JUDGMENT P.S. Rana, J. Present appeal filed against the judgment passed by learned Special Judge Shimla in Sessions trial No. 5-S/7 of 2008 titled State of H.P. vs. Sunder Singh. BRIEF FACTS OF THE PROSECUTION CASE : 2. Brief facts of the case as alleged by prosecution are that on dated 12.10.2007 PW10 ASI Barjinder Singh of P.S. Theog along with H.C. Shashi Kumar and H.C. Devinder Nath, C. Bittu Verma, HHG Brij Lal, HHG Bhagat Ram were on patrolling in vehicle No. HP-07-5328 which was driven by driver Gulzar Mohammad and in this regard entry in daily diary Ext.PW7/A was made and vide Ext.PW7/B another vehicle was requisitioned to the spot. It is further alleged by prosecution that at about 10.35 AM when they reached at Matiana Nagjubbar link road near Shiv Mandir at that time one Maxi No. HP-63-1538 came from Banada Ghati side which was signaled to stop by the police. It is further alleged by prosecution that vehicle was stopped at a distance in which two persons including driver were present in the vehicle who tried to flee away and police party apprehended both of them. It is also alleged by prosecution that on inquiry accused disclosed his identity as Sunder Singh son of Sewak Ram resident of Kui Matiana and driver disclosed his identity as Krishan Lal. It is further alleged by prosecution that thereafter police party conducted routine search and 200 grams of charas was found from conscious and exclusive possession of accused. It is further alleged by prosecution that out of recovered charas 50 grams charas was taken out and it was divided into two packets of 25 grams each and were sealed into two samples which were marked as A-1 and A-2. It is further alleged by prosecution that bulk charas was also kept in separate cloth parcel. It is also alleged that charas is Ext.P1, cloth parcel is Ext.P2, another sample parcel is Ext.P3 and bulk charas is Ext.P4 and it is further alleged by prosecution that sample of seal is Ext.P5 and jacket was also recovered. It is further alleged by prosecution that NCB form in triplicate was also filled at the spot and seal after use handed over to HC Devinder Nath and vehicle was took into possession along with documents. It is further alleged by prosecution that NCB form in triplicate was also filled at the spot and seal after use handed over to HC Devinder Nath and vehicle was took into possession along with documents. It is further alleged by prosecution that recovered charas and bulk charas were took into possession vide memo Ext.PW1/A and separate seal impression was also obtained on a piece of cloth Ext.P6. It is further alleged by prosecution that driving licence of Krishan Lal was also took into possession and exhibited as Ext.P8. It is further alleged by prosecution that after use the seal was handed over to HC Devinder Nath vide memo Ext.PW1/B and NCB form Ext.PW10/A was prepared. It is further alleged by prosecution that ruka Ext.PW2/A was forwarded through C. Bittu Verma to P.S. Theog and on the basis of which FIR Ext.PW4/B was registered. It is also alleged by prosecution that grounds of arrest were informed to accused vide memo Ext.PW10/D and special report Ext.PW4/A was prepared and was sent to S.P. Shimla. It is further alleged by prosecution that copy of FIR is Ext.PW4/B and case property along with documents were deposited in the malkhana. It is further alleged by prosecution that thereafter MHC Man Dev forwarded the copy of FIR, copy of sample of seal and copy of docket, copy of recovery memo and RC No. 84/07 through C. Ranvir Singh to FSL Junga on dated 13.10.2007 at about 8.40 AM vide Ext.PW7/F. It is further alleged by prosecution that thereafter police officials came back and reported that due to holiday in FSL Junga samples and documents could not be deposited and thereafter samples and documents were kept in malkhana. It is further alleged by prosecution that thereafter on dated 15.10.2007 HC Man Dev again deputed C. Ranvir Singh along with sample of charas and documents to FSL Junga who after depositing the same returned the RC to MHC Man Dev. It is further alleged by prosecution that as per chemical analysis report Ext.PX sample was found that of charas and vehicle was released to rightful owner. 3. Charge was framed against accused by learned special Judge Shimla on dated 7.6.2008 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. Accused did not plead guilty and claimed trial. 