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Himachal Pradesh High Court · body

2014 DIGILAW 690 (HP)

Jagpal v. State of H. P.

2014-06-02

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the judgment rendered on 3.12.2008, by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushehar, in NDPS Act Case No.27 of 2007, whereby the appellants have been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. One lac for the commission of offence punishable under Section 20 (c) of the Narcotic Drugs and Psychotropic Substances Act and in default of payment of fine, they have been sentenced to undergo rigorous imprisonment for two years. 2. The prosecution case is that on 23.2.2007, at about 4.05 a.m., Head Constable Ram Lal, Police Station, Rampur, alongwith Constable Harish Kumar, Constable Partap Singh, was on nakabandi, on National Highway-22, near Bazeer Bawadi, in a government vehicle bearing registration No. HP-02-0262. At the place aforesaid, they sighted a Maruti Car bearing Number CH-01Y-0715, coming from Nirmand side, which vehicle on being signaled to stop, did not obey the command of the police party. Subsequently, HC Ram Lal alongwith other police officials, chased the Maruti Car bearing Number CH-01Y-0715, and, overpowered the Maruti Car at place Talai. Three persons were found to be occupying the car. On Inquiry, the police found that the accused Suresh Kumar was driving the car and accused Raj Kumar was occupying the vehicle, as, its owner and accused Jagpal was also sitting in the car. On suspicion of the accused transporting stolen property in the car, Head Constable Ram Lal carried out, search of the car, in, the presence of the police officials. On search, he recovered 14 polythene packets from the car. Out of the 14 packets, 4 packets each were concealed under the covers of the front doors and 6 packets were concealed under the rear seats. The packets contained ‘charas’ in the shape of sticks and balls. The charas was weighed on a scale brought by Shri Harish Kumar. The weight of the charas recovered from the front door was found to be 2 kgs each and that of charas recovered from under the rear seat was found to be 3 kgs. Out of charas recovered from the front driver’s door on drivers side, 4 samples of 25 grams each were separated. The weight of the charas recovered from the front door was found to be 2 kgs each and that of charas recovered from under the rear seat was found to be 3 kgs. Out of charas recovered from the front driver’s door on drivers side, 4 samples of 25 grams each were separated. Out of the charas, recovered from the door on the left side of driver, 4 samples of 25 grams each were separated and 4 samples of 25 grams each were taken from the 6 packets recovered from the seat. The sample parcels were sealed with 3 seals bearing Mark ‘H’. The bulk of charas was, also, sealed in separate parcel with seal ‘H’ and the specimen of seal impression Ex. PW- 6/A, was drawn. NCB form, in, triplicate was un-dated and seal was handed over to Constable Harish Kumar. The charas, sample parcels and the specimen seal impression were taken into possession vide memo Ex. PW- 1/A. Rukka Ex. PW-6/J was prepared and forwarded through Constable Partap Singh to the Police Station, for, the recording of FIR Ex. PW-9/A. The investigation was conducted by ASI Hari Bhagat. After taking case property and documents per inventory list Ex. PW-8/J, dated 23.2.2007 from Head Constable Ram Lal, ASI Hari Bhagat prepared site plan Ex. PW-8/A, and, case property was handed over to Sh. B.D Bhatia, SHO, who re-sealed the case property with seal ‘A’ and deposited the same with PW-3 MHC Devi Singh. Special Report Ex. PW-7/A qua the recovery of charas, was sent to the Sub Divisional Police Officer, Rampur through Constable Surinder Kumar. The samples were sent to Forensic Science Laboratory, Junga, for chemical examination, through Constable Surinder Kumar and the same were found to be samples of charas, vide, Ex. PW-8/B. 3. On completion of the investigation into the offence, allegedly committed by the accused persons, challan under Section 29 and 20 of the Narcotic Drugs and Psychotropic Substances Act, came to be filed against all the accused persons. 4. The accused did not plead guilty to the charge and claimed to be tried. 5. In proof of the prosecution case, the prosecution examined as many as 9 witnesses. On closure of the prosecution evidence, the statements of the accused persons under Section 313 of the Code of Criminal Procedure were recorded by the Court, in which they pleaded innocence and false implication. 6. 