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2014 DIGILAW 787 (HP)

Mohammad Rafik v. State of H. P.

2014-06-24

P.S.RANA, SANJAY KAROL

body2014
JUDGMENT P.S. Rana Judge Present appeal filed against the judgment and sentence passed by learned Special Judge Fast Track Court Chamba in Sessions Trial No. 9/06/2005 titled State of Himachal Pradesh Vs. Mohammad Rafik decided on 20th December 2006. BRIEF FACTS OF THE PROSECUTION CASE: 2. Brief facts of the case as alleged by the prosecution are that on dated 30th November 2004 in the evening a police party headed by HC Subhash Singh was on routine patrol and were present at zero point Goli. It is alleged that Car No. HP-47-1624 came from Chamba side and same was stopped by the police officials for checking purpose. It is alleged that Sh Tilak Raj was driving the Car whereas Sh Parkash Chand was sitting in it. It is further alleged by prosecution that when the police officials were checking the documents of the said Car accused Mohammad Rafiq came from Chauhra road side covered himself with brown colour shawl. It is further alleged by the prosecution that when the accused saw police officials the accused turned back and tried to run away from the spot. It is further alleged by the prosecution that on suspicion the accused was chased and overpowered by the police officials. It is further alleged that shawl Ext P1 was removed and it was found that accused was carrying bag Ext P2. It is further alleged by the prosecution that bag Ext P2 was opened and checked by the police officials and in the bag charas in the shape of balls and sticks found. It is further alleged by the prosecution that HC Subhash Singh deputed Constable Rajesh Kumar to bring the weights and scale to the spot and thereafter Constable Rajesh Kumar brought the weights and scale from the shop of PW3 Sh Kishu Ram and thereafter the charas was weighed. It is further alleged by the prosecution that 2.5 Kg charas was found from the possession of the accused. It is further alleged by the prosecution that out of the recovered charas two samples of 25 grams each of Charas were took out and remaining charas was put in the bag itself. It is further alleged by the prosecution that charas was sealed with seal impression ‘A’ and took into possession vide memo Ext PA. It is further alleged by the prosecution that out of the recovered charas two samples of 25 grams each of Charas were took out and remaining charas was put in the bag itself. It is further alleged by the prosecution that charas was sealed with seal impression ‘A’ and took into possession vide memo Ext PA. It is further alleged by the prosecution that parcel of the shawl was prepared which was also sealed with seal impression ‘A’. It is further alleged by the prosecution that seal after use was handed over by HC Subhash Singh to HC Constable Parkash Chand. It is further alleged by the prosecution that HC Subhash Singh sent rukka Ext PB through Constable Rajesh Kumar to SHO Police Station Dalhousie and on the basis of said rukka FIR Ext PW12/A was registered. It is further alleged by the prosecution that copy of rukka Ext PW6/A was sent by HC Subhash Singh through Constable Sanjay Kumar to SP Chamba. It is further alleged by prosecution that NCB form Ext. PW10/A was filled at the spot by HC Subhash Singh. It is further alleged by the prosecution that documents and case property were handed over by HC Subhash Singh to HC Sukesh Kumar vide inventory list Ext PC. It is further alleged by prosecution that specimen seal impression of seals were obtained upon cloth. It is further alleged that parcels were resealed with seal impression ‘B’ and memo Ext PF to that effect was prepared. It is further alleged by prosecution that special report Ext PW6/B was sent by ASI Bhadur Singh to SP Chamba through Constable Hem Raj. It is further alleged by prosecution that site plan Ext.PW11/A was prepared and report of Chemical Examiner CTL Kandaghat Ext PW13/A was obtained. The case was filed before the learned trial Court under Section 20 of the Narcotic Drugs and Psychotropic Substances Act 1985 (Hereinafter referred to as the ‘Act’). Learned trial Court framed charges against the accused person under Section 20 of the ‘Act’ on dated 13th July, 2005. Accused person did not plead guilty and claimed trial. 3. The prosecution examined as many as thirteen witnesses in support of its case: Sr.No. Name of Witnesses PW1 Rajesh Kumar PW2 Prakash Chand PW3 Kissu Kumar PW4 Prittam Chand PW5 Sanjay Kumar PW6 Ajay Kumar PW7 Mohinder Pal PW8 Hem Raj PW9 Mohd. Accused person did not plead guilty and claimed trial. 3. The prosecution examined as many as thirteen witnesses in support of its case: Sr.No. Name of Witnesses PW1 Rajesh Kumar PW2 Prakash Chand PW3 Kissu Kumar PW4 Prittam Chand PW5 Sanjay Kumar PW6 Ajay Kumar PW7 Mohinder Pal PW8 Hem Raj PW9 Mohd. Khan PW10 Subhash Singh PW11 Sukesh Kumar PW12 Bhadur Singh PW13 Rajesh Kumar 3.1 Prosecution also produced following piece of documentary evidence in support of its case:- Sr.No. Description. Ext PA Seizure memo Ext PB Rukka Ext PC Inventory List Ext PD Jamatalasi memo Ext PE Specimen seal Ext PF Reseal memo Ext PW5/A Copy of rapat No.9 Ext PW5/B Copy of rapat No.13 Ext PW6/A Copy of rukka Ext PW6/B Special Report Ext PW7/A Copy of rapat No.16 Ext PW7/B Copy of rapat No.21 Ext PW7/C Copy of rapat No.22 Ext PW9/A Copy of rapat No.8 Ext PW9/B Copy of rapat No.7 Ext PW10/A NCB Form Ext PW11/A Spot Map Ext PW11/B Statement of Parkash Ext PW11/C Arrest memo Ext PW12/B FIR Ext PW13/A Ext PW13/A Report of CTL Kandaghat 4. Learned trial Court convicted the appellant under Section 20 of the ‘Act’ and sentenced the appellant to undergo rigorous imprisonment for a period of