4. It is further alleged by prosecution that as per chemical analysis report Ext.PX sample was found that of charas and vehicle was released to rightful owner. 3. Charge was framed against accused by learned special Judge Shimla on dated 7.6.2008 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. Accused did not plead guilty and claimed trial. 4. The prosecution examined the following witnesses in support of its case :- Sr.No. Name of Witness PW1 HC. Devinder Nath PW2 C. Bittu Verma PW3 C. Ranvir Singhy PW4 HC Diwan Chand PW5 Dinesh Kumar PW6 SHO Khajana Ram PW7 HC Man Dev PW8 Tilak Raj Rana PW9 Sunil Begta PW10 ASI Barjinder Singh 4.1 Prosecution also produced following piece of documentary evidence in support of its case :- Sr.No. Description: Ex.PW1/A. Recovery memo. Ex.PW1/B Memo of sample of seal Ex.PW1/D Search memo of Krishan Lal Ex.PW2/A Rukka Ex.PW4/A Copy of Special Report Ex.PW4/B Copy of FIR Ex.PW7/A & Ext.PW7/B Copies of rapat Ex.PW7/C Copy of FIR Ex.PW7/D Endorsement on Ruka Ext.PW7/E. Copy of Malkahana register Ex.PW7/F Copy of daily diary No. 13. Ex.PW7/G Copy of daily diary No. 32 Ex.PW7/H Copy of road certificate. Ext.PW7/J Receipt Ext.PW7/K & Ext.PW7/L Copies of daily diary register. Ext.PW8/A Release order Ext.PW10/A Copy of NCB form Ext.PW10/B Site plan Ext.PW10/C Statement of Sunil Begta under Section 161 Cr.PC. for contradiction purpose. Ext.PW10/D Memo of communication Ext.P-1 to Ext.P9 Charas, parcel, sample parcel, charas, sample of seal along with parcel, sample of seal, jacket, driving licnece and parcel Ext.PX Report of FSL 5. Learned trial Court acquitted the accused qua offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. 6. Feeling aggrieved against the judgment passed by learned Trial Court State of H.P. filed present appeal under Section 378 of Code of Criminal Procedure. 7. We have heard learned Additional Advocate General appearing on behalf of the State of H.P. and learned Advocate 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 as mentioned in grounds of appeals. ORAL EVIDENCE ADDUCED BY PROSECUTION : 9.1. 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 as mentioned in grounds of appeals. ORAL EVIDENCE ADDUCED BY PROSECUTION : 9.1. PW1 HC Devinder Nath has stated that he remained posted as Head Constable at P.S. Theog w.e.f. January 2007 to January 2008 and on dated 12.10.2007 he along with ASI Brijender, HC Shashi Kumar, HC Davinder nath, C. Bitoo Verma, HHG Brij Lal, HHG Bhagat Ram vide rapat No. 3 were on patrol in Government vehicle No. HP-07-5328 with driver Guljar Mohamad. He has stated that when they reached two kilometer away from Matiana near Shiv Mandir at about 10 AM then at about 10.35 AM one Pickup Max No. HP-63-1538 came from Banadaghati side towards Matiana and they signaled to stop the vehicle but driver of said vehicle stopped vehicle at a some distance. He has stated that in that vehicle driver and one person were present. He has stated that after stopping the vehicle driver and accused tried to run away but they were caught. He has stated that on inquiry one person disclosed his name as Sunder Singh and he identified the accused person Sunder Singh in Court and driver of vehicle disclosed his name as Krishan Lal. He has stated that accused was wearing one jacket grey in colour reversible and from the inner pocket one plastic envelope was recovered in which black coloured substance in the shape of balls found. He has stated that on smelling the same found to be that of charas and thereafter ASI Brijender Singh deputed him to bring weight and scales and independent witnesses. He has stated that he went in aforesaid government vehicle along with driver Guljar Mohamad to Matiana market. He has stated that he went to the shop of Dinesh Kumat at Matiana market who is a vegetable vendor and requested him to come to the spot along with weight and scales, but he showed his unwillingness due to reason that there was none in his shop and he could not leave the shop. He has stated that he went to the shop of Dinesh Kumat at Matiana market who is a vegetable vendor and requested him to come to the spot along with weight and scales, but he showed his unwillingness due to reason that there was none in his shop and he could not leave the shop. He has further stated that shopkeeper handed over him 50 grams, 100 grams, 200 grams and 500 grams weights along with scales and he returned to the spot in the same vehicle. He has further stated that when they reached at the spot one independent witness