5. In proof of the prosecution case, the prosecution examined as many as 9 witnesses. On closure of the prosecution evidence, the statements of the accused persons under Section 313 of the Code of Criminal Procedure were recorded by the Court, in which they pleaded innocence and false implication. 6. On closure of proceedings under Section 313 of the Code of Criminal Procedure, the accused persons were given an opportunity to adduce evidence in defence, however, they did not adduce any evidence in defence. 7. Consequently, on hearing the learned Public Prosecutor, as well as, the learned defence counsel, learned trial Court, on the strength of the material laid before it, convicted and sentenced the accused, for theirs having committed an offence under Section 20(c) of Narcotic Drugs and Psychotropic Substances Act. 8. The first witness, who stepped into the witness box, in proof of prosecution case, is, PW-1 Shri Harish Kumar, who, in his cross-examination, deposed the fact that on 23.2.2007, he, alongwith Head Constable Ram Lal and Constable Pratap Singh, while performing nakabandi, in, a government vehicle bearing No. HP-02-0262, near Bazeer Bawdi on National Highway, having sighted one white colored Maruti Car, bearing number CH-01Y-0715, to be coming from Nirmand side, which was signaled to stop, however, its driver did not obey the command. On chase, the maruti car was overpowered near Talai on NH- 22 and all the three accused persons were found to be occupying the car. The accused Suresh Kumar was sitting on the driver seat, accused Jagpal was sitting on the front seat and owner Raj Kumar was occupying the rear seat. The witness identified the accused persons in the Court. Head Constable Ram Lal carried out the search of the Maruti car in his presence. 4 packets of charas were concealed, in the window, of, the Maruti car by the side of the drivers seat and 4 packets of charas were found concealed in the front left window of the Maruti car and 6 packets of charas were found concealed under the rear seat of the maruti car. On smelling of the contents of the recovered packets, the same were found to be containing charas. He further deposed that he was sent to bring the weights and scales from Nogli. He procured the scales from the Dhaba of one Sh. Chet Ram. On smelling of the contents of the recovered packets, the same were found to be containing charas. He further deposed that he was sent to bring the weights and scales from Nogli. He procured the scales from the Dhaba of one Sh. Chet Ram. On weighing, the 4 packets recovered from the window of driver seat, the same were found to be 2 kg. The charas of all the 4 packets was mixed up and 4 samples weighing 25 grams each were taken out and sealed with seal impression ‘H’. Also, the other 4 packets recovered from the front left window of the Maruti car, were weighed and found to be 2 Kgs and all the 4 packets were opened and the charas was mixed up and four samples of 25 grams each were taken out and put in separate parcels and sealed with seal ‘H’. The remaining charas, of, both the windows were also put in separate parcels and sealed with seal ‘H’. 6 packets of charas recovered from the rear seat were, also, weighed and were found to be 3 kgs in weight, and charas of all the 6 packets was also mixed up and 4 samples of 25 gram each were taken out, which were sealed in separate parcels and sealed with seal impression ‘H’ and the remaining charas was also put in a parcel, which was sealed with seal bearing impression ‘H’. The samples of seal were taken out on a piece of cloth and placed with each parcel, as mentioned above. The Maruti Car bearing No. CH-01Y- 0715, alongwith its key and documents, was taken into possession. The seal ‘H’ after its use was handed over to PW-1. All the above packets, Maruti Car and its documents were taken into possession vide memo Ex. PW-1/A, which was signed by PW-1 and the accused. Rukka was sent by the Investigating Officer through Constable Partap Singh to Police Station, Rampur for recording of an FIR. The case property, recovered from the alleged and conscious possession of the accused, has been identified to be the same. In his cross-examination by the learned defence counsel, he has deposed that vehicles plying on road were stopped by the police patrol for checking. He has admitted that he brought the weights and scales from a Dhaba, which was open at that time. In his cross-examination by the learned defence counsel, he has deposed that vehicles plying on road were stopped by the police patrol for checking. He has admitted that he brought the weights and scales from a Dhaba, which was open at that time. He also deposed that the scale was manual and not