form was prepared at the spot and also denied suggestion that no recovery has been effected from the accused. He has denied suggestion that accused were on way to In-laws house of co-accused Ramesh in Nirmand area. He has denied suggestion that HC Padam Singh found bag abandoned at Sainj. He has also denied suggestion that actual owner fled away and also denied suggestion that false case has been filed against accused persons. He has denied suggestion that accused were on way to In-laws house of co-accused Ramesh in Nirmand area. He has denied suggestion that HC Padam Singh found bag abandoned at Sainj. He has also denied suggestion that actual owner fled away and also denied suggestion that false case has been filed against accused persons. 9.10 PW10 C. Suresh Kumar has stated that he was posted M.C. at P.S. Kumarsain during the year 2001 to January 2008. He has stated that he has brought rapat roznamcha register and rapat No. 23 dated 19.10.2006 Ext.PW6/B, rapat No. 5 dated 19.10.2006 Ext.PW6/C, rapat No. 12 dated 20.10.2006 Ext.PW6/D and rapat No. 22 dated 22.10.2006 Ext.PW6/E. He has denied suggestion that abandoned bag of charas was recovered from the parapet. He has denied suggestion that false case has been filed against accused persons. 9.11 PW11 HC Bhupinder Singh has stated that he was posted at MHC in P.S. Kumarsain from June 2002 to July 2007. He has further stated that he has brought malkhana register and R/C register. He has stated that on dated 19.10.2006 SHO Sant Singh deposited with him one raxin bag sealed with seal impression ‘R’ containing charas. He has stated that two samples sealed with six seals having seal impression ‘H’ and another parcel containing articles recovered during personal search of accused sealed with seal ‘H’, NCB form, samples of seals ‘R’ and ‘H’ which were entered by him in malkhana register against Sr. No. 271. He has stated that copy Ext.PW11/A is true copy. He has stated that on dated 23.10.2006 one sample parcel with sample of seal and NCB from were handed over to C. Bhagwan Dass No. 988 for depositing the same at CFSL Chandigarh and he had given receipt of delivery. He has stated that case property remained intact during his custody. He has denied suggestion that case property was not deposited with him. He has also denied suggestion that he was making false statement being the police official. Non-mentioning of crime number in NCB form is fatal to the prosecution 10. We have carefully perused NCB form Ext.PW9/A placed on record. In NCB form Ext.PW9/A column of crime number has been kept blank by seizing officer. It is held that in view of blank column of crime number in NCB form Ext.PW9/A NCB form is not connected with FIR No. 97/2006. We have carefully perused NCB form Ext.PW9/A placed on record. In NCB form Ext.PW9/A column of crime number has been kept blank by seizing officer. It is held that in view of blank column of crime number in NCB form Ext.PW9/A NCB form is not connected with FIR No. 97/2006. It is held that non-mentioning of crime number in NCB form is fatal to the prosecution. Even PW9 Inspector Sant Singh when appeared in witness box has specifically stated that he did not mention FIR number in NCB form Ext.PW9/A. Non-montioning of quantity and net weight of recovered charas in NCB form is fatal to the prosecution case. 11. In NCB form the seizing officer has also not mentioned the net weight of entire bulk of recovered contraband. Non-mentioning of entire weight of bulk of charas in NCB form is also fatal to prosecution case. Even PW9 Inspector Sant Singh when appeared in witness box has admitted in cross examination that he did not mention the quantity and weight of charas recovered in NCB form. Non-mentioning of facsimile of seal in NCB form is also fatal to the prosecution case 12. In NCB form facsimile of seal has not been mentioned and only word ‘English’ has been mentioned. Hence it is held that same is also fatal to the prosecution case in present case. It was held in case reported in Latest HLJ 2011(HP) 1995 titled Nanha vs. State of H.P. that if no facsimile of the seal is placed on NCB form and seal is also not produced in Court then conviction cannot be recorded. Even non-mentioning