JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against judgment rendered by learned Special Judge Kinnaur at Rampur Bushahr, District Shimla, HP in Case No. 25-AR/3 of 09/10 dated 6.12.2010, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1.00 Lac and in default to further undergo rigorous imprisonment for two years. 2. Prosecution case, in a nutshell, is that on 14.2.2009, Head Constable Govind Singh alongwith C. Pyare Lal No. 429 and C. Kam Raj No. 872 was present at Chil Mod near Khekhar Village at National Highway No. 22. At about 5.45 pm, they found one person standing near the parapet. On seeing the police party said person got scared and tried to run away. He was carrying a bag on his shoulder. On suspicion HC Govind Singh overpowered and apprehended him with the assistance of accompanying police officials. On suspicion of possession of some contraband in the bag, he was given option to be searched either in the presence of a Magistrate or a Gazetted Officer but the accused opted to be searched by the police. Upon this, HC Govind Singh gave his personal search to the accused person and thereafter he conducted the search of the bag of accused and found one cushion of cloth in the bag, in which one polythene envelope having four polythene envelopes containing Charas was found. Charas weighed 3.500 kg. Thereafter two samples weighing 25 grams each were separated and put into separate parcels and the bulk was also put back into same polythene envelope and then put into the same bag which was put into a parcel. All three parcels were sealed with seal impression =V'. NCB form in triplicate was filled in and after obtaining specimen of seal, the same was handed over to C. Jia Lal. The contraband article recovered from the possession of accused person was taken into possession vide seizure memo, which was witnessed by C. Jia Lal and C. Kam Raj. All three parcels were sealed with seal impression =V'. NCB form in triplicate was filled in and after obtaining specimen of seal, the same was handed over to C. Jia Lal. The contraband article recovered from the possession of accused person was taken into possession vide seizure memo, which was witnessed by C. Jia Lal and C. Kam Raj. Rukka was scribed by HC Govind Singh, on the basis of which FIR No. 24 dated 14.2.2009 was registered in Police Station Kumarsain. The accused person was arrested. Samples and bulk were sent to Chemical Examiner FSL Junga who confirmed that the contents of the same were that of Charas. Investigation was completed and challan was put up after completing all the codal formalities. 3. Prosecution has examined as many as ten witnesses to prove its case against the accused. Statement of accused was recorded under Section 313 of the Criminal Procedure Code. He pleaded innocence. Accused was convicted and sentenced as noticed above. Hence, this appeal. 4. Mr. Bimal Gupta, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, Assistant Advocate General has supported the judgment passed by the learned trial Court. 6. We have heard the learned counsel for the parties and also gone through the judgment carefully. 7. PW-1 C. Kam Raj deposed that he accompanied Head Constable Govind Singh and C. Jia Lal on patrolling duty and when they reached near Khekhar, Chil Mod at about 5.45 pm, a person was found at National Highway on the parapet. He tried to run away. He was overpowered. HC Govind Singh sought option of the accused for his personal search after disclosing his right to be searched either before a Magistrate or a Gazetted Officer. Accused opted to be searched by the police vide Memorandum Ext. PW-1/A. HC Govind Singh gave his personal search to the accused vide memorandum Ext. PW-1/B. Search of the bag of the accused was carried out. Accused opted to be searched by the police vide Memorandum Ext. PW-1/A. HC Govind Singh gave his personal search to the accused vide memorandum Ext. PW-1/B. Search of the bag of the accused was carried out. Charas was recovered from the bag, which weighed 3.500 kg, out of which two samples of 25 gms each were drawn and put into a different packet duly sealed with seal =V' and remaining charas including the polythene packet was duly sealed with seal =V' and specimen impression of the seal was drawn and thereafter it was handed over to C. Jia Lal and the sample part alongwith the packet of remaining Charas was taken into possession vide Ext. PW-1/E. Specimen impression of the seal was drawn vide Ext. PW-1/D and handed over to him by HC Govind Singh to be carried to the Police Station. He admitted in his cross-examination that there were 5/7 shops on the roadside and there are about 15/20 residential houses in Khekhar village. He admitted that at normal speed it takes 45 minutes on foot to reach Chil Mod from Khekhar village through national highway. He admitted further that national highway remains busy with vehicular traffic. No person from nearby locality was associated nor any person from moving vehicles while effecting search of the accused. He came back from the spot alongwith rukka at 7.15 pm. He went back to the police station in bus. He did not return to the spot after reaching the police station. 8. PW-2 C. Gopal Singh deposed that on 15.2.2009, MHC Vinod Kumar handed over to him one sealed sample duly sealed with seal =C' vide RC No. 105/08-09 alongwith NCB form and the same was delivered on the same day and receipt was brought. 9. PW-3 C. Kamlesh Kumar is a formal witness. 