Sunil Bekta was present at the spot. He has stated that in presence of Sunil Bekta charas was weighed which was found to be 200 grams and out of this charas two samples of 25 grams each took out and were sealed with seal impression ‘T’ at the spot bearing three seals impression each and remaining 150 grams of charas was parceled in another cloth and sealed with seal impression ‘T’. Impression of seal was took on NCB form. He has stated that parcels were marked as Mark A1, Mark A2 and bulk parcel as A3. He has stated that parcels were signed by him, witness Sunil Bekta and Sunder Singh and Krishan Lal. He has stated that on personal search of Krishan Lal nothing incriminating was recovered and case property was took into possession along with jacket and vehicle No. HP-63-1538 along with its documents i.e. RC, insurance and driving licence of Krishan Lal vide memo Ext.PW1/A which was signed by him, Sunil Bekta and accused Sunder Singh and Krishan Lal. He has stated that copy of memo was handed over to accused free of cost. He has stated that charas Ext.P1 is the same which was recovered from possession of accused and cloth parcel is Ext.P2. He has stated that parcel bears his signatures and signatures of Sunil Bekta and Krishan Lal. He has stated that charas is Ext.P4 and sample of seal along with parcel is Ext.P5 which bears his signatures and that of Sunil Bekta. He has stated that parcel bears his signatures and signatures of Sunil Bekta and Krishan Lal. He has stated that charas is Ext.P4 and sample of seal along with parcel is Ext.P5 which bears his signatures and that of Sunil Bekta. He has stated that NCB form is mark A and seal after use was handed over to I.O. at the spot and sample of seal was also obtained on a piece of paper and handed over to him vide memo Ext.PW1/B. he has stated that driving licence of Krishan Lal is Ext.P8 which was took into possession by I.O. He has stated that I.O. prepared ruka Mark C at the spot and handed over to C. Bittu. He has stated that thereafter accused was arrested by I.O. and after completion of proceedings he returned weights and scale to Dinesh Kumar shopkeeper. He has denied suggestion that many vehicles passed from the spot. Self stated that spot is link road and only few vehicles used to ply on the road. He has denied suggestion that no charas was recovered from the accused and he has also denied suggestion that charas was recovered from other person and false case filed against the accused. He has stated that he could not state that spot map was not prepared rightly by I.O. He has stated that NCB from was filled at the spot by I.O. He has denied suggestion that all proceedings conducted in police station. He did not bring the seal in Court and self stated that seal was lost and further stated that he did not lodge any report. He has denied suggestion that no seal was handed over to him. 9.2 PW2 Bittu Verma has stated that he is posted as Constable in Police Station Theog since July 2006 and on dated 12.10.2007 vide rapat No. 3 he along with ASI Brijender Singh, HC Shashi Kumar, HC Devinder Nath, HHG Brij Lal and Bhagat Ram in vehicle No. HP-07-5328 along with driver Gulzar Mohamad departed from P.S. Theog at about 2 AM in connection with patrolling duty towards link road Matiana-Banara. He has stated that at about 9.30 AM when they reached 300 metres away from Shiv Mandir on Matiana-Nagjubbar link road which is an isolated place at about 10.35 AM one vehicle No. HP-63-1538 came from Banaraghati side towards Matiana and they signaled to stop the vehicle. He has stated that at about 9.30 AM when they reached 300 metres away from Shiv Mandir on Matiana-Nagjubbar link road which is an isolated place at about 10.35 AM one vehicle No. HP-63-1538 came from Banaraghati side towards Matiana and they signaled to stop the vehicle. He has stated that vehicle was stopped and from the vehicle two persons alighted and when they saw the police party they tried to run away. He has stated that they caught them and on disclosure they disclosed their names as Krishan Kumar driver of vehicle and other person in the vehicle disclosed his name as Sunder Singh. He has stated that personal search of Sunder Singh was conducted who was wearing a grey coloured jacket and from right inner pocket of jacket one plastic envelope was recovered which was containing black coloured substance in the shape of balls. He has stated that on smelling it was found to be charas. He has stated