of date of draw sample and dispatch of sample in NCB form is also fatal to the prosecution case 13. It is proved on record that seizing officer did not mention the date of draw and dispatch of sample in NCB form. PW9 Inspector Sant Singh when appeared in witness box has stated that he kept the column of date of draw and dispatch of sample blank in the NCB form hence same is fatal to the prosecution case. Non production of original seal in Court fatal to the prosecution case 14. In present case PW9 Inspector Sant Singh has stated that original seal was handed over to Kuldeep Singh but prosecution did not produce the original seal in Court and also did not examine Kuldeep Singh. Non production of original seal in Court fatal to the prosecution case 14. In present case PW9 Inspector Sant Singh has stated that original seal was handed over to Kuldeep Singh but prosecution did not produce the original seal in Court and also did not examine Kuldeep Singh. Hence it is held that nonproduction of original seal and non-examination of Kuldeep Singh to whom the original seal was handed over is fatal to the prosecution case. Non-support to prosecution case by independent witness namely Sat Pal is fatal to the prosecution case 15. In present case PW7 Sat Pal has stated in positive manner that as per prosecution story charas was recovered from possession of accused in presence of independent witnesses namely Kuldeep and Satpal. Prosecution did not examine Kuldeep independent witness in present case and prosecution has only examined Satpal. But PW7 Satpal did not support the prosecution case and has stated in positive manner that no recovery was effected from accused in his presence. Contradiction between weight mentioned in NCB form and weight mentioned in report of CFSL Chandigarh is fatal to the prosecution case 16. As per NCB form 25 grams of charas was taken for sample purpose and as per report of CFSL Chandigarh Ext.PW9/G 19.88 grams of charas was received in CFSL Chandigarh. Substantial reduce in weight of charas in the sample is also fatal to the prosecution case. 17. Submission of learned Additional Advocate General appearing on behalf of the State that conviction granted by learned trial Court be sustained in view of testimonies of police witnesses is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that two views have emerged in present case. It is the case of prosecution that charas was recovered from possession of accused persons in presence of independent witnesses namely Kuldeep and PW7 Satpal. Prosecution has examined Satpal as PW7 who has stated in positive manner that no recovery was effected from possession of accused in his presence. It was held by Apex Court of India in Criminal Appeal No. 1320 of 1999 decided on 12th April, 2005 titled state of U.P. vs. Gambhir Singh and others that if two views are reasonably possible then one in favour of accused must be preferred . It was held by Apex Court of India in Criminal Appeal No. 1320 of 1999 decided on 12th April, 2005 titled state of U.P. vs. Gambhir Singh and others that if two views are reasonably possible then one in favour of accused must be preferred . (See (2013)2 SCC 89 titled Mookkiah and another vs. State See 2011(11) SCC 666 titled State of Rajasthan vs. Talevar, See AIR 2012 SC (Supp) 78 titled Surendra vs. State of Rajasthan , See 2012(1) SCC 602 State of Rajasthan vs. Shera Ram @ Vishnu Dutta. See AIR 1974 SC 2165 titled Balak Ram and another vs. State of U.P., See (2002)3 SCC 57 , titled Allarakha K. Mansuri vs. State of Gujarat, See (2003)1 SCC 398 Raghunath vs. State of Haryana, See AIR 2007 SC 3075 State of U.P. vs. Ram Veer Singh and others, See AIR 2008 SC 2066 (2008) 11 SCC 186 S. Rama Krishna vs. S. Rami Raddy (D) by his LRs. & others. Sambhaji Hindurao Deshmukh and others vs. State of Maharashtra, (2009)10 SCC 206 titled Arulvelu and another vs. State, (2009)16 SCC 98 Perla Somasekhara Reddy and others vs. State of A.P. and (2010)2 SCC 445 titled Ram Singh @ Chhaju vs. State of Himachal Pradesh.) 