computerized. He has feigned ignorance qua the fact of Chet Ram having computerized scale, which was operatable by electricity only. He also deposed that when Constable Partap Singh left with Rukka to the police Station, the Investigating Officer Ram Lal was preparing the site plan and sealing was, also, in process at that time. He admitted that seal was lost by him and he did not report to his superiors about his mis-placing the seal nor any departmental inquiry has been initiated against him for his having misplaced the seal. He has admitted that the seal was handed over to him with instructions to produce the same in the Court. He further deposed that Constable Partap Singh left for the police Station with rukka, at about 4.20 a.m. to 4.45 a.m. He has admitted that traffic frequents the road. He also admitted that during that period 4-5 vehicles passed on NH-22 and none of these vehicles were stopped by the police patrol. 9. PW-2 Chet Ram has deposed qua the fact of running a Dhaba at Nogli. He testifies the fact that on 23.2.2007, at about 4 – 4.30 a.m., a police Constable had come to his Dhaba and had taken scales from him for weighing charas stated to have been recovered from Haryanvis. He deposed that the scale was electronic and after about 1-2 hours, the scale was returned to him. In his cross-examination, he deposed that the scale was computerized and was operational with electricity only. However, he continued to state that the same could be operated by cells also. He has denied that any weighment of the seized charas was carried out in his presence. 10. PW-3 HC Devi Singh has deposed that on 23.2.2007, S.H.O B.D Bhatia deposited with him one parcel and 12 sample parcels, which were sealed with seal ‘T’. 5 seal impressions on each parcel alongwith specimen seal impression ‘T’ and NCB form in triplicate were entered by him in the register No. 19 at Sr. No. 652. 10. PW-3 HC Devi Singh has deposed that on 23.2.2007, S.H.O B.D Bhatia deposited with him one parcel and 12 sample parcels, which were sealed with seal ‘T’. 5 seal impressions on each parcel alongwith specimen seal impression ‘T’ and NCB form in triplicate were entered by him in the register No. 19 at Sr. No. 652. He deposed that out of the said parcels, 6 sample parcels alongwith specimen seal impression ‘T’ and ‘H’ and NCB form, in triplicate were sent by him to FSL Junga, for chemical test through, Constable Surinder No. 920 vide R.C No. 161/06- 07 on 25.2.2007 and the said Constable handed over the receipt, on return to him, existing, on, the reverse of R/C. True copy of R/C No. 161/06-07 is Ex. PW-3/A and entry in the Malkhana register, is, Ex. PW-3/B. He further deposed that case property remained intact and untampered with, in his custody. 11. PW-4 Constable Surinder Kumar deposed that on 25.2.2007 ASI Hari Bhagat handed over to him a special report, which, he delivered to SDPO at his residence at 9.15 p.m., the copy of the special report bears Ex. PW-4/A, and it bears the signatures of Dy. S.P Ajay Bodh. On 25.2.2007 HC Devi Singh handed over six parcels sealed with 5 seals on each sample parclel and special seal impression ‘T’ and NCB forms in triplicate to him, which were deposited by him at FSL Junga on 26.2.2007. The sample parcels remained intact during the period they remained in his custody. He further deposed, that he handed over the receipt of deposit of parcels at FSL, Junga to MHC Devi Singh. 12. PW-5 Constable Pratap Singh has corrobotated the testimony of PW-1. However, in his cross-examination, he has deposed that he left the police Station with rukka at about 6.45 a.m., and, his statement has been recorded by the Investigating Officer. He also deposed in his crossexamination that he reached the spot with case file at about 7.30 a.m., and by that time, recovery memo had been prepared. He has not been specifically able to depose as to which memo was prepared, after his leaving with the rukka, to the police Station. 13. He also deposed in his crossexamination that he reached the spot with case file at about 7.30 a.m., and by that time, recovery memo had been prepared. He has not been specifically able to depose as to which memo was prepared, after his leaving with the rukka, to the police Station. 