that thereafter HC Devinder Nath was deputed by I.O. to Matiana to bring scale and weights and some independent witnesses in government vehicle and after some time one vehicle from Banaraghati side came there bearing registration No. HP-09A-4144 in which only one person was present who was driver Sunil Bekta. He has stated that he was asked to join them and after some time PW1 Devinder Nath came in aforesaid vehicle and brought with him scale and weights four in numbers of the description as 50 grams, 100 grams, 200 grams and 500 grams. He has stated that charas was weighed in presence of Sunil Bekta and naka party with the help of weights and scale. He has further stated that charas was found 200 grams and out of recovered charas two samples of 25 grams each were separated which were sealed for chemical analysis. He has further stated that sample of seal was also obtained upon the cloth and stated that charas is Ext.P1, parcel is Ext.P2, sample parcel is Ext.P3, sample charas is Ext.P4 and sample parcel is A-1 and jacket which the accused was wearing is Ext.P7. He identified the accused in Court. He has stated that during search of the vehicle documents i.e. insurance, RC and DL of Krishan Kumar were found which were took into possession. He has stated that nothing incriminating article was found from possession of driver. He identified the accused in Court. He has stated that during search of the vehicle documents i.e. insurance, RC and DL of Krishan Kumar were found which were took into possession. He has stated that nothing incriminating article was found from possession of driver. He has stated that case property along with vehicle and documents were took into possession vide memo Ext.PW1/A and I.O. prepared ruka and he took ruka to police station and handed over to MHC at about 1.05 PM and after registration of FIR he handed over case file to I.O. at the spot and I.O. prepared spot map. He has denied suggestion that no charas was recovered from possession of accused. He has denied suggestion that he is deposing falsely against the accused due to personal enmity. He has denied suggestion that whole proceedings were conducted by I.O. at police station. 9.3 PW3 Ranvir Singh has stated that he was posted as Constable in P.S. Theog since 3.10.2007 and on dated 13.10.2007 MHC Man Dev P.S. Thego handed over to him special report of this case and copy of FIR and one sample of charas sealed with seal impression ‘T’. He has stated that he deposited NCB form, copy of FIR, seizure memo, sample seal in the office of FSL Junga. He has stated that he went to the office of FSL Junga but the same was closed due to Second Saturday holiday. He has stated that he returned to police station Theog and handed over the case property to MHC P.S. Theog. He has stated that on dated 15.10.2007 he deposited the case property in the office of FSL Junga and obtained receipt. He has further stated that case property remained intact in his custody. He has denied suggestion that he tampered with the case property. He has denied suggestion that special report was not handed over to him and also denied suggestion that he did not hand over the special report in office of S.P. Shimla. 9.4 PW4 HC Diwan Chand has stated that he is posted as Assistant Reader to S.P. Shimla and he has brought the special report. He has denied suggestion that special report was not handed over to him and also denied suggestion that he did not hand over the special report in office of S.P. Shimla. 9.4 PW4 HC Diwan Chand has stated that he is posted as Assistant Reader to S.P. Shimla and he has brought the special report. He has stated that special report was received from C. Ranvir Singh and has stated that copy of special report is Ext.PW4/A and further stated that copy of FIR is Ext.PW4/B. He has stated that he could identify the writing and signatures of S.P.Shimla as he had worked with him. He has denied suggestion that Ext.PW4/A and Ext.PW4/B were not received in office of S.P. Shimla. 