JUDGMENT P.S. Rana, J. Present appeal is filed by the State under Section 378 of Code of Criminal Procedure 1973 against the judgment passed by learned Sessions-cum-Special Judge Solan under Narcotic Drugs and Psychotropic Substances Act in Sessions Trial No. 4-S/7 of 2006 titled State vs. Kurban Khan. BRIEF FACTS OF THE PROSECUTION CASE: 2. Brief facts of the case as alleged by prosecution are that on dated 11.11.2005 at about 4.05 PM in Guru Nanak restaurant at Dedgharat accused was found in conscious and exclusive possession of 4 Kg. 500 grams of poppy husk. It is alleged by prosecution that PW12 Het Ram HC CIA Staff Solan along with HC Hardev, C. Chhabil Kumar, C. Ajay Kumar and C. Rajesh Kumar on dated 11.11.2005 at about 3.55 PM were on patrolling duty at Kandaghat where they received a secret information that person in Guru Nanak restaurant at Dedgharat was selling poppy husk. It is further alleged by prosecution that on receipt of secret information reason of belief sent to S.P. Solan through C. Rajesh Kumar. It is further alleged by prosecution that thereafter PW12 HC Het Ram associated independent witnesses Dhian Singh and Gulshan Kumar PW11 and proceeded towards Dedgharat and reached Guru Nanak restaurant at about 4.30 PM. It is further alleged by prosecution that accused was standing on counter of restaurant. It is further alleged that thereafter accused was apprised about his right to be searched by a Magistrate or gazetted officer. It is alleged by prosecution that thereafter raiding party had given their personal search to the accused vide memo Ext.PW9/A. It is further alleged by prosecution that thereafter restaurant was searched in presence of witnesses and from the kitchen a tin was found concealed under a wooden plank containing a bag. It is further alleged by prosecution that in tin poppy husk measuring 4 Kg. 500 grams was kept. It is further alleged by prosecution that thereafter two samples of 500 grams each were taken out from the recovered poppy husk for sample purpose and were sealed with seal impression ‘H’. It is also alleged by prosecution that NCB form also filled and thereafter seal after use was handed over to witness Dhian Singh. It is further alleged by prosecution that site plan Ext.PW12/E was prepared. It is also alleged by prosecution that NCB form also filled and thereafter seal after use was handed over to witness Dhian Singh. It is further alleged by prosecution that site plan Ext.PW12/E was prepared. It is further alleged that thereafter ruka Ext.PW9/C was sent to P.S. for registration of FIR Ext.PW10/A and thereafter grounds of arrest were prepared vide memo Ext.PW12/F. It is also alleged that thereafter case property along with NCB form and sample of seal deposited with Brij Lal. It is further alleged by prosecution that special report was prepared and sent to S.P. Solan regarding search and seizure and sample parcel with NCB form and seal impression sent to CTL Kandaghat through HHC Ramji Dass. It is alleged by prosecution that thereafter Chemical Examiner report Ext.PZ was obtained. 3 Learned trial Court framed charge against the accused under Section 15(b) of 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 LC Vijay Negi PW2 Rajesh Kumar PW3 Vinod Kumar PW4 Yogender Singh PW5 Ramji Dass PW6 Babu Ram PW7 Brij Lal PW8 Surender Pal PW9 Chhabil Kumar PW10 Sohan Singh PW11 Gulshan Kumar PW12 Het Ram 4.1 Prosecution also produced following piece of documentary evidence in support of its case:- Sr.No. Description: Ex.PW1 /A. Rapat no. 4 dated 26.12.2006 Ex.PW2 /A. Information under Section 42(2) of NDPS Act Ex.PW3/A Resealing certificate Ex.PW4/A Special Report Ex.PW7/A Extract of Malkhana register Ex.PW7/B Copy of Road Certificate Ex.PW7 /C Copy of road certificate Ex.PW9 /A Search memo Ex.PW9 /B Recovery memo Ext.PW9 /C. Rukka Ex t.PW10 /A Copy of FIR Ext.PW10 /B Certificate regarding possession and resealing of case property Ex.PW10 /C Sample impression of seal on the piece of cloth Ext.PW11 /A Consent memo Ext.PW11/B Identification memo Ext.PW12/A Sample impression of seal on piece of cloth Ext.PW1 2 /B NCRB Forms Ext.PW1 2 /C Receipt of seal Ext.PW1 2 /D Memo of seal ‘H’ Ext.PW12/E Spot map Ext.PW12/F Arrest information memo Ext.PW12/G Statement under Section 161 Cr.P.C. of Gulshan Kumar for contradiction purpose. 5. Learned trial Court acquitted accused qua offence punishable under Section 15(b) of ND&PS Act. Feeling aggrieved against the judgment passed by learned Sessions-cum-Special Judge Solan State of H.P. filed present appeal. 6. 5. Learned trial Court acquitted accused qua offence punishable under Section 15(b) of ND&PS Act. Feeling aggrieved against the judgment passed by learned Sessions-cum-Special Judge Solan State of H.P. filed present appeal. 6. 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. 