13. PW-6 HC Ram Lal has corroborated the testimonies of PW-1 and PW-5 qua the fact as deposed by each of them in respect to the manner of recovery and seizure of contraband from the alleged and conscious possession of the accused persons. In, his crossexamination he has deposed, that the police patrol reached at Bazeer Bawdi, at about 4.05 a.m. and at the very moment, the Maruti car carrying the accused persons, also reached. He deposed in his cross-examination, that the site plan was prepared at his instance by ASI Hari Bhagat. He feigned ignorance qua the fact that as to how many site plans have been prepared in this case, rather he deposed in his cross-examination, that the Investigating Officer prepared the site map in respect of Talai. ASI Hari Bhagat arrived at the spot at about 7.30 a.m., however, FIR qua the incident was lodged by that time. ASI Hari Bhagat recorded the statements of Pratap Singh and Harish Kumar in his presence. NCB form was in his hand and in the hand of ASI Bhagat Singh and SHO. He omitted to recall, as to how many columns have been filled by him. He denied that he carried out erasures on column of No. 5. He has not been able to attribute responsibility to any person for erasing of entry against column No. 5. Though, in the initial stage, he deposed that the entry against column No. 6 was in his hand, yet, in the next breath, he deposed that, it, is not in his hand. Also he deposed that entries against column No. 9 to 11 are not in his hand, however, he deposed that signatures below the entry and above his signatures are that of Hari Bhagat ASI. In his cross-examination he further deposed that there was sufficient inhabitation in between Talai and Nogli and Constable Harish Kumar was sent to procure the witnesses. 14. PW-7 ASI Kanwar Singh deposed that on 25.2.2007 , Shri Ajay Singh Bodh, SDPO handed over special report of this case to him which he entered at Sr. In his cross-examination he further deposed that there was sufficient inhabitation in between Talai and Nogli and Constable Harish Kumar was sent to procure the witnesses. 14. PW-7 ASI Kanwar Singh deposed that on 25.2.2007 , Shri Ajay Singh Bodh, SDPO handed over special report of this case to him which he entered at Sr. No. 951 on 25.2.2007. He further deposed that original report is comprised in Ex. PW-7/A. True copy of the register is comprised in Ex. PW-7/B. 15. PW-8 ASI Hari Bhagat has deposed that on 23.2.2007, SHO B.D Bhatia handed over the case file of this case to him for investigation and he reached the spot and site plan Ex. PW-8/A was prepared and its marginal notes were also prepared by him. He also deposed that he recorded the statement of witnesses. He proceeds to testify that the case property was taken into possession by HC Ram lal and then the case property was sealed with three seals bearing Mark H. 12 sample parcels sealed with three seals bearing mark ‘H’ and NCB forms in triplicate, sample seal, recovery memo were handed over to SHO, who resealed the parcels in his presence and handed over the same to MHC and after receipt of the report of chemical examiner FSL Junga, Ex. PW-8/B, case file was handed over to the SHO. He further deposed that he arrested the accused and prepared arrest memos Ex. PW-8/C, PW-8/D and PW-8/E. He deposed that, he forwarded the special report, to SDPO and then prepared memos of personal search of the accused persons comprised in Ex. PW-8/F, PW-8/G and PW-8/H. He also collected the record from Malkhana from the MHC and receipt of the special report was also taken. He also prepared inventory list Ex. PW- 8/J. In his cross-examination he deposed that he was not witness to re-sealing of the memo. In his corssexamination he deposed that the accused persons were apprehended at place Talai and there is abadi below the road at Talai. He also deposed, that, Talai has not been shown in the site map Ex. PW-8/A. 16. PW-9 has deposed that on 23.2.2007 C. Pratap Singh delivered rukka Ex. PW-6/J to him and he recorded FIR Ex. PW-9/A which he testified to have been signed by him. Case file was handed over to ASI Hari Bhagat for investigation. He also deposed, that, Talai has not been shown in the site map Ex. PW-8/A. 16. PW-9 has deposed that on 23.2.2007 C. Pratap Singh delivered rukka Ex. PW-6/J to him and he recorded FIR Ex. PW-9/A which he testified to have been signed by him. Case file was handed over to ASI Hari Bhagat for investigation. On the same date, he deposed that ASI Hari Bhagat delivered the case property. He deposed that he carried out the resealing of the parcels and sample parcels with 5 seals each bearing mark T and prepared resealing certificate Ex. PW-9/B. Entry of resealing was also made in the NCB form, which bears his signatures. Case property was then deposited by him with MHC. On completion of investigation, ASI Hari Bhagat handed over the case file to him and he prepared the challan and the same was presented before the court. In his crossexamination, he deposed that updating of FIR in this case, is in the hand writing of ASI Hari Bhagat. He further deposed that at the time of delivery of NCB Form FIR was recorded. He has been unable to depose whether the FIR might have been added in the NCB form by any official. He deposed that writing of columns No. 1 to 7 and 9 to 11 appears to be of different persons, and hence they are not in his hands. 