JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 28.4.2011 rendered by the Special Judge-II, Solan in Sessions Trial No. 4-S/7 of 2010, whereby the appellant-accused (hereinafter referred to as the ?accused? for convenience sake), who was charged with and tried for offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, he was further ordered to undergo imprisonment for a period of six months. Hence, the present appeal. 2. Case of the prosecution, in a nutshell, is that on 24.11.2009 police party was on Nakka duty at place near Deli. Accused was noticed coming on foot from the side of Timber Trail Resort at 3.15 A.M. on 25.11.2009. Accused tried to escape. He was apprehended. He was taken to a place where Nakka was laid. Accused had concealed bag under his left arm pit. Police had suspicion of some incriminating substance, hence, accused was apprised about his right to be searched before Magistrate or Gazetted Officer vide memo Ex.PW-1/A. Accused consented to be searched by the police party vide memo Ex.PW-1/E. The members of police party afforded their personal search to the accused vide memo Ex.PW-1/C. The bag of accused was searched. It was found to be containing charas in the shape of balls and sticks. Weights and scale were brought by PW-3 HC Baggi Ram. The charas so recovered was weighed. It was found to be 3 kgs 800 grams. The charas was sealed in a parcel with seal =H'. The woolen shawl of accused was also sealed in another parcel with seal =H'. Seizure memo Ex.PW-1/G was prepared. NCB forms in triplicate were filled in. Columns No.1 to 8 were filled in by the Investigating Officer. The Investigating Officer prepared rukka Ex.PW-4/A and the same was sent to Police Station through PW-4 Constable Rajesh Kumar. FIR Ex.PW-6/A was registered. Photographs Ex.PW-3/A to Ex.PW-3/J were taken on the spot. The Investigating Officer prepared the spot map. He handed over the parcel containing charas and other documents to S.H.O. PW-6 Govind Ram. He resealed the property with seal =N'. PW-6 Govind Ram filled in columns No. 9 to 11 of NCB form. Special report Ex.PW-5/A was prepared by PW-6 Govind Ram. Photographs Ex.PW-3/A to Ex.PW-3/J were taken on the spot. The Investigating Officer prepared the spot map. He handed over the parcel containing charas and other documents to S.H.O. PW-6 Govind Ram. He resealed the property with seal =N'. PW-6 Govind Ram filled in columns No. 9 to 11 of NCB form. Special report Ex.PW-5/A was prepared by PW-6 Govind Ram. It was sent to the Superintendent of Police, Solan through PW-5 Constable Kuldeep Singh. The contraband was sent to F.S.L., Junga. The report of F.S.L. Ex.PW-6/G was received. Police investigated the case and the challan was put up in the court after completing all the codal formalities. 3. Prosecution examined as many as 11 witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He has denied the case of the prosecution in entirety. He has produced 4 DWs in support of his defence. Learned trial Court convicted and sentenced the accused, as noticed hereinabove. 4. Mr. Ravinder Thakur, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, leaned Assistant Advocate General has supported the judgment passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record meticulously. 7. PW-1 Ashok Kumar has deposed that he alongwith ASI Ram Lal, Constable Desh Raj, Constable Rajesh Kumar, Constable Gurcharan Singh were on patrolling duty on the intervening night of 24/25.11.2009 at about 3.15 A.M. They were present near village Deli on National Highway-22. In the meantime, a person emerged from the side of Timber Trail Resort. He turned back after noticing the police party. He tried to escape. He was nabbed. He was apprised about his right to be searched either before a Gazetted Officer or a Magistrate or a police party vide Ex.PW-1/A. Accused gave his consent vide Ex.PW-1/B. All the members of the police party afforded their personal search to the accused. Nothing incriminating was recovered from them. Personal search of the accused was conducted. He was carrying a saffron coloured bag under his left arm. It was checked. This bag further contained another bag having zip. The zip was opened. It contained blue coloured bag. Nothing incriminating was recovered from them. Personal search of the accused was conducted. He was carrying a saffron coloured bag under his left arm. It was checked. This bag further contained another bag having zip. The zip was opened. It contained blue coloured bag. This bag further contained a grey coloured plastic bag which was contained a black coloured substance in the shape of balls and sticks. It was found to be charas. Memo Ex.PW-1/D was prepared. ASI Ram Pal gave information through his mobile phone to the Police Station and summoned the weights and scale from the Police Station. H.C. Bagi Rath brought weights and scale on a motorcycle. It weighed 3 kgs 800 grams. The charas was kept in the bag. Thereafter, all the bags were kept in the same manner as found during search. It was sealed with seal =H' at five places. The sample of seal was also drawn on three