9.5 PW5 Dinesh Kumar has stated that he is running a shop of fruit and vegetable in Matiana market for the last 12 years and further stated that on dated 12.10.2007 one police official came to his shop and demanded him his scale and weights and he handed over the same to him. He has stated that he handed over him the weights ranging from 50 grams to 500 grams i.e. 50, 100, 200 and 500 grams. He has stated that he also requested him to accompany him but he declined due to reasons that he was alone in the shop at that time. He has further stated that said police official had returned the scale and weights back to him after one and half hour. 9.6 PW6 SHO Khazana Ram has stated that he is posted as SHO at P.S. Theog since January 2008 and after completion of investigation he prepared challan against accused Sunder Singh. He has stated that there was no sufficient evidence to prepare challan against Krishan Lal, hence his name was not mentioned in charge sheet. He has stated that challan is signed by him and he presented the challan in Court. 9.7 PW7 HC Man Dev has stated that he remained posted as MHC at P.S. Theog since December 2002 to October 2007 and on dated 12.10.2007 vide daily diary No. 3 ASI Brijender Singh, HC Devinder Nath, HC Shashi Dutt, C. Bittu Verma, HHG Brij Lal and HG Bhagat Ram departed for patrol duty towards N.H. 2. 9.7 PW7 HC Man Dev has stated that he remained posted as MHC at P.S. Theog since December 2002 to October 2007 and on dated 12.10.2007 vide daily diary No. 3 ASI Brijender Singh, HC Devinder Nath, HC Shashi Dutt, C. Bittu Verma, HHG Brij Lal and HG Bhagat Ram departed for patrol duty towards N.H. 2. He has stated that vide daily diary No. 13 dated 12.10.2007 at about 9.35 PM vehicle Tata Mobile was also requisitioned along with driver Gulzar from P.S. Theog bearing No. HP-07-5328. He has stated that on dated 12.10.2007 ruka Ext.PW2/A was received at P.S. Theog through C. Bittu Verma at about 1.05 PM on the basis of which he registered FIR copy of which is Ext.PW7/C. He has further stated that on dated 12.10.2007 at about 7.30 PM ASI Brijender Singh on his returned deposited with him three sealed parcels in which two samples of 25 grams each and one parcel containing 150 grams charas. He has further stated that all three parcels were sealed with seal impression ‘T’. He has stated that NCB form one grey jacket and one vehicle No. HP-63-1538 with key and sample of seal were also deposited by I.O. with him. He has stated that he made entry of the same in Malkhana register at Sr. No. 86 and photocopy of Malkhana Register is Ext.PW7/E. He has stated that special report was sent to the office of S.P. Shimla and thereafter parcel of charas marked as A-1 along with NCB form, copy of FIR, sample of seal, docket and copy of recovery memo vide R.C. No. 84/07 handed over to C.Ranvir Singh to be deposited at FSL Junga. He has stated that thereafter C. Ranbir returned at about 7.10 PM at P.S. Theog and reported that due to holiday sample could not be deposited. He has stated that thereafter he kept the same in Malkhana in his safe custody. He has stated that on dated 15.10.2007 he again deputed C. Ranvir Singh along with seal sample of charas and documents. He has stated that RC was also handed over to him and on back of RC receipt of aforesaid articles appended by officials of the laboratory. He has stated that copy of original roznamcha is Ext.PW7/H and further stated that case property remained intact in his custody. He has stated that RC was also handed over to him and on back of RC receipt of aforesaid articles appended by officials of the laboratory. He has stated that copy of original roznamcha is Ext.PW7/H and further stated that case property remained intact in his custody. He has stated that in compliance with the Court order vehicle along with documents and key except driving licence were returned to the true owner. He has denied suggestion that case property was tampered. 9.8 PW8 Tilak Raj has stated that in the year 2006 he purchased pick-up No. HP-63-1538 and on this vehicle Krishan lal was driver. He has stated that on dated 12.10.2007 driver Krishan Lal and Sunder Singh were apprehended in P.S. Theog in connection with some case and he was called to P.S. and later on he got released his vehicle from the court and received the vehicle along with documents and keys. He has further stated that he appended his signatures as token on release order Ext.PW8/A. He has stated that no recovery was effected in his presence. 