7. Question that arises in present 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 as mentioned in memorandum of grounds of appeal. ORAL EVIDENCE ADDUCED BY PROSECUTION: 8.1. PW1 Lady C. Vijay Negi has stated that in the year 2005 she was posted as M.C. CIA Staff Solan. She has brought the original roznamcha dated 11.11.2005 rapat No. 4 with her. She has stated that copy of rapat is Ext.PW1/A. 8.2 PW2 C. Rajesh Kumar has stated that in the year 2005 he was posted as Constable in CIA staff Solan and on dated 11.11.2005 he along with HC Het Ram, C. Ajay Kumar, C. Chhabil Kumar and HHC Ajit were on patrolling duty and were present at Kandaghat. He has stated that HC Het Ram received secret information that on National Highway in Guru Nanak restaurant one person namely Kurban Khan who was running restaurant was dealing in the trade of poppy husk. He has further stated that in case raid is conducted poppy husk could be recovered. He has further stated that on receipt of secret information HC Het Ram prepared reason of belief and same was handed over to Reader of SP Solan. He has stated that copy of reason of belief is Ext.PW2/A. He has denied suggestion that no reason of belief was prepared in his presence. He has denied suggestion that he did not take reason of belief to S.P. office Solan. 8.3 PW3 Vinod Kumar has stated that he is running a restaurant on National Highway near Dedgharat Kandaghat in the name of Guru Nanak Restaurant for the last four years. He has stated that accused Kurban Khan was employed as cook in the said restaurant for the last three years. He has stated that document Ext.PW3/A bears his signatures. 8.3 PW3 Vinod Kumar has stated that he is running a restaurant on National Highway near Dedgharat Kandaghat in the name of Guru Nanak Restaurant for the last four years. He has stated that accused Kurban Khan was employed as cook in the said restaurant for the last three years. He has stated that document Ext.PW3/A bears his signatures. 8.4 PW4 HC Yoginder Singh has stated that on dated 11.11.2005 C. Rajesh Kumar CIA Staff Solan brought reasons of belief Ext.PW2/A in the office of S.P. Solan and he produced the same before S.P. Solan who after perusing the same appended his report and signatures and handed over the same alongwith carbon body. He has stated that he has brought original reason of belief with him. He has further stated that on dated 12.11.2005 C. Ajay Kumar of CIA Staff Solan brought special report to the office of S.P. Solan. He has stated that special report is Ext.PW4/A. He has denied suggestion that reason of belief Ext.PW2/A was not received in the office of S.P. Solan. He has stated that no separate register is maintained in the office of S.P. Solan for entering the special report Ext.PW4/A. He has denied suggestion that special report was not received in the office of S.P. Solan. 8.5 PW5 HHC Ramji Dass has stated that for the last two years he was posted at P.S. Kandaghat. He has stated that on dated 14.11.2005 MHC Brij Lal handed over one docket along with RC No. 59/05 and sample of seal and NCB form to be deposited with CTL Kandaghat. He has stated that he took back all documents and samples and returned the same to MHC Brij Lal. He has further stated that he again handed over aforesaid documents and samples of poppy husk and directed him to deposit the same at FSL Junga on the same day. He has stated that officials of FSL Junga refused to receive and he again came back and he handed over all documents and sample of poppy husk to MHC Brij Lal. He has stated that documents and sample of poppy husk remained non-tampered during his custody. He has denied suggestion that no sample was handed over to him along with NCB form. He has stated that documents and sample of poppy husk remained non-tampered during his custody. He has denied suggestion that no sample was handed over to him along with NCB form. 8.6 PW6 HHC Babu Ram has stated that for the last two years he is posted as HHC at P.S. Kandaghat and on dated 28.11.2005 MHC P.S. Kandaghat Brij Lal handed over to him one sealed sample parcel and sample seales ‘H’ and ‘P’, one docket and RC No. 61/05 and NCRB forms to be deposited in CTL Kandaghat which he deposited on the same date in the laboratory. He has further that receipt of same was obtained on road certificate and sample parcel remained intact and remained non-tampered so far they remained with him. He has denied suggestion that case property was not deposited in CTL Kandaghat. 8.7 PW7 HC Brij Lal has stated that he remained posted as MHC at P.S. Kandaghat in the year 2005 and on dated 11.11.2005 SI/SHO Sohan Singh deposited with him sealed parcels three in nature. He has stated that bulk parcel was containing 3 Kg. 500 grams poppy husk and two sample parcels were also sealed with seal impressions ‘H’ and ‘P’. He has stated that one tin which was marked R2 was also deposited along with NCB form and he entered the case property in malkhana register. He has stated that case property remained intact in his custody. He has denied suggestion that case property was not produced before SHO P.S. Kandaghat. 