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Himachal Pradesh High Court · body

2014 DIGILAW 1829 (HP)

Inder Singh v. State of H. P.

2014-12-05

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Justice Rajiv Sharma, J. This appeal is instituted against the judgment dated 21.12.2010, rendered by the learned Sessions Judge (Special Judge), Shimla, H.P., in N.D.P.S. Case No. 32-S-7 of 2009, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. One lac and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year. 2. The case of the prosecution, in a nut shell, is that on 1.11.2009, PW-10 Inspector Ram Kumar, SV & ACB (SIU), Shimla in connection with patrol duty had left for Habban, Sirmour via Theog-Chaila in official vehicle No. HP- 07A-0680. PW-7 Inspector Virender Chauhan, PW-8 HHC Mahinder Singh and PW-9 HC Man Singh, were accompanying PW-10 Inspector Ram Kumar. When PW-7 to PW-10 crossed Village Naina and had been at some distance from Naripul, at about 11:30 AM, one person was noticed coming on foot from opposite direction. That person was carrying one airbag of blue colour on his right shoulder. He was also carrying one empty cement bag containing something in his left hand. PW-10 Inspector Ram Kumar directed PW-6 Yog Raj to stop the vehicle. PW-10 Inspector Ram Kumar wanted to know the area from the pedestrian. The person got perplexed and took U turn. PW-10 Inspector Ram Kumar suspected said person to be in possession of charas. He was apprehended. PW-1 Rajesh Verma in his Santro Vehicle had been on his way from Chaila to Solan via Neripul. PW-10 Inspector Ram Kumar and his team signaled him to stop the Car. PW-10 Inspector Ram Kumar stepped out of the vehicle. In the presence of PW-1 and PW-7 to PW-9, PW-10 Ram Kumar had given option of search before the Magistrate or Gazetted Officer to the accused vide memo Ext. PW-1/A. The accused consented for search before the local police party vide consent memo Ext. PW-1/A. The bag was checked. It contained charas Ext. P-3 in the shape of billets and balls. There was another bag Ext. P-6 in bag Ext. P-2. Bag Ext. P-6 contained one scale Ext. P-7, two weights of 50 gms each Ext. P-8 and Ext. P-9, one weight of 10 gms, Ext. PW-1/A. The bag was checked. It contained charas Ext. P-3 in the shape of billets and balls. There was another bag Ext. P-6 in bag Ext. P-2. Bag Ext. P-6 contained one scale Ext. P-7, two weights of 50 gms each Ext. P-8 and Ext. P-9, one weight of 10 gms, Ext. P-10, one weight of 20 gms, Ext. P-11 one weight of 5 gms Ext. P-12 and one weight of 100 gms Ext. P-13. The empty cement bag Ext. P-14 was containing one scale with steel pot Ext. P-15, one weight of 1 kg Ext. P-16 and one weight of 2 kg Ext. P-17. PW-10 Inspector Ram Kumar weighed the charas. It weighed 7 kg. 100 gms. PW-10 Inspector Ram Kumar had drawn two samples of 50 gms each from the charas recovered from the accused. The sample packets of charas Ext. P-4 and Ext. P-5 and the rest of the charas Ext. P-3 was separately sealed in three packets with seal =H' and were taken into possession vide recovery memo Ext. PW-1/B. Bag Ext. P-2 was sealed with bulk charas, scale and weights. The accused was arrested. PW-10 Inspector Ram Kumar prepared report Ext. PW- 2/A and routed the same to the Police Station through PW-8 HHC Mahinder Singh. The contraband was produced before Inspector Narata Ram. PW-2 Insp. Narata Ram registered FIR Ext. PW-2/B. PW- 2 Insp. Narata Ram resealed the sample packets and the rest of the charas in original packing with seal T and had prepared memo Ext. PW-2/C. He deposited the case property with PW- 3 MHC Ashok Kumar. PW-3 MHC Ashok Kumar carried out the entries of the case property in the relevant register vide Ext. PW-3/A. The samples were sent to chemical examiner alongwith specimen impression of seal and copy of NCB form. The report of the FSL is Ext. PX. The investigation was completed and challan was put up against the accused after completing all the codal formalities. 3. The prosecution has examined as many as 12 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. His case is of simpliciter denial. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. Mr. Vivek Sharma, Advocate, appearing vice Mr. 3. The prosecution has examined as many as 12 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. His case is of simpliciter denial. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. Mr. Vivek Sharma, Advocate, appearing vice Mr. Ajay Kochhar, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. P.M.Negi, learned Dy. Advocate General, has supported the judgment of the learned Sessions Judge (Special Judge), Shimla, H.P. dated 21.12.2010. 