9.9 PW9 Sunil Bekta has stated that he was driver by profession and he is driving vehicle No. HP-09A-4144 and further stated that incident took place on dated 12.10.2007. Again stated that he does not remember the date. He has stated that police did not meet him and further stated that police had recorded his statement in Police Station. The witness was declared hostile and was cross examined at length but nothing incriminating evidence came against the accused. He has stated that he does not know whether NCB form was filled by police at the spot or not. 9.10 PW10 ASI Brijender Singh has stated that he was posted as ASI in police station Theog and on dated 12.10.2007 he along with Shashi Kumar HC, HC Devinder Nath, C. Bittu Verma, HHG Brij Lal, HHG Bhagat Ram were on patrolling duty in vehicle No. HP-07-5328 which was driven by driver Gulzar Mohamad. He has stated that at about 10.35 AM when they reached on Matiana Nag Jubbar link road near Shiv temple at that time one Max No. HP-63-1538 came from Banada Ghati side which was directed to stop. He has stated that driver stopped the vehicle at a distance from them and two persons including driver were present in the vehicle who tried to run away. He has stated that driver stopped the vehicle at a distance from them and two persons including driver were present in the vehicle who tried to run away. He has further stated that police party apprehended both of them and on inquiry identity of accused was found as Sunder Singh and other who was driver disclosed his name as Krishan Lal. He has stated that in routine search of both persons was conducted. He has further stated that Sunil Bekta was also associated as witness and on search of Sunder Singh black coloured substance was recovered from his jacket in the right side pocket kept in polythene. He has stated that on smelling the substance was found to be charas. He has stated that they also tried to associate independent witnesses but no one was available. He has further stated that on weighment charas was found 200 grams and out of this 50 grams was took out which was divided into two packets of 25 grams each. He has also stated that two samples are Mark A-1 and Mark A-2. He has stated that bulk charas was also kept in separate cloth and seal after use was handed over to HC Devinder Nath. He has stated that vehicle No. HP-63-1538 alongwith documents was also took into possession. He has stated that driving licnece of Krishan Lal is Ext.P8 and memo Ext.PW1/B was prepared qua handing over the seal to Devinder Nath. He has further stated that personal search of Krishan Lal was also carried out vide memo Ext.PW1/D and NCB form was filled. He has stated that ruka Ext.PW2/A through C. Bittu was also sent for registration of the case and he prepared site plan Ext.PW10/B as per factual location and also recorded statements of prosecution witnesses as per their version. He has stated that after completion of investigation and after receipt of chemical examiner report he handed over the file to SHO Khazana Ram for preparation of challan. He has stated that Ext.P1 is the charas, Ext.P2 is parcel, Ext.P3 is sample and Ext.P4 is parcel. He has denied suggestion that he did not prepare site plan at the spot and he has also denied suggestion that no charas was recovered from accused Sunder Singh. He has denied suggestion that no sample was took out at the spot. He has stated that Ext.P1 is the charas, Ext.P2 is parcel, Ext.P3 is sample and Ext.P4 is parcel. He has denied suggestion that he did not prepare site plan at the spot and he has also denied suggestion that no charas was recovered from accused Sunder Singh. He has denied suggestion that no sample was took out at the spot. He has stated that village and shops are situated at a distance of ½ K.m. from the spot. 10. Statement of accused recorded under Section 313 Cr.P.C. Accused has stated that he is innocent and he was walking in Theog market on that day and police requested him to come with them to police station and a false criminal case has been filed against him. Accused persons did not lead any defence evidence. (1) Testimony of independent witness is fatal to prosecution case 11. Submission of learned Additional Advocate General appearing on behalf of the State that as per testimonies of prosecution witnesses accused be convicted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the seizure memo Ext.PW1/A placed on record. In seizure memo Ext.PW1/A prosecution has cited Sunil Bekta PW9 and HC Devinder Nath PW1 as marginal witnesses of seizure memo. It is well settled law that contents of seizure memo can be proved by marginal witnesses only. Hence in present case testimonies of PW1 HC Devinder Nath and PW9 Sunil Bekta are very material for just decision of the case. In present case PW9 Sunil Bekta alleged witness of recovery has specifically stated in positive manner that his