17. The learned defence counsel has contended that the entire prosecution story is bedrocked upon discrepant evidence on record hence, the findings of conviction anchored upon, it has occasioned substantial miscarriage of justice. Therefore, the learned defence counsel has canvassed, that, the findings of conviction, rendered against the accused, be reversed by this Court in the exercise of the appellate jurisdiction. 18. On the other hand, the learned Additional Advocate General, contends before this Court, that, the findings of conviction, recorded against the accused, are, based on a mature and balanced appreciation of the evidence on record. Further more, the impugned judgment of the conviction is not vitiated by any perversity or absurdity in the appreciation of evidence. Consequently, findings of conviction recorded against the accused persons do not warrant any interference. 19. Further more, the impugned judgment of the conviction is not vitiated by any perversity or absurdity in the appreciation of evidence. Consequently, findings of conviction recorded against the accused persons do not warrant any interference. 19. This Court has with studied care traversed through the entire evidence on record, it is apt to articulate at this stage, that the findings of conviction recorded by the learned trial Court against the accused persons, is, built upon discrepant evidence on record, hence, has sequelled gross and substantial miscarriage of justice. It is also significant, that, the learned trial Court, has erred in affording probative value to the prosecution evidence which is rife with inconsistencies and contradictions. Hence, when it was unworthy of credence nor its having any evidentiary value, as a corollary the finding on conviction anvilled upon infirm evidence, is frail. The imminent contradiction with which the prosecution case is replete, are:- 1. Ruqua Ext.PW-6/J, portrays the factum of, its, preparation and dispatch, at, about 5.45 a.m. In contradiction thereto, PW-1 Harish Kumar, constable, deposed that Ruqua was sent at 4.20 a.m -4.45 a.m. On the other hand PW-5 Pratap Singh, through whom Ruqua was sent, to the police station, for the recording of F.I.R deposes with candor and forthrightness, that Ruqua was taken by him from the spot, at 6.45 a.m. Ruqua encapsulates the genesis of the prosecution version, yet when the timing of its recording/dispatch, as is apparent from its reading, is, 5.45 a.m and when the prosecution witnesses PW-1 and PW-5 depose in contradiction, to, the recorded timing of its dispatch, to, the police station for the recording of the F.I.R., in aftermath, the obvious inference, is, that the Ruqua was prepared, at, a time other than the one scribed in it. Hence, it also was dispatched at a time other than at the time recited in it. As a sequel, then the recording of F.I.R., on, strength thereof, is, also to be concluded to be at a time other than the one at which, it, is portrayed to be recorded. The contradictions aforesaid qua the timing of dispatch, of, Ruqua and the time recorded in F.I.R, qua its receiving, also, renders doubt to seep into, besides tells upon the veracity of the prosecution version qua the incident comprised in Ruqua, as well, as in the F.I.R. recorded, on its strength. 2. The contradictions aforesaid qua the timing of dispatch, of, Ruqua and the time recorded in F.I.R, qua its receiving, also, renders doubt to seep into, besides tells upon the veracity of the prosecution version qua the incident comprised in Ruqua, as well, as in the F.I.R. recorded, on its strength. 2. Ext.PW-3/B, which, is, the Malkhana Register, omits to record the deposit of the NCB form, in, the Malkhana Register. Besides, there, is, no entry of deposit, of the facsimile of seal impression “H” as, is, apparent on a perusal of Column No. 3 of Ext.PW-3/B. A further perusal of columns of Ext.PW-3/B, also unfolds the fact that, no, entry of such seal impression “H” of the NCB form, as well, as that of the facsimile of seal impression “T” having been recorded. The effect thereof is that the inference of transmission of the case property, to, FSL Junga for analysis having not emanated from hence, spurs Malkhana, the lack of an apposite entry qua its deposit leaves scope for the formation of an inference, that, the case property purportedly linking the accused, to theirs having committed the offences as alleged, to, have been committed by them, was not retrieved from the Malkhana nor obviously was the property as purportedly recovered from the conscious and exclusive possession of the accused persons nor also recovered so. As a aftermath, it can be concluded that even the rendition of opinion by the FSL, is, qua contraband other than the one recovered from the exclusive and conscious possession of the accused persons. As a corollary, then the accused cannot be linked with the opinion rendered on case property comprising the one, not for reasons aforesaid, recovered from the alleged conscious and exclusive possession of the accused. 