5. We have heard learned counsel for the parties and gone through the records of the case meticulously. 6. PW-1, Rajesh Verma deposed that he received a call on his mobile No. 98168 17918 of Virender Chauhan, inspector Vigilance, posted at Shimla. He asked him to accompany him to the farm house at Pulvahal. He met Insp. Virender Chauhan near his residence at 6:30 AM. Inspector Virender Chauhan was accompanied by Ram Kumar. They were only two persons. They took him towards Pulvahal. When they were proceeding near Naura Khad, 5- 6 kilometers behind Pulvahal, 6-7 persons were standing there at one spot by keeping 2-3 bags on the ground near them. It was about 10:00 AM. Insp. Virender Chauhan and Ram Kumar had a conversation regarding charas with those 6-7 persons. They remained in conversation for about 15-20 minutes. He remained at some distance by the side of a vehicle. The vehicle belonged to Insp. Virender Chauhan bearing registration No. HP-14-1020. Those persons suspected Insp. Virender Chauhan and Ram Kumar as police officials. They all fled away. In the meantime, Inder Singh accused alongwith Baldev Singh came from the side of Pulvahal proceeding towards Naura Khad. After some time, a Bolero vehicle occupied by the police officials in civil dress also came from the Pulvahal side towards Naura Khad. There were 5-6 police officials in the vehicle. When accused Inder Singh was apprehended, he was not having anything with him. He was not carrying any bag with him. Thereafter, they were brought to Neripul. He was declared hostile and cross-examined by the learned Public Prosecutor. There were 5-6 police officials in the vehicle. When accused Inder Singh was apprehended, he was not having anything with him. He was not carrying any bag with him. Thereafter, they were brought to Neripul. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he deposed that he did not state to the police that on 1.11.2009 at about 11:30 AM, he was coming in his own Santro Car from Chaila via Neripul to Solan. (Confronted with portion A to A of his statement Mark A under Section 161 of the Code of Criminal Procedure, in which it is so recorded). He denied that at about 11:30 AM when he was proceeding in the said car about 200 meters behind a curve, the police had parked their jeep and they were also standing there. (Confronted with portion B to B of his statement Mark A under Section 161 of the Code of Criminal Procedure, in which it is so recorded). He also denied that one person was standing there who on the asking of the police disclosed his name as Inder Singh son of Het Ram resident of Village Gatadi, Tehsil and Police Station Sirmaur, H.P. nor he stated so to the police. (Confronted with portion C to C of his statement Mark A under Section 161 of the Code of Criminal Procedure, in which it is so recorded). He also denied that the said person, Inder Singh was carrying one blue coloured Airbag on his right shoulder and was carrying an empty cement bag of white and green colour which was giving smell of charas not he stated so to the police. (Confronted with portion D to D of his statement Mark A under Section 161 of the Code of Criminal Procedure, in which it is so recorded). He also denied that the police asked Inder Singh in his presence in writing that the said bags were giving smell of charas, hence, as to whether, he wanted to give the search of the said bags to a Magistrate or a Gazetted Officer or to the police, upon which, the accused opted to give the search to the police nor he stated so. (Confronted with portion E to E of his statement Mark A under Section 161 of the Code of Criminal Procedure, in which it is so recorded). (Confronted with portion E to E of his statement Mark A under Section 161 of the Code of Criminal Procedure, in which it is so recorded). He also denied that the police in his presence and in the presence of Insp. Virender Chauhan searched the blue coloured Air bag being carried by Inder Singh upon which charas in the shape of balls and sticks was found nor he stated so to the police. (Confronted with portion F to F of his statement Mark A under Section 161 of the Code of Criminal Procedure, in which it is so recorded). A suggestion was put to him by the Public Prosecutor to which he deposed that the charas was weighed and found to be 1.100 Kgs. He also admitted that two samples of 50 grams each were taken out from the recovered charas. He has admitted his signatures