ten years and also imposed fine of Rs.1,00,000/- (Rs One lac). The learned trial Court further directed that in default of payment of fine the appellant shall further undergo rigorous imprisonment for a period of three years. Feeling aggrieved against judgment and sentence passed by Learned trial Court appellant filed present appeal on following memorandum of grounds of appeal. GROUNDS OF APPEAL: 5. It is pleaded that contraband is not connected with the appellant and possession of contraband is not proved from the appellant. It is further pleaded that search of the appellant was not conducted in accordance with law. It is pleaded that preparation of memos are also doubtful. It is further pleaded that link evidence is missing in the present case. It is further pleaded that seal is also not connected with the alleged contraband. It is further pleaded that seal was not produced in the Court. It is further pleaded that prosecution did not prove beyond reasonable doubt that seal remain intact from the stage of the seizure of the article up to the stage when contraband was sent to laboratory. It is further pleaded that seal was not produced in the Court. It is further pleaded that prosecution did not prove beyond reasonable doubt that seal remain intact from the stage of the seizure of the article up to the stage when contraband was sent to laboratory. It is further pleaded that sample taken in another case having been examined in the present case could not be ruled out. It is further pleaded that no specimen of seal was sent to the laboratory. It is further pleaded that seal on the sample sent for chemical analyst was not produced. It is further pleaded that dispatch of sample to CTL Kandaghat is full of doubt. It is further pleaded that scales on which alleged contraband was weighed not produced in the Court. It is further pleaded that scales and weights used by the prosecution were not verified. It is further pleaded that Chemical Examiner report is inadmissible. It is further pleaded that laboratory wherein the contraband was tested was not competent to test the contraband. It is further pleaded that complainant himself conducted the investigation in the present case which has caused a serious prejudice to the accused. It is further pleaded that sole testimony of police official could not be relied for the purpose of conviction. It is further pleaded that the witness examined by the prosecution were highly interested witness. It is pleaded that evidence led by the prosecution does not inspire any confidence. It is further pleaded that prosecution has not proved its case against the appellant beyond reasonable doubt. It is further pleaded that impugned judgment and sentence passed by the learned trial Court are contrary to law and facts. It is further pleaded that in alternative quantity of alleged charas was less than commercial quantity and the sentence imposed by the learned trial Court is very harsh. It is further pleaded that appellant is not in a position to pay the fine. Prayer for acceptance of appeal sought. 6. We have heard learned Advocate appearing on behalf of the appellant and learned Additional Advocate General appearing on behalf of the respondent and perused the entire record carefully. 7. Question that arises for determination before us in this appeal is whether learned trial Court on the basis of material on record was justified in convicting appellant. ORAL EVIDENCE ADDUCED BY PROSECUTION 8. 7. Question that arises for determination before us in this appeal is whether learned trial Court on the basis of material on record was justified in convicting appellant. ORAL EVIDENCE ADDUCED BY PROSECUTION 8. PW1 Constable Rajesh Kumar has stated that in the year 2004 he was posted in Police Post Banikhet. He has stated that on dated 13.11.2004 in the evening he along with HC Subhash Singh HC Shiv Lal HHC Ami Chand HHC Dev Raj and Constable Sanjay Kumar were on patrol duty and were present at Zero point Goli. He has stated that at 5.15 PM a Maruti car No. HP 47-1624 came from Chamba side. He has stated that car was stopped for checking. He has stated that Sh Tilak Raj was driving the car whereas the person who was sitting in it disclosed his name as Parkash Chand. He has stated that when they were checking the car a person came from Chauhra road side. He has stated that person had covered himself with a brown coloured shawl and when he saw police officials accused turned back and tried to flee away. He has stated that on the basis of the suspicion they chased the accused and overpowered him. He has stated that they searched the accused as the police officials suspected that accused might be carrying some illegal arms or ammunition. He has further stated that a ‘Pithu’ (bag) was recovered from the said person. He has stated that ‘Pithu’ was got opened and checked. He has stated that a parcel containing charas in the shape of balls and sticks recovered from ‘Pithu’. He has stated that the accused disclosed his name as Rafiq Mohammad. He has stated that he identified the accused in the Court. He has stated that thereafter HC Subhash Singh directed him to bring the weights and scale. He has stated that he brought the weights and scale from the shop of Sh Kishu Kumar. He has stated that thereafter the charas was weighed by HC Subhash Singh and it was found to be 2kg 500 grams. He has stated that out of the recovered charas two samples of 25 grams each were separated. He has stated that sample parts of the charas were put in two empty cigarette boxes. He has stated that those boxes were wrapped in the pieces of the cloth and sealed with seal impression ‘A’. He has stated that out of the recovered charas two samples of 25 grams each were separated. He