8.8 PW8 SI/SHO Surender Pal has stated that he remained posted as SHO at P.S. Kandaghat from June 2006 and after completion of investigation he prepared challan. 8.9 PW9 Chhabil Kumar has stated that he remained posted as Constable in CIA Staff Solan during the year 2005. He has stated that on dated 11.11.2005 he along with HC Het Ram, C. Ajay Kumar, C. Rajesh Kumar and HHC Hardev Kumar were present at Kandaghat chowk in connection with patrolling and checking. He has stated that two persons had given information to HC Het Ram that they had to go to Dedgharat to recover poppy husk. He has stated that then they went to Dedgharat and then went to restaurant of Kurban Khan at Dedgharat. He has stated that two persons Gulshan Kumar and Dhian Singh were also with them. He has stated that two persons had given information to HC Het Ram that they had to go to Dedgharat to recover poppy husk. He has stated that then they went to Dedgharat and then went to restaurant of Kurban Khan at Dedgharat. He has stated that two persons Gulshan Kumar and Dhian Singh were also with them. He has further stated that when they reached Dedgharat at 4 PM accused was present in restaurant and thereafter accused disclosed his name and thereafter police officials have given their personal search to accused and memo Ext.PW9/A was prepared. He has further stated that thereafter restaurant was searched and from kitchen room where utensils used to be washed, there was one plank under which a pit was dug and inside the pit one container was kept. He has stated that in the container poppy husk was kept measuring 4 Kg. 500 grams. He has stated that two samples of 500 grams each were took out and sealed in separate parcels. He has stated that seal after use was handed over to witness. He has further stated that recovery memo Ext.PW9/B was prepared. He has stated that HC Het Ram prepared Ruka Ext.PW9/C and thereafter he had given ruka to MHC Kandaghat. He has denied suggestion that witnesses Dhian Singh and Gulshan Kumar were not present. He has denied suggestion that poppy husk was not weighed and he has also denied suggestion that no poppy husk was recovered from accused. 8.10 PW10 ASI Sohan Singh has stated that in the month of November 2005 he was posted as ASI P.S. Kandaghat and on dated 11.11.2005 SHO was out of station and he was having official charge of P.S. Kandaghat. He has stated that C. Chabbil Kumar prepared ruka Ext.PW9/C and on the basis of Ruka FIR Ext.PW10/A was registered. He has further stated that one sealed parcel having seal ‘H’ containing 3.5 Kg. of poppy husk and two sealed parcels with sample seal containing samples of poppy husk weighing 500 grams produced and he affixed his own seal on all these three parcels for the purpose of resealing and issued resealing certificate Ext.PW10/B. He has stated that he also took the sample impression of the seal. He has denied suggestion that no sealed parcels were produced before him for the purpose of resealing. He has denied suggestion that no sealed parcels were produced before him for the purpose of resealing. 8.11 PW11 Gulshan Kumar has stated that about one year ago he was in Kandaghat market and three police officials of CIA Staff met him and asked him to accompany them. He has stated that accused was present in restaurant and he reached in restaurant at 4.30 PM and further stated that CIA staff took search of the restaurant. He has further stated that tin was kept outside the restaurant. The witness was declared hostile by prosecution. He has denied suggestion that canister was recovered from kitchen of restaurant. 8.12 PW12 HC Het Ram has stated that on dated 11.11.2005 he along with HC Hardev, C. Chhabil Kumar, C. Ajay Kumar, C. Rajesh Kumar were present at Kandaghat in connection with patrolling and checking. He has stated that he received secret information and prepared reason of belief Ext.PW2/A and sent to S.P. office Solan through C. Rajesh Kumar. He has stated that he associated witnesses Dhian Singh and Gulshan Kumar and proceeded to Dedgharat. He has stated that when he reached at Guru Nanak restaurant at Dedgharat at 4/5 PM accused was standing in the counter. He has stated that he apprised about the secret information. He has further stated that accused was apprised of his right to be searched before a Magistrate or a Gazetted Officer, but accused agreed to be searched before police officials. He has stated that thereafter police officials have given their personal search to accused and thereafter restaurant was searched in presence of accused and witnesses. He has stated that from kitchen where utensils used to be cleaned a canister was concealed beneath the wooden plank. He has further stated that 4 Kg. 500 grams of poppy husk was found. He has stated that two samples of 500 grams each were took out and sealed it on separate cloth parcel and he prepared spot map. He has stated that thereafter case