on memo Ext. PW-1/A. He signed the memo after reading its contents. However, according to him, he refused to sign the memo but was forced by the police to sign the same. He has admitted his signatures on Ext. PW-1/C. According to him, except two bags Ext. P-2 and P-6, there was no bag on the spot. He had not seen the gunny bag Ext. P-4 on the spot and saw the same for the first time in the Court. He was cross-examined by the learned defence counsel. In his cross-examination, he admitted that accused Inder Singh was not among those 6-7 persons who were present at Naura Khad. The accused alongwith Baldev were apprehended by the police on the basis of suspicion that they might be the associates of those 6-7 persons. The police officials asked him to sign the papers as they wanted to make out a false case against the accused because those 6-7 persons had ran away from the spot. He was also told that in case he did not sign the papers, it will be difficult for them to explain their position. There was habitation by the side of Naura Khad and Neripul. He never owned any car nor does he know driving. According to him, 6-7 persons had left the charas and other articles on the spot which were taken into possession by the police. He also admitted that accused was falsely implicated by Insp. Virender Chauhan in this case. There was habitation by the side of Naura Khad and Neripul. He never owned any car nor does he know driving. According to him, 6-7 persons had left the charas and other articles on the spot which were taken into possession by the police. He also admitted that accused was falsely implicated by Insp. Virender Chauhan in this case. He also admitted that he has nothing to do with the contraband in question. He also admitted that once he had appeared as a witness in case titled State Versus Satish Kumar in the Court at Solan. 7. PW-2 Insp. Narata Ram, was posted as Inspector/Investigating Officer, SV & ACB, Shimla. On 1.11.2009, he was working as Station House Officer of the Police Station. At about 6:00 PM, HHC Mohinder Singh brought rukka Ext. PW-2/A and handed over the same to him on the basis of which he got the FIR Ext. PW-2/B registered in the Police Station. At 9:00 PM, Insp. Ram Kumar handed over to him two sample parcels having marks S-1 and S-2 and third parcel containing charas. One bag having scale and weights and a gunny bag containing scale and weights, alongwith NCB Forms in triplicate and samples of seal. He resealed the five parcels by putting two seal impressions of seal =T' on each. He filled in column No. 9 of the NCB forms Ext. PW-2/D and signed the same. He also issued separate certificate regarding resealing of the case property vide Ext. PW-2/E. After resealing the case property, he directly handed over the same to MHC Ashok Kumar Police SV & ACB, Shimla and not to Inspector Ram Kumar. When he resealed the case property, FIR number had not been written on the said parcels. He handed over the case property to MHC at 9:05 PM. The certificate Ext. PW-2/E was not in his hand writing. Similarly, entry in the NCB forms in column No. 9 regarding resealing of the case property was not in his hand. All the columns of NCB forms Ext. PW-2/D are in the hand writing of Insp. Ram Kumar. He did not emboss the seal of seal =T' on NCB forms. NCB form only bears his signature and address. He did not deposit the NCB forms Ext.PW-2/D with MHC of Police Station but handed over the same to Inspector Ram Kumar. 8. All the columns of NCB forms Ext. PW-2/D are in the hand writing of Insp. Ram Kumar. He did not emboss the seal of seal =T' on NCB forms. NCB form only bears his signature and address. He did not deposit the NCB forms Ext.PW-2/D with MHC of Police Station but handed over the same to Inspector Ram Kumar. 8. PW-3 HC Ashok Kumar deposed that on 1.11.2009, HHC Mahinder Singh brought rukka Ext. PW-2/A in the Police Station on the basis of which FIR Ext. PW-2/B was registered. He was sent back with the case file at 6:50 PM to the spot. At 9:00 PM, Insp. Ram Kumar came and handed over the case property to Narata Ram. PW-2 Narata Ram resealed the case property and handed over to him one sealed parcel marked as P-1 allegedly containing 7 kg. of charas, two sample parcels allegedly containing 50 gms. of charas in each marked as S-I and S-II, a parcel marked as P-2 allegedly containing scale and weights, 5th parcel marked as P-3 allegedly containing scale and weights alongwith samples of seals =T' and =H' and NCB forms in triplicate. On 4.11.2009, he handed over three parcels mark P-1, S-I and S-II to LHC Balvinder vide RC No. 47/09, to hand over the same in FSL, Junga. NCB forms were deposited with him. Seals =T' and =H' were not deposited with him. Volunteered that samples of seals =T' and =H' were deposited with him. However, he has admitted that no entries regarding NCB forms in triplicate have been made in the Malkhana Register against Sr. No. 10/2009. No entry regarding resealing of parcel marked as P-1 at Sr. No. 1 has been made. The entries of the parcels having been resealed have not been made by him in the Malkhana Register. 