Judgment : Sureshwar Thakur, Judge The instant appeal is directed by the State, against the impugned judgment, rendered on 31.12.2007 by the learned Special Judge, Bilaspur, Himachal Pradesh in NDPS case No. 11 of 2004, whereby, the learned trial Court acquitted the accused/respondent for his having committed offences under Sections 20 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Brief facts, of the case are that on 3.3.2004 ASI Deep Ram along with ASI Mohinder Singh, H.C. Nanak Chand, H.C. Jasbir Singh, Constable Ram Singh and LC Nirmla Devi of CIA Staff, was on patrol duty near Jamli. At about 4.30 p.m., a secret information was received that accused Gabber Singh, who runs a dhaba at Jamli deals in the business of charas and afeem (opium) in his dhaba. This information was reduced into writing and sent to the higher Police Officer at Bilsapur through constable Ram Singh. Thereafter, a raiding party was constituted in which independent witnesses, namely, Ghunger Ram and Prem were associated. When the raiding party visited dhaba of the accused, he was found there. He was informed in writing about the information that he was in possession of sufficient quantity of charas and afeem and for this reason his dhaba was required to be searched. He was further informed whether he wanted his dhaba to be searched in the presence of Magistrate or Gazetted Officer or by the police. Upon this, the accused consented that the search of his dhaba be carried out by the police. A consent memo in this regard was prepared. Thereafter the search of the dhaba was carried out. In the upper room of the dhaba, there was a shelf on the left wall on which photographs of Goddess Durga and God Shiv were kept. Behind those photographs, there was an empty pouch (polythene) of Una No.1 which was found containing charas in the shape of wicks. In other polythene envelope there was 13 puriyans of afeem. In the shelf, there were 202 currency notes of the denomination of Rs.100/- each, total Rs.20,200/-. Allegedly, this money was the out come of the business of charas and opium. On weighment, opium was found to be 50 grams and charas was found to be 220 grams. From the recovered charas, two samples each weighing 25 grams were separated and sealed with seal ‘S’. Allegedly, this money was the out come of the business of charas and opium. On weighment, opium was found to be 50 grams and charas was found to be 220 grams. From the recovered charas, two samples each weighing 25 grams were separated and sealed with seal ‘S’. The bulk charas i.e. 170 grams was put in the same pouch and it was also sealed with seal ‘S’. Whereas, bulk charas was marked as ‘A’ and the samples were marked A-1 and A-2. Similarly, two samples each weighing 10 grams were also drawn from the recovered opium and sealed in a polythene envelope with seal ‘S’. The bulk opium was put in the same polythene envelope and also sealed with seal ‘S’. Thereafter, the bulk opium was marked as ‘B’, the samples thereof were marked as B-1 and B-2. The recovered currency was also sealed in a cloth parcel with seal ‘S’ and it was marked as ‘C’. NCB forms in triplicate were prepared. The impression of the seal used in sealing was taken on cloth and the seal after its use was handed over to witness Premu. The licence of the dhaba was also taken into possession along with the case property through a seizure memo. During the course of investigation, site plan was prepared and statements of the witnesses were recorded. Special report under Section 57 of the Act was prepared and sent to S.P., Bilaspur. The sealed samples were sent to CTL, Kandaghat and to this effect opinion was obtained as per which the samples were found to be that of charas and opium. 3. On completion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 Cr.P.C. was prepared and filed in the Court. 4. The accused was charged for his having committed an offence punishable under Sections 20 and 18 of the Act, by the learned trial Court, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined 13 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. 5. On appraisal of the evidence on record, the learned trial Court returned findings of acquittal against the accused. 6. On closure of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and claimed false implication. 5. On appraisal of the evidence on record, the learned trial Court returned findings of acquittal against the accused. 6. The State of H.P. is aggrieved by the judgment of acquittal recorded by the learned Trial Court in favour of the accused/respondent. Mr. Pramod Thakur, the learned Additional Advocate General has concertedly and vigorously contended, that the findings of acquittal recorded by the learned trial Court below are not based on a proper appreciation of the evidence on record rather, they are sequelled by gross mis-appreciation of the material evidence on record. Hence, he, contends that the findings of acquittal be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction and concomitantly, an appropriate sentence be imposed upon the accused/respondent. 