property was deposited with SHO. He has stated that he also prepared special report Ext.PW4/A and sent it to S.P. Office Solan through C. Ajay Kumar. He has stated that on completion of investigation case file was handed over to SHO and further stated that case property i.e. sample Ext.P1, bulk of poppy husk Ext.P2 and canister Ext.P3 were recovered from restaurant of accused. He has stated that he also prepared special report Ext.PW4/A and sent it to S.P. Office Solan through C. Ajay Kumar. He has stated that on completion of investigation case file was handed over to SHO and further stated that case property i.e. sample Ext.P1, bulk of poppy husk Ext.P2 and canister Ext.P3 were recovered from restaurant of accused. He has denied suggestion that police officials did not give their personal search. He has denied suggestion that canister was not recovered from the kitchen and he has denied suggestion that canister was lying outside the restaurant. He has denied suggestion that all documents prepared at later stage and also denied suggestion that no NCB form was filled up and also denied suggestion that no sealing process took place and further denied suggestion that no poppy husk was recovered from possession of accused. 9. Statement of accused was recorded under Section 313 Cr.P.C. Accused has stated that nothing was recovered from the restaurant and further stated that there were 2/3 servants besides the owner of restaurant and all of them were residing in same restaurant in night time. Accused has stated that he is innocent and he has been falsely implicated in present case. Initially accused stated that he would lead defence evidence, but later on accused did not lead any defence evidence. Testimony of independent witness Gulshan Kumar is fatal to the prosecution in present case 10. It is the case of prosecution that 4 Kg. 500 grams poppy husk was recovered from exclusive and conscious possession of accused which was kept in kitchen of restaurant as shown in site plan Ext.PW12/E in presence of independent witnesses Dhian Singh and Gulshan Kumar. Prosecution has prepared seizure memo Ext.PW9/B placed on record. The marginal witnesses of seizure memo Ext.PW9/B placed on record are Dhian Singh and Gulshan Kumar. Prosecution examined one marginal witness of seizure memo Gulshan Kumar as PW11. We have carefully perused the testimony of PW11 Gulshan Kumar who was marginal witness of seizure memo. PW11 has specifically stated in positive manner that tin was kept outside the restaurant when he reached there and he has denied suggestion that poppy husk was recovered from kitchen of restaurant in a canister. PW11 Gulshan Kumar did not support the prosecution story as alleged by prosecution. PW11 has specifically stated in positive manner that tin was kept outside the restaurant when he reached there and he has denied suggestion that poppy husk was recovered from kitchen of restaurant in a canister. PW11 Gulshan Kumar did not support the prosecution story as alleged by prosecution. Hence it is held that testimony of PW 11 Gulshan Kumar has become fatal to prosecution case. Non-examination of another marginal witness Dhian Singh is also fatal to prosecution case 11. In present case another marginal witness of seizure memo Ext.PW9/B is Dhian Singh. Prosecution did not examine Dhian Singh when Gulshan Kumar did not support the prosecution story. No reason has been assigned by prosecution as to why prosecution did not examine another marginal witness of seizure memo Ext.PW9/B namely Dhian Singh when Gulshan Kumar PW11 did not support the prosecution story as alleged by prosecution. Learned Public Prosecutor namely Ashwani Kumar on dated 26.12.2006 did not examine PW Dhian Singh who was present in Court on dated 26.12.2006 on the ground that Dhian Singh witness was won over by accused. Plea for his non-examination that Dhian Singh another marginal witness who was present in Court on dated 26.12.2006 was won over by accused is not sufficient. It is well settled law that due opportunity is given to prosecution to cross examine the eye witness who is declared hostile by prosecution. No reason has been assigned by prosecution as to why prosecution did not examine another independent marginal witness Dhian Singh when he was present in Court on dated 26.12.2006 by way of declaring him hostile or by way of cross examining him on relevant facts. Hence it is held that non-examination of Dhian Singh another marginal witness of seizure memo is also fatal to prosecution in present case. Testimonies of PW9 Chhabil Kumar and PW2 Rajesh Kumar are not helpful to prosecution case as PW9 Chhabil Kumar and PW2 Rajesh Kumarare not marginal witnesses of seizure memo Ext.PW9/B. 12. Submission of learned Additional Advocate General appearing on behalf of the State that accused be convicted in present case on testimonies of police officials namely PW9 Chhabil Kumar and PW2 C. Rajesh Kumar is rejected being devoid of