statement was recorded at police station Theog. He has denied suggestion that charas was recovered in his presence from conscious and exclusive possession of accused. He has denied suggestion that two samples were took out. Independent witness namely PW9 Sunil Bekta did not support the prosecution story as alleged by prosecution. On the contrary another marginal witness of seizure memo PW1 HC Devinder Nath has supported the prosecution story as alleged by prosecution. There is material contradiction between testimonies of PW9 Sunil Bekta and PW1 HC Devinder Nath. Both these witnesses are eye witnesses of seizure memo Ext.PW1/A. In view of contradictory testimony of witnesses of seizure memo it is not expedient in the ends of justice to convict the accused. There is material contradiction between testimonies of PW9 Sunil Bekta and PW1 HC Devinder Nath. Both these witnesses are eye witnesses of seizure memo Ext.PW1/A. In view of contradictory testimony of witnesses of seizure memo it is not expedient in the ends of justice to convict the accused. (2) Testimony of PW1 Devidner Nath is not sufficient to convict the accused in view of contradictory testimony of PW9 Sunil Bekta 12. Submission of learned Additional Advocate General appearing on behalf of the State that PW9 Sunil Bekta did not support the prosecution story because he has received consideration amount from the accused and on this ground testimony of PW9 Sunil Bekta be discarded is also rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that mere suggestion to PW9 that he has received consideration amount from accused is not sufficient to discard testimony of PW9. Submission of learned Additional Advocate General that PW9 Sunil Bekta had resiled from his earlier statement because he has received consideration amount from accused is defeated on the concept of ipse dixit (An assertion made without proof). Prosecution did not adduce any positive cogent and reliable evidence on record in order to prove that PW9 Sunil Bekta had received consideration amount from the accused for resiling from his previous statement. There is no positive cogent and reliable evidence on record in order to prove that PW9 Sunil Bekta had received consideration amount from the accused at any point of time. (3) Testimony of corroborative witness is not sufficient to convict the accused in view of contradictory testimony of marginal witnesses of seizure memo 13. Submission of learned Additional Advocate General appearing on behalf of the State that in view of testimonies of PW2 Bittoo and PW10 ASI Brijender Singh accused be convicted is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that ASI Brijender Singh is the Investigating Officer of the case and is not independent witness. We are also of the opinion that PW2 Bittoo Verma has not been cited as recovery witness in seizure memo Ext.PW1/A and it is well settled law that contents of seizure memo could be proved by way of witness who is signatory of seizure memo only. We are also of the opinion that PW2 Bittoo Verma has not been cited as recovery witness in seizure memo Ext.PW1/A and it is well settled law that contents of seizure memo could be proved by way of witness who is signatory of seizure memo only. We are of the opinion that it is not expedient in the interest of justice to rely upon the testimony of PW2 Bittoo in order to prove the contents of seizure memo Ext.PW1/A in view of the fact that PW2 Bittoo is not signatory to seizure memo Ext.PW1/A. 14. Another submission of learned Additional Advocate General appearing on behalf of the State that Sunil Bekta has admitted his signatures on seizure memo Ext.PW1/A and in view of admission of signatures accused be convicted is also rejected being devoid of any force for the reasons hereinafter mentioned. Court is the opinion that Sunil Bekta has specifically stated in positive manner that his signatures were obtained on seizure memo Ext.PW1/A in police station. Sunil Bekta did not admit the contents of seizure memo Ext.PW1/A placed on record even after lengthy cross examination. 