7. On the other hand, the learned defence counsel has with considerable force and vigour contended that the findings of acquittal recorded by the Court below are based on a mature and balanced appreciation of the evidence on record and do not necessitate interference, rather merit vindication. 8. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record. 9. The first witness, who stepped into the witness box to prove the prosecution case, is, PW-1 H.C. Jasbir Singh. He in his deposition has deposed a version which is in square tandem with the genesis of the prosecution version as referred to hereinabove. In his cross-examination he deposes that there is no shop or residential accommodation situated near the said dhaba and the dhaba is having two storeyed building. He deposes that both the rooms of the dhaba were searched. He deposes that the shelf might be of the dimension of 2 feet in width and three feet in length and it was opened. He deposes that at the time of search, accused and the investigating officer had gone inside the room which was searched and they were standing near the door of that room. He deposes that the independent witnesses were also standing with them. He deposes that at the time of search, accused and the investigating officer had gone inside the room which was searched and they were standing near the door of that room. He deposes that the independent witnesses were also standing with them. He deposes that the proceedings were carried out inside the room and the same were completed in the room itself where the search was conducted. 10. PW-2 H.C. Nanak Chand in his deposition has also deposed in square tandem with the genesis of the prosecution version, as also, in corroboration to the testimony of PW-1. In his cross-examination, he deposes that it was about to dark when they entered the room and the rukka was prepared inside the room and the same was sent to the police station through H.C. Jasbir Singh. He further deposes that the accused was asked about the persons working in his dhaba but he told that there was none and that he was himself running the dhaba. 11. PW-3 C. Ram Singh deposes that on 3.3.2004, ASI Deep Ram handed over to him secret information in writing which he gave to the reader to Dy.S.P., Bilaspur. 12. PW-4 Bhag Singh stated that he has constructed a dhaba which has been rented out to the accused for a consideration of Rs.1200/ per month. 13. PW-5 HHC Sita Ram deposes that on 4.3.2004 MHC Jai Lal has handed over to him two sealed parcels sealed with three seal impressions of ‘S’ having 25 grams of charas and 10 grams of opium along with sample seals and NCB forms for depositing the same with the CTL, Kandaghat. He further deposes that he had deposited the same on 5.3.2004 and took the receipt on the R.C. No.37/04. 14. PW-6 H.C Jai Lal deposes that on 3.3.2004, SHO, P.S. Sadar has deposited with him 7 sealed parcels i.e. one parcel containing charas of 170 grams having five seals of ‘S’ impression, 2 samples of charas containing 25 grams each having seals of ‘S’ impression, one sealed parcel of opium containing 30 grams and two samples of opium having 10 grams each sealed with seal impression ‘S’ and parcel containing currency notes of Rs.20,200/-sealed with seal ‘S’ impression as also sample seals of ‘S’ impression with NCB forms in triplicate along with documents were also deposited by the SHO. He deposes that one sample parcel of charas having 25 grams and one sample parcel of opium having 10 grams sealed with ‘S’ impression along with sample seals and NCB forms and docket were sent to the CTL, Kandaghat vide R.C. No.37/04 through C. Sita Ram on 4.3.2004. He further deposes that C. Sita Ram after depositing the aforesaid samples parcels with CTL, Kandaghat handed over the receipt to him. In his cross-examination, he admitted the suggestion the name of the depositor of the case property has been mentioned as ASI Deep Ram. He deposes that they usually write the name of the IO in the register. 15. PW-8 H.C. Vijay Kumar, No.66 deposes that on 3.3.2004 at about 6.30 p.m., C. Ram Singh has handed over information under Section 42(2) of the NDPS Act to him. The information has been deposed by this witness to be Ex.PW8/A on which he given his receipt Ex.PW8/B. The information/report Ex.PW8/A has been deposed by this witness to have been produced before the Dy. S.P., Bialspur at 10.30 a.m. on 4.3.2004. 