any force for the reasons hereinafter mentioned. Submission of learned Additional Advocate General appearing on behalf of the State that accused be convicted in present case on testimonies of police officials namely PW9 Chhabil Kumar and PW2 C. Rajesh Kumar is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the testimonies of PW9 Chhabil Kumar and PW2 C. Rajesh Kumar and we have also carefully perused seizure memo Ext.PW9/B. PW9 Chhabil Kumar and PW2 C. Rajesh Kumar are not marginal witnesses of seizure memo Ext.PW9/B. It is well settled law that contents of document should be proved by way of marginal witnesses of document only. As PW9 Chhabil Kumar and PW2 C. Rajesh Kumar are not marginal witnesses of seizure memo Ext.PW9/B we are of the opinion that it is not expedient in the ends of justice to rely upon the testimonies of PW9 Chhabil Kumar and PW2 C. Rajesh Kumar who are not marginal witnesses of seizure memo Ext.PW9/B. It is well settled law that contents of document should be proved by examination of marginal witnesses only as per Indian Evidence Act 1872. As per Section 61 of Indian Evidence Act 1872 contents of documents should be proved by way of primary evidence only and it is well settled law that contents of document should be proved by testimonies of marginal witnesses only as per Indian Evidence Act 1872. In view of contradictory testimony of PW11 Gulshan Kumar it is not expedient in the ends of justice to convict the accused solely on the testimonies of PW9 Chhabil Kumar and PW2 C. Rajesh Kumar who are not signatories to seizure memo of poppy husk Ext.PW9/B placed on record. Non-access of third person in kitchen not proved beyond reasonable doubt by prosecution in present case which is fatal to the prosecution case 13. It is the case of prosecution that poppy husk was recovered from utensils wash room and it is the case of prosecution that plank was kept and under the plank there was pit and in the pit there was one canister containing 4 kg 500 grams poppy husk. There is no evidence on record in order to prove that place where alleged poppy husk was recovered was accessible to accused only. Accused has stated in his statement under Section 313 Cr.P.C. that there were 2/3 additional servants in restaurant along with owner of restaurant. There is no evidence on record in order to prove that place where alleged poppy husk was recovered was accessible to accused only. Accused has stated in his statement under Section 313 Cr.P.C. that there were 2/3 additional servants in restaurant along with owner of restaurant. Involvement of third person could not be ruled out in present case in view of the fact that 2/3 additional servants and owner of restaurant were also accessible to the place of alleged recovery and access of third person could not be ruled out in the present case to the place of alleged recovery. Original seal not produced in Court for comparison purpose which is fatal to prosecution case 14. In present case prosecution did not produce original seal in Court in order to compare the original seal with sample seal of parcel. It is held that non-production of original seal in Court for the purpose of comparison is fatal to the prosecution case. (See: Latest HLJ 2011 HP 1195 (DB) titled Nanha vs. State; Also see (1998) 8 SCC 449 titled State of Rajasthan vs. Gopal.) The accused is entitled for benefit of two views theory:- 15. In present case two views have emerged. Independent witness Gulshan Kumar has stated that poppy husk was not recovered in his presence from exclusive and conscious possession of accused and he has stated in positive manner that canister of poppy husk was kept outside the restaurant when he reached at restaurant. On the contrary PW9 Chhabil Kumar and PW2 C. Rajesh Kumar have stated that poppy husk was recovered from utensils wash room. It was held in case reported in 1998 (2) S.L.J. 1408 Shashi Palando the rs 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. It is well settled principle of law that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. It is well settled principle of law that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the 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 considered any admissible fact and (iv) That learned trial Court failed to take into consideration evidence brought on record contrary to law. (See AIR1974SC2165titledBalakRamand another vs. State of U.P., See (2002) 3 SCC 57 , titled A arakha 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 Krishnavs. 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.) 16. In view of above stated facts, it is held that learned trial Court did not commit any miscarriage of justice and it is held that learned trial Court has properly appreciated oral as well as documentary evidence placed on record. Appeal filed by State is dismissed and judgment passed by learned trial Court is affirmed. Appeal stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.