3. As a corollary, then the accused cannot be linked with the opinion rendered on case property comprising the one, not for reasons aforesaid, recovered from the alleged conscious and exclusive possession of the accused. 3. Interpolations, also exist in the NCB form bearing Ext.PW-6/B, in as much, as, the timing mentioned against the typed entry, at, Column No.3 of NCB form, unfolds the fact of time of filling of the form, to be 4.05 a.m, which is in stark contradiction, to, the genesis of the prosecution case comprised, in, Ext.PW-6/J wherein the timing, of the first spotting of the vehicle by the police party, has been shown as 4.05 a.m. The above contradiction ,belittles as well as dispels the veracity of the prosecution case, comprising the factum of search, seizure and recovery proceedings having been commenced and concluded, at the time and place, as narrated in the rukka. 4. There is apparent cutting and erasing of entry No.5 in the NCB form, with which cutting and erasing PW-6 was confronted. However, he does not own the fact of his having erased or deleted the entry against column No. 5 in Ext.PW-6/B. PW-8 and PW-9 also deny the fact of theirs having filled up any entry in Ext.PW-6/B. Consequently, with no plausible or tenable explanation emanating from any person, qua the erasing and cutting of entry against column No.5 nor any police official owing such cutting and erasing, its effect is that, it, raises doubt qua the authenticity of the entry against column No.5. The sequelling effect is that it is, hence, construable to be a concocted document, as such, unreliable. Consequently, further the very edifice of the prosecution version capsizes. 5. Moreover, column No.6 records the fact of sealing the case property with seal “H” and also resealing with seal “T”. However, resealing when could be done only, by PW-9 and that too,at the time of deposit of case property deposed to be at 2.30 p.m. As a result revelation of column No.6 being filled at the spot and its being resealed contemporaneously with seal “T”, hence, both concludeable to being completed at the spot, renders open a conclusion, that, the resealing was done, at, a place and at a time, other than the one mentioned in the deposition, of, PW-9, who rather deposes, that, the case property was deposited at 12.30 p.m. in the Malkhana. As a corollary, the prosecution version is engulfed in a shroud of doubt, hence, impinging upon the veracity of the prosecution version, of, the proceeding qua resealing as well as deposit of the case property in the Malkhana at the time deposed by PW-9. Consequently, it is concluded that the prosecution has relied upon a concocted version which, fails to link the accused with the alleged offences. What compounds the above inference, is, that on a reading, of the testimony of PW-6, who filled up the entries of Column No. 1 to 8 of Ext.PW-6/B, when confronted with entry of Column No.6, has denied the fact, of the entry against column No.6, being in his hand and deposes that the entry below and above his signatures are, of PW-8 Hari Bhagat, ASI. However, both PW-8 and PW-9 do not own responsibility for the scribing of the entry against Column No.6. The effect thereof, is, that the recording of the entries against column in NCB form Ext.PW6/B are rendered vulnerable to skepticism. Therefore, it appears that, it, is a wholly manufactured and concocted document on which, no, reliance can be placed by this Court. 