10. PW-4 HC Vinod Kumar deposed that he was officiating SHO in addition to MHC police station. C. Kam Raj has brought Rukka at 8.30 pm. He registered FIR Ext. PW-4/A. Endorsement was made on Rukka vide mark =A'. He handed over the file to C. Kam Raj. At about 9.45 pm HC Govind Singh produced one sealed sample containing bulk charas and two sealed samples duly sealed with seal =V' alongwith NCB form and specimen impression of the seal and thereafter he resealed all the sealed packets with seal =C' and filled up NCB form. He handed over the file to C. Kam Raj. At about 9.45 pm HC Govind Singh produced one sealed sample containing bulk charas and two sealed samples duly sealed with seal =V' alongwith NCB form and specimen impression of the seal and thereafter he resealed all the sealed packets with seal =C' and filled up NCB form. Sealed exhibits alongwith specimen impression of the seal and reseal were deposited in the Malkhana and entry was incorporated in the Malkhana registered vide Ext. PW-4/E. Special report was also sent with C. Gopal Singh to be delivered in the office of SDPO Rampur. He handed over one sample alongwith specimen of seal impression vide RC No. 105/08-09 and NCB form to be delivered at SFSL on 16.2.2009. 11. PW-5 ASI Swaroop Ram is a formal witness. 12. PW-6 SI Neel Chand is also a formal witness. 13. PW-7 SI Purshottam Dutt is also a formal witness. 14. PW-8 C. Bharat Bhushan deposed that on 22.3.2010 MHC Vinod Kumar had handed over one large and one small parcel which were sealed with six seals each of impression =V' and =C', respectively. Alongwith NCB form docket and specimen of seal to him vide RC No. 115/09-10 dated 22.3.2010. He deposited the parcel alongwith accompanying documents and specimen of seal with FSL Junga on the same day. 15. PW-9 C. Parmodh Kumar testified that on 5.5.2010, he received two parcels sealed with seven seals and two seals respectively of FSL alongwith report Ex. PW-4/K. He handed over the same to MHC in PS Kumarsain on the same day. 16. PW-10 HC Govind Singh deposed the manner in which accused was apprehended and seizure and sampling process was completed. Rukka was sent through PW-1 C. Kam Raj to the police station. According to him, case property alongwith NCB form and specimen of seal was presented by him before officiating SHO HC Vinod Kumar, who resealed the case property and filled up remaining columns of the NCB form. In his cross-examination, he has admitted that distance of Chil Mod from the police post Sainj is about 1.5 kms. Distance from Sainj to Khekhar is 1 km and from Khekhar to Chil Mod is ½ km. They reached at the spot while patrolling on the way. It took them 1 hour and 45 minutes to reach the spot. There were 3-4 shops on the NH. Distance from Sainj to Khekhar is 1 km and from Khekhar to Chil Mod is ½ km. They reached at the spot while patrolling on the way. It took them 1 hour and 45 minutes to reach the spot. There were 3-4 shops on the NH. Main village is below the road. He admitted that National Highway is a busy road, on which vehicles cross frequently. He also admitted that a foot path goes from Chil Mod to Luhri. At the time of conducting proceedings at the spot, he tried to stop vehicles to procure independent witnesses, however, no vehicle stopped there. No action was taken by him against the occupants of the vehicles, who did not stop and he did not send any person to procure independent witnesses He also admitted that C. Kam Raj had taken Rukka but he did not come back to the spot where he handed over the case file to him. 17. According to PW-1, there were 5-7 shops on the road side and 15- 20 residential houses at Khekhar village. He also admitted that no person from nearby locality was associated nor any person from vehicles on the road was associated while carrying out search of the accused. He left the spot alongwith Rukka at 7.15 pm. He went to the police station, however, never came back from the police station to the spot. PW-10 Govind Singh has also admitted that there were 3-4 shops at National Highway at Khekhar and main village was below road at some distance. He had tried to stop vehicles however, vehicles did not stop. He has not taken any action against the occupants of the vehicles nor has he sent any person to procure independent witnesses from the village. 18. It is not a case where recovery was effected from a secluded and isolated place. There were shops near the place from where accused was nabbed. Residential houses were also nearby and despite that police has not joined any independent witnesses. According to PW-1, Kam Raj, they have not associated occupants of the vehicles plying on the National Highway. It has come on record that there remains heavy vehicular traffic on the road. Version of PW-10 Govind Singh that they signaled the vehicles to stop but they did not stop, can not be believed. According to PW-1, Kam Raj, they have not associated occupants of the vehicles plying on the National Highway. It has come on record that there remains heavy vehicular traffic on the road. Version of PW-10 Govind Singh that they signaled the vehicles to stop but they did not stop, can not be believed. The police can always invoke provisions of Section 160 and 176 of the Criminal Procedure Code in case persons were not ready and willing to be associated during the course of investigation. It is true that the conviction can be made on the basis of statements made by the official witnesses, if the statements are true and inspire confidence, without associating independent witnesses. However, in the instant case, independent witnesses, though available at nearby place, were not associated by the police. Thus, the recovery of contraband from the accused is not proved in accordance with law. Prosecution has failed to prove its case against the accused beyond reasonable doubt. 19. In view of discussion and analysis made hereinabove, the appeal is allowed. Judgment of conviction passed by learned Special Judge, Kinnaur at Rampur on 6.12.2010 in Case No. 25-AR/3 of 09/10 is set aside. Accused is acquitted of the offence under Section 20 of Narcotic Drugs & Psychotropic Substances Act, 1985. He be released forthwith, if not required in any other case by the Police. Registry is directed to prepare release warrant of the accused and send the same to the Superintendent Jail concerned.