9. Statements of PW-4 HHC Babu Ram and PW-5 HC Ramesh Chand are formal in nature. 10. PW-6 Const. Yog Raj was the driver of the vehicle No. HP-07A- 0680. According to him, when they reached near place called Naina, just near Neripul, one person carrying bag was walking by the side of the road. He was holding gunny bag in his hand. He was stopped. The police started talking with that person. He attempted to run away from the spot. According to him, when they reached near place called Naina, just near Neripul, one person carrying bag was walking by the side of the road. He was holding gunny bag in his hand. He was stopped. The police started talking with that person. He attempted to run away from the spot. Thereafter, he was asked to park the vehicle on the side of the road and he parked the vehicle. He kept sitting in the vehicle and the police officials carried out the proceedings. In his cross-examination, he has categorically deposed that nothing was recovered from the bag in his presence from the accused. He could not narrate the name of the person who was carrying the bag. According to him, all the police officials left for Shimla in his vehicle. They reached Shimla at about 8:30/9:00 PM. HHC Mahinder Singh was with them at the time of departure. He came back with them in the same vehicle alongwith other police officials. 11. PW-7 Insp. Virender Chauhan, deposed the manner in which the accused was apprehended, searched, seizure and sampling process was completed. In his cross-examination, he admitted that he was acquainted with Sunil Dutt, husband of the sister of accused Inder. 12. PW-8 HHC Mahinder Singh, was also member of the team. He deposed the manner in which the accused was apprehended, searched, seizure and sampling process was completed. He proceeded from the spot and handed over the rukka at Police Station at 6:00 PM to MHC Ashok Kumar, on the basis of which FIR was registered. He intimated about the registration of FIR and its number to Inspector Ram Kumar telephonically. He did not go back to the spot. He telephoned from the Police Station at about 6:30 AM. He also admitted that Const. Yog Raj, driver remained present on the spot. He remained present when the proceedings were being conducted. He did not know how many persons have come back to the Police Station in the government vehicle. 13. PW-9, HC Man Singh was also member of the team. He deposed the manner in which the accused was apprehended, searched, seizure and sampling process was completed. 14. PW-10 Insp. Ram Kumar is the Investigating Officer. He also deposed the manner in which the accused was apprehended, searched, seizure and sampling process was completed. According to him, he prepared rukka on the spot. He deposed the manner in which the accused was apprehended, searched, seizure and sampling process was completed. 14. PW-10 Insp. Ram Kumar is the Investigating Officer. He also deposed the manner in which the accused was apprehended, searched, seizure and sampling process was completed. According to him, he prepared rukka on the spot. He handed over the same to HHC Mahinder Singh for registration of the FIR. NCB forms Ext. PW-2/D in triplicate were filled on the spot. He signed the same. He prepared the spot map. He came to the Police Station. He handed over the case property and custody of the accused to SHO Narata Ram. SHO Narata Ram resealed the three parcels containing charas by putting two seal impressions of seal =T' on each of the parcels. Narata Ram got filled in column No. 9 from him and put his own signatures on the NCB form Ext. PW- 2/D. He was made to fill in columns since he was busy in sealing the case property. He also handed over to him resealing certificate Ext. PW-2/E. Thereafter, the case property was deposited with MHC of PS vide rapat No. 10 Ext. P-10/D. In his cross-examination, he reiterated that no column of NCB forms was in the handwriting of Narata Ram. No seal had been embossed on the NCB forms by Insp. Narata Ram, however, he has embossed