pieces of cloth, one of which was Ex.PW-1/E. The woolen shawl was also sealed in a separate cloth parcel with seal =H'. NCB form in triplicate was filled in. Photographs of the proceedings were also taken on the spot by H.C. Bhagi Rath vide marks A to H and J. In his cross-examination, he has deposed that he alongwith four other police officials started from Police Station, Parwanoo at about 11.00 P.M. for laying Nakka. The Timber Trail Resort was not visible from Deli. They checked 20-25 vehicles on that day up till 3.00 A.M. No other passenger was apprehended on the relevant day. He has admitted that it was a busy road being National Highway. According to him, there was no shop on the spot where they had laid Nakka. However, there were some shops towards Parwanoo side after about two curves. The shops of market committee were at a distance of about 40-50 meters. The accused was seen from a distance of 15-20 meters. Neither any vehicle was stopped nor any efforts were made to stop the vehicle passing on the road. The accused was pprehended at a distance of about 50 meters away from the spot of Nakka on National Highway. The rukka was prepared after the recovery of contraband. The rukka was taken by Rajesh Kumar to the Police Station, Parwanoo. He did not remember the exact date. Photographs of the proceedings were taken on the spot. The accused was pprehended at a distance of about 50 meters away from the spot of Nakka on National Highway. The rukka was prepared after the recovery of contraband. The rukka was taken by Rajesh Kumar to the Police Station, Parwanoo. He did not remember the exact date. Photographs of the proceedings were taken on the spot. Photographs were taken before preparation of seizure memo and photographs of proceedings of seizure were also taken. Photographs were taken as per proceedings on the spot and not simultaneously. 8. PW-2 Desh Raj has also deposed the manner in which accused was apprehended, his personal search was carried out, the contraband was recovered and the sampling process was completed on the spot. In his cross-examination, he has admitted that there were 5-6 shops at Deli. They had checked 3-4 buses on that day on the spot. He has also admitted that there were 4-5 hotels or restaurants in between Police Station, Parwanoo and Timber Trail Resort. The accused was apprehended at a distance of 30-40 steps from police Nakka. The proceedings were conducted with the help of search light and head light of the Government vehicle. The rukka was sent through Constable Rajesh Kumar at about 4.45 A.M. He came back from Police Station within 30-45 minutes. 9. PW-3 H.C. Baggi Ram has deposed that MHC Prem Singh informed him that he has to deliver weights and scale to ASI Ram Lal at place near Deli on National Highway-22. He carried weights and scale to the spot. He delivered the same to ASI Ram Lal. He also clicked the photographs marks A to J (Ex.PW-3/A to Ex.PW-3/J). He has admitted in his cross-examination that there were residential houses near Deli shops. The distance between place of Nakka and Timber Trail Resort was 100 meters. The Timber Trail Resort was not visible from the place of Nakka since there was a curve. He has admitted that so many buses passed on National Highway when they were conducting proceedings on the spot. No efforts were made to stop these vehicles. The gap between first photograph and the last photograph taken by him was about 10 minutes. First photograph was taken at 3.55 A.M. He had not brought the camera since it was already with ASI Ram Lal. 10. No efforts were made to stop these vehicles. The gap between first photograph and the last photograph taken by him was about 10 minutes. First photograph was taken at 3.55 A.M. He had not brought the camera since it was already with ASI Ram Lal. 10. PW-4 Rajesh Kumar has also deposed the manner in which the accused was apprehended, search and sampling process was completed. In his cross-examination, he has deposed that he proceeded to Police Station from the spot alongwith rukka at 4.45 A.M. and returned back after 45 minutes. They checked 8-9 vehicles on that day, including 3-4 buses. They left the spot of Nakka at about 9.15 A.M. after the proceedings were over. They checked one bus of Chandigarh Transport. He did not remember the registration number of the vehicle. The bus was full. It was checked at about 12 -1.00 A.M. 11. Statement of PW-5 Kuldeep Singh is formal in nature. 12. PW-6 Inspector Govind Ram has deposed that on 25.11.2009 Rukka Ex.PW-4/A was prepared and the same was received in the Police Station through Constable Rajesh Kumar. He recorded FIR Ex.PW-6/A. The case file was sent to ASI Ram Lal for further investigation. ASI Ram Lal handed over to him a parcel duly sealed with five seal impression =H' at 9.35 A.M. stated to be containing 3 kgs 800 grams charas alongwith NCB form in triplicate, sample of seal and other documents. He re-sealed the parcels in a separate cloth parcel with seal =N' at five places. He filled in columns No. 9 to 11 of NCB form. The parcel alongwith NCB form was handed over to MHC for safe custody. On 25.11.2009, he also prepared the special report in duplicate and sent the same to the Superintendent of Police, Solan through constable Kuldeep. In his cross-examination, he has admitted that rukka was received by him at about 3.15 A.M. on 25.11.2009. ASI Ram Lal deposited case property with him at 9.35 A.M. He has also admitted that Kalka-Shimla road is a busy road and vehicles frequently pass on it during day and night. He has also admitted that there were shops in Deli Bazaar. Parwanoo Bazaar was at a distance of 2 KMs from Deli Bazaar. 