16. PW-9 Sh. Surender Singh deposes that on receipt of rukka Ex.PW9/A, FIR Ex. PW9/B was recorded by him which has been deposed by this witness to be bearing his signatures. Rukka has been deposed by this witness to be bearing his endorsement Ex.PW9/C. He further deposes that on the same day at night, the case property was handed over to him by ASI Deep Ram which bulk of charas and opium was reseald by him. The other sealed parcel containing currency notes has been deposed by this witness to have been resealed by him with two seals of seal impression ‘S’. He further deposes that the case property along with NCB forms was deposited by him with the MHC Jai Lal on the same day. He further deposes that he handed over the certificate of reseal, Ex.PW9/D to the IO on the same day. In cross-examination, he has denied the suggestion that he has got fabricated the entries with respect to quantity of charas and other contraband in the malkhana register. 17. He further deposes that he handed over the certificate of reseal, Ex.PW9/D to the IO on the same day. In cross-examination, he has denied the suggestion that he has got fabricated the entries with respect to quantity of charas and other contraband in the malkhana register. 17. PW-10 Rakesh Mahajan since, he during his examination-in-chief having not supported the prosecution version, he was declared hostile and was requested by the learned Public Prosecutor to be cross-examined, on his request having come to be acceded to, he was cross-examined by the learned Public Prosecutor but no incriminating material against the accused could be elicited from his cross-examination. 18. PW-11 Premu Ram and PW-12, Sh. Ghuger Ram since, they during their examination-in-chief having not supported the prosecution version, they were declared hostile and were requested by the learned Public Prosecutor to be cross-examined, on his request having come to be acceded to, they were cross examined by the learned Public Prosecutor. However, both of these witnesses have admitted their signatures of Ex.PW1/A and Ex.PW1/B. 19. PW-13 Shri Deep Ram, the Investigating Officer, who in his deposition has deposed in square tandem with the genesis of the prosecution version, as also, in corroboration to the testimonies of PW-1 and PW-2. In his cross-examination, he deposes that they reached at the spot at 4.45 p.m. and remained there up to 8.45 p.m. He deposes that the rukka was scribed at 6.00 p.m. He deposes that he, H.C. Jasbir Singh, H.C. Nanak Chand, two witnesses Ghunger and Premu entered in the room at the time of search. He feigned ignorance to the fact that Kuldeep was also partner of the accused. He denied the suggestion that the secret information was received at Bilaspur. He has denied the suggestion that all the signatures of witnesses were obtained on the memos with reading the contents thereof to them. He has denied the suggestion that the accused was not in possession of the contraband. He has also denied the suggestion that a false case has been planted on the accused on the pressure of local people, who wanted that the accused should leave that place. 20. The prosecution version is bedrocked upon the factum of recovery of contraband comprising both “Charas” and “Opium”, weighing 220 grams and 50 grams, respectively, allegedly recovered by the police from the Dhaba of the accused, run in partnership with one Sh. 20. The prosecution version is bedrocked upon the factum of recovery of contraband comprising both “Charas” and “Opium”, weighing 220 grams and 50 grams, respectively, allegedly recovered by the police from the Dhaba of the accused, run in partnership with one Sh. Kuldeep Singh, from the back of a religious photograph, kept on the shelf of the Dhaba. Also a sum of Rs.20,200/- was recovered from the very same place. In proof of the prosecution case, the prosecution had relied upon the deposition of the official witnesses. Two independent witnesses PW-11 and PW-12 also stepped into the witness box, however, they did not lend any support to the prosecution case. Given the lack of support to the prosecution case by the independent witnesses aforesaid, the learned trial Court concluded that the prosecution case as a whole falls and staggers. However, the non imputation of credence by the learned trial Court to the testimonies of the official witnesses, who deposed in tandem with each other, as also when their testimonies were bereft of any inter-se or intra-se contradictions, merely for the lack of support having been lent to their testimonies by the independent witnesses, has erroneously and unwarrantedly led the learned trial Court to record findings of acquittal in favour of the accused. The reasons for so concluding is grooved in the preponderant factum of theirs having not denied the existence of their signatures on the memos. Obviously then given the fact that they have omitted to depose in their respective testimonies that they appended their signatures thereon under compulsion or duress. As a sequel then they are bound by the recitals recorded therein. As a concomitant then theirs having reneged from the recitals recorded in the memos is of no consequence as