his own seal =H' on the same. NCB forms Ext. PW-2/D was deposited in the Malkhana. The entry of deposit of NCB forms was not made in the Malkhana register. Volunteered that the entries were not made of the documents. Sample of seal =T' was not deposited by Insp. Narata Ram in the Malkhana in his presence. He also admitted that FIR number was scribed on the parcels when the case property was handed over to Insp. Narata Ram. The FIR number was written by him on the parcels in the Police Station at Shimla though the FIR number had been disclosed to him by HHC Mohinder Singh on telephone. He could not explain as to why inspite of receipt of telephone on the spot, he did not write the same on the case property. 15. PW-11 HHC Balwinder Singh has carried out the contraband to FSL, Junga. 16. PW-12 Kapil Sharma, has proved Ext. PX, FSL report. 17. He could not explain as to why inspite of receipt of telephone on the spot, he did not write the same on the case property. 15. PW-11 HHC Balwinder Singh has carried out the contraband to FSL, Junga. 16. PW-12 Kapil Sharma, has proved Ext. PX, FSL report. 17. According to the case of the prosecution, the accused was apprehended with the contraband on 1.11.2009 at about 11:30 AM. The rukka Ext. PW-2/A was prepared on the spot. PW-10 Insp. Ram Kumar has handed over the rukka to PW-8 HHC Mahinder Singh to be carried to the Police Station Shimla at 2:00 PM. PW-8 HHC Mahinder Singh deposed that he handed over the rukka at Police Station SV & ACB, Shimla at 6:00 PM to MHC Ashok Kumar, on the basis of which FIR was registered. PW-3 HC Ashok Kumar also deposed that on 1.11.2009 HHC Mahinder Singh brought rukka Ext. PW-2/A in the Police Station, on the basis of which FIR was registered. He was sent back with the case file at 6:50 PM to the spot. PW-2 Narata Ram deposed that HC Mahinder Singh has brought the rukka at 6:00 PM i.e. PW-2/A. He got the FIR Ext. PW-2/B registered. PW-6 Const. Yog Raj who was the official driver of vehicle No. HP-07A-0680, deposed categorically that HHC Mahinder Singh was with them at the time of departure from the spot. PW-8 HHC Mahinder Singh also came back with them in the same vehicle alongwith other police officials. In his examination-in-chief, he has admitted that all of them had remained on the spot since 11:30 AM till evening. They had reached Shimla at 8:30 PM. According to PW-3 HC Ashok Kumar, rukka was received and HHC Mahinder Singh was sent back with the case file at 6:00 PM to the spot. PW-8 HHC Mahinder Singh has categorically deposed in his examination-in-chief that he did not go back to the spot as there was no arrangement of conveyance. It casts serious doubt whether PW-8 HHC Mahinder Singh had carried rukka Ext. PW- 2/A to Police Station at Shimla or not. According to PW-6 Const. Yog Raj, all of them came back at 8:30 PM, thus, the version of the prosecution that rukka was brought by PW-8 HHC Mahinder Singh at 6:00 PM is belied. 18. According to PW-10 Insp. PW- 2/A to Police Station at Shimla or not. According to PW-6 Const. Yog Raj, all of them came back at 8:30 PM, thus, the version of the prosecution that rukka was brought by PW-8 HHC Mahinder Singh at 6:00 PM is belied. 18. According to PW-10 Insp. Ram Kumar, he had handed over the case file and custody of the accused to the SHO Narata Ram. SHO Narata Ram resealed the three parcels containing charas by putting two impressions of seal =T' on each of the parcels. SHO Narata Ram, got filled in column No. 9 of the NCB forms and put his signatures on it. The reason assigned for not filling column No.9 is that he was busy in resealing the case property. In his examination-in-chief, he admitted that column No. 9 of NCB forms Ext. PW-2/D was not in his hand writing. He also admitted that no seal was embossed on NCB forms by him. He also admitted that all the NCB forms had been handed over to Insp. Ram Kumar and not deposited with MHC. He did not deposit seal =T' with MHC or any other police officials. He remained in the Police Station till 9:05 PM. Inspector Ram Kumar came to him at 9:00 PM only. We have gone through the Malkhana Register Ext. PW-3/A. There is no entry of NCB forms in the same at Sr. No. 10. We have also gone through NCB forms Ext. PW-2/D. According to PW-2 Narata Ram, he has put two seal impressions of seal =T' on the samples. There is no impression of seal =T' in NCB forms. The NCB forms Ext. PW-2/D are filled in the handwriting of one person. 