13. ASI Ram Lal deposited case property with him at 9.35 A.M. He has also admitted that Kalka-Shimla road is a busy road and vehicles frequently pass on it during day and night. He has also admitted that there were shops in Deli Bazaar. Parwanoo Bazaar was at a distance of 2 KMs from Deli Bazaar. 13. PW-7 H.C. Prem Singh has deposed that on 25.11.2009 S.H.O. Govind Ram deposited with him a parcel duly sealed with seal =N' at five places stated to be containing charas. He made entry at Sr. No.425 of the Malkhana register. ASI Ram Lal deposited with him another parcel duly sealed with seal =H' at three places stated to be containing a woolen shawl. The contraband was sent to F.S.L. Junga through Constable Santosh Kumar. 14. Statement of PW-8 H.C. Yadav Chand is formal in nature. 15. PW-9 Santosh has deposed that MHC Prem Singh handed over to him a parcel duly sealed with five seal impressions of seal =N' alongwith sample of seal =H' and NCB form, copy of FIR and recovery memo vide RC No.87/09. He deposited the same at F.S.L. Junga. As long as the parcel remained with him, it remained safe and intact. 16. PW-10 Sri Chand in his cross-examination has admitted that there were some shops in Deli and residential houses. He has admitted that on both the sides of road from Deli to Parwanoo, there were shops and habitation. 17. PW-11 Ram Lal has deposed the manner in which the accused was apprehended, search, seizure and sampling process was completed on the spot. He filled in columns No. 1 to 8 of NCB form. He prepared rukka Ex.PW-4/A and the same was sent to Police Station through Constable Rajesh Kumar, which led to registration of FIR Ex.PW-6/A. Photographs of the proceedings were also taken. He prepared spot map Ex.PW-11/A. He handed over the contraband to S.H.O. Govind Ram, who re-sealed the same with seal =N' and also filled in NCB form and issued Ex.PW-6/E. In his cross-examination, he has deposed that they checked 100-150 vehicles approximately on that night upto 3.00 A.M. The Nakka was laid near Dharam Kanta on National Highway. They had noticed the accused coming from T.T.R. side from a distance of approximately 14-15 meters. The time gap between first photograph and the last photograph was about one hour. There were shops in Deli. They had noticed the accused coming from T.T.R. side from a distance of approximately 14-15 meters. The time gap between first photograph and the last photograph was about one hour. There were shops in Deli. There were shops on both the sides of road from Deli to Patwanoo. He has admitted that there was vehicular traffic on National Highway. Volunteered that the traffic was less as compared to day time. He has denied the suggestion that accused was travelling in a C.T.U. bus. 18. The accused has also examined four DWs. DW-1 Rishi Pal was driver of C.T.U. bus No. CH-01G-8871. The bus left from Shimla. They stopped for dinner near Dharampur at Sanwara. They reached at Parwanoo around 1-1.30 A.M. Conductor No. 826 of Depot No.1 was accompanying him as a conductor. The bus was full. The accused was travelling in the bus. The accused was apprehended by the police from the bus. Their signatures were obtained on some papers by the police at Parwanoo. In his cross-examination, he has admitted that he was posted at Bus Stand Sector-17 for the last one year. Before this posting, he remained posted in workshop as supervisor. 19. DW-2 Surjeet Singh was working as conductor in Chandigarh Transport Undertaking. He has deposed that at about 10.30 P.M. on 24.11.2009, they started journey from Shimla to Chandigarh. DW-1 Rishi Pal was driving the bus. The police officials checked the bus at Parwanoo and accused was taken away by them. 20. DW-3 Sandeep Kumar was also traveling in the C.T.U bus. He has deposed that the bus left Shimla at about 10.45 P.M. Accused was also travelling in the bus from Shimla. DW-1 Rishi Pal was driver and DW-2 Surjeet Singh was conductor of the bus. He has denied the suggestion that accused was not travelling in the bus and he was not apprehended by the police at Parwanoo. 21. DW-4 Harminder Singh has deposed that as per yard control register, bus No. CH-01G-8871 left Chandigarh for Shimla on 24.11.2009 at 5 p.m. The bus left Shimla for Chandigarah at about 11 : 30 p.m. on the same day. It reached at Chandigarh on 25.11.2009 at 3 p.m. The entries qua departure and arrival were recorded in the register. In his cross-examination, he has admitted that as per record, the complete registration of the vehicle is not mentioned. It reached at Chandigarh on 25.11.2009 at 3 p.m. The entries qua departure and arrival were recorded in the register. In his cross-examination, he has admitted that as per record, the complete registration of the vehicle is not mentioned. The names of drivers and conductors were not entered and only their numbers were mentioned. 