6. HC PW-6 Ram Lal being the complainant was under a disability to act as I.O. Consequently, PW-8 was sent by PW-9 to conduct/conclude the investigation of the present case. However, PW-1 deposes, that, no other policeman was accompanying Pratap Singh when, he, returned to the spot. Also, PW-5 deposes, that, he is unable to recall the time when the case file was handed over to PW-8 Hari Bhagat, in contradiction to the deposition of PW-1, Pratap Singh who deposed that when he returned to the spot, no other policeman was accompanying him. PW-6 H.C. Ram Lal, deposes, that Pratap Singh was accompanied by S.I Hari Bhagat. The contradiction to the extent referred above in the deposition of PW-1 and PW-6, as well, as of PW-5, in as much, as, PW-6 contradicting PW-1 qua the fact of Pratap Singh not returning to the spot with ASI Hari Bhagat deputed for investigation into the offence, and PW-5 feigning ignorance qua the exact time, when the case file was handed over to PW-8, to, investigate the case, renders the prosecution case, to be again engulfed, in, a heavy shroud of doubt qua the time of arrival of S.I. Hari Bhagat, for carrying out investigation into the offence. The finest conclusion which, hence, ensues is that the time of arrival of Hari Bhagat, at, the site of offence, investigation into the offence, and as such, preparation of various memos of search, seizure and recovery besides filling up of the NCB form, is, replete with doubt. 7. PW-1 Harish Kumar deposes that when Pratap Singh left with Ruqua to the police station the Investigating Officer was preparing the site plan and the sealing process was then in motion. However, a perusal of Ext.PW-1/A, which, is, the seizure memo discloses that the name of constable Pratap Singh PW-5, who is deposed by PW-1 to be not present at the site of occurrence, at, the time of sealing of the case property, on the contrary unfolds the fact, of his presence, highlighted by the fact of name and signatures of PW-5 existing, on, seizure memo Ext.PW-1/A. The above contradiction also underscores the fact of the timing of departure, of, PW-5 Pratap Singh, to the police station with Ruqua, to be untruthful. It also has affected the veracity of the version of the prosecution case, qua the time of preparation of seizure memo and the place of its preparation, hence, eroding the truth of the prosecution version as projected before this Court. 8. PW-5 deposes that the site plan was being prepared by I.O. Ram Lal, PW-6 when he returned to the spot. However, PW-6 deposes that the site plan was prepared at his instance by ASI Hari Bhagat. He further feigns ignorance qua the number of site maps which were prepared, in, the instant case. He, also deposes that the I.O. , also, prepared site plan, in respect of Talai. On the other hand PW-8 the I.O. deposes that, on his arrival at the spot he prepared the site map Ext.PW- 8/A. Now, with PW-5 contrarily deposing that the site map was prepared by I.O. Ram Lal, which fact is lent corroboration by PW-6 (Ram Lal). Then the obvious natural corollary which arises, is, that the site plan which has been relied upon by the prosecution, may not be reflective of the truthful narrative of the place where the accused were nabbed and contraband allegedly recovered from their conscious and exclusive possession. In, sequel the veracity of the prosecution case, hence comes to be torn to smithereens. 9. In, sequel the veracity of the prosecution case, hence comes to be torn to smithereens. 9. The omission on the part of the prosecution to associate independent witness, though available, as is apparent from the testimony of PW-1, who, in his cross-examination has deposed, that during the period when the proceedings were, in progress 4 to 5 vehicles had passed and none of the vehicles were stopped, corroborated by the testimonies of PW-8, who, deposes that, at, place Talai, there is an abadi below the road, the willingness of whose inhabitants be associated in the proceedings relating, to, search, seizure and recovery was neither endeavoured to be ascertained nor any plausible explanation for theirs being omitted to be associated has come forth. In addition, the person from whom the weighing scales were procured, Chet Ram PW-2, not, having been associated as a witness to the proceedings, decapitates the prosecution story qua veracity of the version qua the incident, wholly anvilled upon discrepant evidence of the official witnesses. In other words, omission of or non-association of independent witnesses though available and deliberately not joined renders the version, to, founder. 20. Accordingly, the appeal is allowed and the judgement of conviction and sentence dated 3.12.2008, rendered by the learned Sessions Judge, Kinnaur at Rampur Bushahr, under Section 20(c) of the NDPS Act, is, set aside. The accused persons are acquitted of the charge framed against them. The fine amount, if any, deposited by them, is ordered to be refunded to them. Since, the accused are in jail, they be released forthwith, if not required in any other case. 21. The Registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the Jail concerned, in conformity with this judgement, forthwith.