it comprises oral evidence in derogation to or in detraction to the recorded contents qua search, seizure and recovery comprised in Ex. PW1/B, which oral evidence, in detraction from or in derogation to the scribed contents admitted to be signatured by the aforesaid PW- 11 and PW-12, is barred and interdicted by Section 91 and 92 of the Indian Evidence Act. PW1/B, which oral evidence, in detraction from or in derogation to the scribed contents admitted to be signatured by the aforesaid PW- 11 and PW-12, is barred and interdicted by Section 91 and 92 of the Indian Evidence Act. As a corollary, then it has to be emphatically concluded that theirs turning hostile is of no consequence and ought not to have prevailed upon the learned trial Court to, on the said anvil, conclude that the prosecution case is permeated with doubt, more so when a reading of the testimonies of the official witnesses omits to convey existence of any inter-se or intra-se contradictions in their respective testimonies, as such, when their testimonies are both credible or inspiring, theirs being ousted from appreciation or theirs being discarded, was unwarranted. 21. The learned trial Court in recording findings of acquittal in favour of the accused has concluded that given the place of recovery of the aforesaid items of contraband inasmuch, as, from behind the religious photograph kept on the shelf of the dhaba owned by the accused in partnership with one Shri Kuldip singh, wherein 3 to 5 persons were employed, as also, when was accessible to the customers, consequently, given the place of its keeping as well as its accessibility to both the employees as well as to the customers, the items could well have been kept there by either the customers or the employees, as such, it was concluded that it was impermissible to deduce that the items of contraband were kept and concealed by the accused alone or, hence, it was also not permissible to conclude that the items of contraband were kept there with the place of its keeping being exclusively within the physical control of the accused. Besides, it was concluded by the learned trial Court that, hence, the keeping of the items could not be construed to be within the knowledge of the accused and with his carrying in his mind the necessary mens rea, so as to constitute the offences alleged. Besides, it was concluded by the learned trial Court that, hence, the keeping of the items could not be construed to be within the knowledge of the accused and with his carrying in his mind the necessary mens rea, so as to constitute the offences alleged. However, the aforesaid reasons afforded by the learned trial in recording findings of acquittal in favour of the accused is infirm as well as frail inasmuch as (a) when it has been conclusively proved that he was running a dhaba in partnership with one Kuldip singh, hence was in control of or had dominion as owner over the entire premises that, hence, it has been inaptly concluded by the learned trial Court its being accessible to the customers as well as to the employees is of vital consequence; (b) the recovery of a sum of Rs.20,200/- from the place where the items of contraband were recovered, firmly ousts the reasoning afforded by the learned trial Court of there being probability of or possibility of the items of contraband having been kept there, inasmuch as in case any person other than the accused, while having access to it had taken to keep them at the place from where the items of contraband were found, he would have also removed or filched the sum of Rs. 20,200/-. However, when a sum of Rs.20,200/- has remained omitted to be removed or filched by the purported person other than the accused, it conveys that the sum as kept there comprised the earnings from the business run by the accused. Furthermore, as a corollary, it is to be inferred that the said sum alongwith the items of contraband were both kept by the accused at the same place while his being in control of or having dominion as owner over the entire premises, as such, it was legally unfit for the learned trial Court to conclude that given the accessibility of the place of recovery of the items of contraband, the aforesaid items could have concealed or kept by any person other than the accused, especially when for the reasons afforded hereinabove, forcefully bespeak the fact of the prosecution having proved its case beyond all reasonable doubt, obviously ousts the findings of acquittal recorded by the learned trial Court. 22. 22. In view of the above discussion, the appeal filed by the State is allowed and the judgment of the learned trial Court is set aside. Accused/respondent is convicted for his having committed offence punishable under Sections 20 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He be heard on quantum of sentence on 25.09.2014 on which date he be produced before this Court.