18. In present case as per prosecution story marginal witnesses of seizure memo Ext.PW1/B are Satpal and Kuldeep Singh only. Independent marginal witness PW7 Satpal did not support the prosecution story and prosecution did not examine another marginal witness Kuldeep Singh mentioned in seizure memo Ext.PW1/B. Prosecution did not mention names of other police officials as marginal eye witnesses in seizure memo Ext.PW1/B. It is well settled law that contents of seizure memo can be proved by marginal witnesses only. In present case contents of seizure memo are not proved by way of testimonies of marginal witnesses and same is fatal to prosecution case. In present case contents of seizure memo are not proved by way of testimonies of marginal witnesses and same is fatal to prosecution case. Testimonies of other police officials are not helpful to the prosecution case because other police officials are not signatory to seizure memo Ext.PW1/B and it is well settled law that contents of documents can be proved by way of examination of a person who is signatory to document i.e. seizure memo Ext.PW1/B. It is not expedient in the ends of justice to convict the appellant on the testimonies of police officials who are not signatory to seizure memo Ext.PW1/B. It is held that it is not sufficient to convict the appellant on the testimony of PW1 HC Padam Singh in view of contradictory testimony of PW7 Satpal who was marginal witness of seizure memo Ext.PW1/B because PW7 Satpal has stated in positive manner that no recovery has been effected from the possession of accused persons. In view of contradictory testimonies of marginal witnesses namely PW1 HC Padam Singh No. 169 and PW7 Satpal it is not expedient in the ends of justice to convict the appellant on the basis of contradictory testimonies of marginal witnesses mentioned in seizure memo Ext.PW1/B because in seizure memo Ext.PW1/B placed on record names of marginal witnesses have been mentioned as Kuldeep son of Shri Hans Raj, Satpal son of Shri Kishan Dayal and HC Padam Singh No. 169 only. It was held in case reported in (2005)9 SCC SC 765 (DB) titled Anjlus Dungdung vs. State of Jharkhand that suspicion however strong cannot take place of proof. It was again held in case AIR 1979 SC 1382 titled State (Delhi Administration) vs. Gulzarilal Tandon that suspicion however grave cannot take place of proof. (also see AIR 1984 SC 1622 titled Sharad Birdhichand Sarda vs. State of Maharashtra, See: AIR 1983 SC 906 titled Bhugdomal Gangaram and others vs. the State of Gujarat See: AIR 1985 SC 1224 titled State of U.P. vs. Sukhbasi and others . It was held in case reported in AIR 1967 SC 520 titled Charan Singh vs. The State of UP that the Court must guard against the danger of allowing conjecture or suspicion to take place of legal proof. (Also see AIR 1971 SC 1898 titled (1) Gian Mahtani and (2) Budhoo and others vs. State of Maharashtra). It was held in case reported in AIR 1967 SC 520 titled Charan Singh vs. The State of UP that the Court must guard against the danger of allowing conjecture or suspicion to take place of legal proof. (Also see AIR 1971 SC 1898 titled (1) Gian Mahtani and (2) Budhoo and others vs. State of Maharashtra). It was held in case reported in 1998(2) S.L.J. 1408 Shashi Pal and others vs. State of HP that if two versions appear in prosecution evidence then version beneficial to the accused, should be adopted. (Also see 1993(1) SLJ 405 titled State of H.P. vs. Sudarshan Singh, See 1995 (3) SLJ 1819 titled State of Himachal Pradesh vs. Inder Jeet and others, See 1995(4) SLJ 2728 titled State of H.P. vs. Diwana and others. 19. In view of above stated facts it is held that learned trial Court did not properly appreciate the oral as well as documentary evidence placed on record and it is held that learned trial Court has committed grave miscarriage of justice by way of convicting the appellant in present case. Hence we accept the appeal and set aside the conviction of appellant in present case. We give benefit of doubt to appellant in present case. Appellant be released forthwith if not required in any other case. The Registrar (Judicial) is directed to issue the release warrant forthwith in accordance with law. The contraband i.e. 5.800 Kg. be forfeited in accordance with law in favour of State of H.P. Appeal stands disposed of including all pending miscellaneous application(s), if any.