15. Another submission of learned Additional Advocate General appearing on behalf of the State that in view of corroborative evidence adduced by prosecution accused be convicted is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that in absence of proof of substantive evidence it is not expedient in the ends of justice to convict the accused upon corroborative evidence only. It is well settled law that corroborative evidence cannot override the substantive evidence. It is well settled law that recovery of charas should be proved from the exclusive and conscious possession of accused by way of substantive evidence. (4) Non-production of original seal in Court is fatal to the prosecution case 16. In present case prosecution did not produce the original seal in Court. It is the case of prosecution that seal was handed over to PW1 Devinder Nath who has specifically stated that he has not brought the original seal in Court because same was lost. Testimony of PW1 Devinder Nath that seal was lost is not trustworthy and reliable because PW1 Devinder Nath did not file any FIR qua lost of seal. It is the case of prosecution that seal was handed over to PW1 Devinder Nath who has specifically stated that he has not brought the original seal in Court because same was lost. Testimony of PW1 Devinder Nath that seal was lost is not trustworthy and reliable because PW1 Devinder Nath did not file any FIR qua lost of seal. Seal was the property of case and we are of the opinion that PW1 Devinder Nath was under legal obligation to file FIR qua lost of property of the case. No reason has been assigned by PW1 as to why he did not file any FIR qua lost of property of the case. Seal on the sample sent for chemical analysis could not be compared with the original seal. It was held in case reported in Latest HLJ 2011 HP 1195 (DB) titled Nanha vs. State that if original seal is not produced in Court then conviction cannot be recorded. (Also see (1998)8 SCC 449 titled State of Rajasthan vs. Gopal) In present case even no resealing certificate has been given by SHO police station prior to deposit all articles in malkhana. No reason has been assigned by prosecution as to why resealing certificate has not been given by SHO P.S. when contraband was deposited in the malkhana. It is well settled law that when two views are possible then view favourable to accused should be adopted. (See: 1998 (2) S.L.J. 1408 Shashi Pal and others vs. State of HP, 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). It is well settled law that suspicion is not substitute for proof. (See AIR 1993 SC 1892 titled Varkey Joseph vs. State of Kerala and 1996(2) SLJ 890 titled Mulak Raj and others vs. State of Haryana). 17. Submission of learned Additional Advocate General appearing on behalf of the State that it was a chance recovery and compliance of mandatory provision of Section 50 of ND&PS Act was not essential is accepted for the reasons hereinafter mentioned. 17. Submission of learned Additional Advocate General appearing on behalf of the State that it was a chance recovery and compliance of mandatory provision of Section 50 of ND&PS Act was not essential is accepted for the reasons hereinafter mentioned. It is well settled law that in chance recovery compliance of provisions of Section 50 of ND&PS Act is not essential.(See AIR 2003 SC page 7 titled Bharat Bhai Bhagwan Ji Bhai vs. State of Gujarat) It is well settled principle of law that if two reasonable conclusions are possible on the basis of the evidence on record, then appellate Court should not disturb the finding of acquittal recorded by the learned trial Court. (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.) It is also well settled principle of law (i) That Appellant Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible though the view of the appellate Court may be more probable. (ii) That while dealing with a judgment of acquittal Appellant Court must consider entire evidence on record so as to arrive at a finding as to whether views of learned trial Court are perverse or otherwise unsustainable. (iii) That Appellate Court is entitled to consider whether in arriving at a finding of fact, learned trial Court failed to take into consideration any admissible fact (iv) That appellate Court is entitled to consider whether in arriving at findings of fact learned trial Court took into consideration non-admissible evidence. (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. & 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 view of above stated facts we affirm the judgment passed by learned trial Court except the finding that compliance of Section 50 of ND&PS Act was not mandatory in present case. Appeal filed by State is dismissed. Record of learned trial Court be sent back forthwith. Pending miscellaneous application(s) if any also stand disposed of.