22. According to PW-1 Ashok Kumar, Rukka was prepared after the recovery of contraband and it was taken by Constable Rajesh Kumar to Police Station, Parwanoo. PW-2 Constable Desh Raj had deposed that Ruqua was sent with Rajesh Kumar at about 4:45 a.m. He came back from Police Station within 30-45 minutes. They remained on the spot upto 9 a.m. approximately. PW-4 Rajesh Kumar has deposed that he proceeded to Police Station from the spot at 4:45 a.m. and came back after 45 minutes. PW-11 Ram Lal has also deposed that rukka was prepared by him vide Ext. PW4/A and the same was sent to the Police Station through Rajesh Kumar. According to statements of PW-2 Desh Raj and PW-4 Rajesh Kumar, Rukka was carried to the Police Station at 4:45 a.m. PW-6 Govind Ram, in his cross-examination, has specifically admitted that rukka was received by him at 3:15 a.m. on 25.11.2009. If the rukka itself has been sent at 4:45 a.m. through PW-4 Rajesh Kumar how it could be received by PW-6 Govind Ram at 3:15 a.m. It demolishes the entire case of the prosecution. 23. Admittedly, no independent witness has been associated by the Police during nabbing, seizure and sampling process on the spot. PW-1 Ashok Kumar, in his cross-examination, has admitted that there were one or two factories and some godowns near market committee's shops. He has also deposed that they had checked 20-25 vehicles on that day till 3 a.m. He has also admitted that it is a busy road being a national highway. PW-2 Desh Raj has also admitted that there were 4-5 hotels or restaurants in between Police Station, Parwanoo and Timber Trail Resort. They had checked 3-4 buses on that day on the spot. PW-3 Baggi Ram has also deposed that so many buses passed on the national highway when they were conducting the proceedings on the spot. No efforts were made to stop those vehicles by the Investigating Officer. He has also admitted that there were residential houses near Deli shops. They had checked 3-4 buses on that day on the spot. PW-3 Baggi Ram has also deposed that so many buses passed on the national highway when they were conducting the proceedings on the spot. No efforts were made to stop those vehicles by the Investigating Officer. He has also admitted that there were residential houses near Deli shops. The distance between Timber Trail Resort and the place where the nakka was laid was 100 mtrs. PW-11 Ram Lal has deposed that there was regular traffic on the national highway. However, despite the residential houses and shops being available near the place where the accused was apprehended, no efforts were made to associate the independent witnesses. The nakka was laid on the national highway. According to PW-11 Ram Lal himself, approximately 100-150 vehicles were checked by him upto 3 a.m. PW-7 Prem Singh has deposed that 20-25 vehicles were checked on the nakka. Drivers/conductors or passengers of the buses could be associated as independent witnesses. It cannot, thus, be termed as an isolated place where the availability of independent witness was remote. The police has not made any effort whatsoever to associate independent witnesses. It is not the case of the prosecution that the efforts were made and independent witnesses were not available on the spot. PW-3 Baggi Ram has photographed the spot. According to him, the photographs were taken as per the proceedings conducted on the spot. The gap between first photograph and the last photograph was about 10 minutes. The first photograph was taken at 3:55 p.m. PW-11 Ram Lal has deposed that the time gap between first photograph and the last photograph was about 1 hour. It also casts doubt on the prosecution version the manner in which photographs were taken on the spot. Thus, the prosecution has failed to prove that contraband was recovered from exclusive and conscious possession of the accused by not associating independent witnesses. We have already noticed that Rukka as per statement of PW-2 Desh Raj and PW-4 Rajesh Kumar was taken to Police Station at 4:45 a.m. PW-6 S.H.O. Govind Ram has testified that Rukka was received at 3:15 a.m. FIR was registered on the basis of Rukka. 24. We have already noticed that Rukka as per statement of PW-2 Desh Raj and PW-4 Rajesh Kumar was taken to Police Station at 4:45 a.m. PW-6 S.H.O. Govind Ram has testified that Rukka was received at 3:15 a.m. FIR was registered on the basis of Rukka. 24. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the case for offence under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 beyond reasonable doubt against the accused. 25. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 28.4.2011 rendered in Sessions Trial No. 4-S/7 of 2010 is set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case. 26. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.