19. We have also gone through FSL report Ext. PX. According to the report Ext. PX, three sealed cloth parcels marked as P-1, S-I and S-II, each parcel bearing nine seals of =H' and resealed with two seals of =T' were received. The seals were found intact and tallied with specimen seals sent by the forwarding authority on the form NCB-1. Since there is no specimen seal put on NCB forms, how the same could be tallied by the FSL. The impression of seal =T' could be tallied if it was embossed on NCB forms. It, however, dents the case of the prosecution. Since there is no specimen seal put on NCB forms, how the same could be tallied by the FSL. The impression of seal =T' could be tallied if it was embossed on NCB forms. It, however, dents the case of the prosecution. Rather, PW-2 Narata Ram in his cross-examination has admitted that he has not embossed the seal of seal impression =T' on NCB forms. NCB forms were only signed by him. PW-3 HC Ashok Kumar has admitted in his cross-examination that there was no entry regarding NCB forms in triplicate in the Malkhana Register against Sr. No. 10/2009. No entry regarding resealing of parcel marked as P-1 at Sr. No. 1 has been made. The entries of the parcels having been resealed have not been made by him in the Malkhana Register. The prosecution has also not explained who has made endorsement Mark-A in Ext. PW-3/A, Malkhana Register. We have also gone through the Road Certificate Ext. PW-3/B in which there is no mentioning of NCB forms. 20. According to PW-8 HHC Mahinder Singh, he had informed PW-10 Insp. Ram Kumar of the FIR number on telephone and despite that FIR number was not written in the parcel. PW-2 Narata Ram in his cross-examination has admitted that when he resealed the case property, the FIR number was not written on the parcels. PW-10 Insp. Ram Kumar also admitted that FIR number was scribed on the parcels when the case property was handed over to Insp. Narata Ram. FIR number was written by him at Police Station at Shimla. He admitted that the FIR number was disclosed to MHC Mahinder Singh on telephone. He could not explain in his cross-examination as to why FIR number disclosed to him on telephone was not embossed on the case property. 21. The case of the prosecution has not been supported by PW-1 Rajesh Verma. According to him, he was requested by PW-7 Insp. Virender Chauhan to accompany him to farmhouse at Pulvahal. He accompanied him. The car belonged to PW-7 Insp. Virender Chauhan. The registration number of the Car was HP-14-1020. He was declared hostile. Surprisingly, a suggestion was put to him that charas recovered was 1.100 kgms though according to the prosecution, it weighed 7.100 kgms. The case of the prosecution is that all the official witnesses went to the spot in an official vehicle. Virender Chauhan. The registration number of the Car was HP-14-1020. He was declared hostile. Surprisingly, a suggestion was put to him that charas recovered was 1.100 kgms though according to the prosecution, it weighed 7.100 kgms. The case of the prosecution is that all the official witnesses went to the spot in an official vehicle. However, PW-1 Rajesh Verma has deposed that he was called by PW-7 Insp. Virender Chauhan and he alongwith Insp. Virender Chauhan and PW-10 Raj Kumar travelled in Santro Car owned by PW-7 Insp. Virender Chauhan. 22. PW-6 Const. Yog Raj, was driver of the official vehicle. He was present on the spot. In his cross-examination, he has admitted that nothing was recovered from the bags in his presence from the accused. He could not tell even the name of the accused. PW-8 HHC Mahinder Singh has also admitted in his cross-examination that PW-6 Const. Yog Raj driver of the vehicle remained present on the spot. He remained present when the proceedings were conducted. The official witness of the prosecution has not supported the case of the prosecution. PW-1 Rajesh Verma, appears to be a stock witness. He also appeared in NDPS case for prosecution titled as State versus Satish Kumar. It also pertained to NDPS. 23. Thus, the prosecution has failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused. There are major contradictions, improvements, discrepancies and infirmities in the statements of the witnesses, as noticed by us hereinabove. 24. Accordingly, the appeal is allowed. The judgment of conviction and sentence dated 21.12.2010 rendered by the learned Sessions Judge (Special Judge), Shimla, H.P., in NDPS case No. 32-S-7 of 2009 is set aside. The accused is acquitted of the charges framed under Section 20 of the ND & PS Act, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 25. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.