has stated that sample parts of the charas were put in two empty cigarette boxes. He has stated that those boxes were wrapped in the pieces of the cloth and sealed with seal impression ‘A’. He has stated that bulk charas was also packed and sealed with seal impression ‘A’. He has stated that seal after use was handed over to Sh Parkash Chand. He has stated that entire case property was took into possession vide memo Ext PA which bears his signature. He has stated that thereafter HC Subhash Singh wrote rukka Ext PE which was handed over to him. He has stated that he took rukka to Police Station Dalhousie and handed it over to MHC. He has stated that after registration of FIR the case file was handed over to him by MHC and he came back with file to the spot and handed over it to HC Subhash Singh. He has stated that shawl Ext P1 bag Ext P2 and charas Ext P3 were recovered from the possession of accused. He has further stated that sample seal is Ext P4 which bears his signature. In cross examination he denied suggestion that accused did not meet him. He denied suggestion that charas was not recovered from the accused. He denied suggestion that shawl Ext P1 did not belong to the accused. He denied suggestion that he was not present at the spot. He denied suggestion that his signatures were taken on the seizure memo Ext PA in police post Banikhet. 8.1 PW2 Parkash Chand has stated that about ¾ years ago in the evening when he came back with vegetables to his shop at zero point Goli he found two constables sitting in his shop. He has stated that police officials took tea in his shop and then made him to sit in a car. He has stated that after reaching at zero point Goli they alighted from ‘Armada Jeep’ where the police officials moved around and then they sat in the vehicle and went to Devi Dehra side. He has stated that in Devi Dehra other police officials also came. He has stated that a bag of black colour was there. He has stated that big and small parcels were prepared by police and his signatures were obtained. He has stated that in Devi Dehra other police officials also came. He has stated that a bag of black colour was there. He has stated that big and small parcels were prepared by police and his signatures were obtained. He has stated that Ext P1 to Ext P4 bears his signatures. He has stated that in the next morning the police officials procured his signatures on various papers. He has stated that seizure memo Ext PA, inventory Ext PC, farad jamatalashi Ext PD bear his signatures. He has stated that no charas was recovered from the accused in his presence by the police. In cross examination he denied suggestion that accused came from Chauhra side. He denied suggestion that he had covered himself with a shawl. He denied suggestion that on seeing the police officials the accused tried to flee away from the spot. He denied suggestion that accused was caught by the police on the basis of the suspicion. He denied suggestion that charas was weighed in his presence. He denied suggestion that two samples of 25 grams each of charas were separated by the police officials in his presence. He denied suggestion that shawl of the accused was taken into possession by the police in his presence. 8.2. PW3 Kissu Kumar has stated that he run a vegetable shop in village Goli. He has stated that on dated 13.11.2004 a police constable came to his shop and took the weights and scale. He has stated that after some time the constable returned the scale to him. In cross examination he has stated that the weights were returned to him after 5/7 minutes. He has stated that his shop is about ½ kilometer away from zero point Goli. 8.3. PW4 Pritam Chand has stated that on dated 13.11.2004 HC Sukesh Kumar produced four parcels duly sealed with seal impression ‘A’ before SHO Bhadur Singh in his presence. He has stated that parcels were re-sealed by ASI Bhadur Singh by affixing the seal impression ‘B’. He has further stated that memo in this regard was prepared. He has stated that reseal memo Ext. PF bears his signature as a witness. He has stated that HC Mohinder Pal also signed the memo in his presence. He has further stated that on dated 14.11.2004 MHC handed over a sample parcel, sample seal and NCB form to him. He has further stated that memo in this regard was prepared. He has stated that reseal memo Ext. PF bears his signature as a witness. He has stated that HC Mohinder Pal also signed the memo in his presence. He has further stated that on dated 14.11.2004 MHC handed over a sample parcel, sample seal and NCB form to him. He has stated that he deposited the same in Kandaghat Laboratory. He has stated that on his return to police station he handed over the road certificate to MHC. He has stated that the case property remained intact in his possession. In cross examination he has stated that HC Sukesh Kumar had brought the parcels from zero point Goli. He has further stated that he does not remember the time. 8.4. PW5 Constable Sanjay Kumar has stated that on dated 13.11.2004 he along with HC Subhash Singh and other police officials were on patrol duty at zero point Goli. He has stated that at about 5.15 PM car No.HP-47-1624 came from Chamba side. He has stated that said car was being driven by Tilak Raj. He has stated that one Parkash Chand was sitting in the car. He has stated that the car was stopped by them for checking. He has stated that a person came from Chauhra side. He has stated that on seeing the police party the accused turned back and tried to run away from the spot. He has stated that the accused had covered himself with a brown coloured shawl. He has stated that they chased the accused and overpowered him. He has stated that after removal of the shawl a Pithu (bag) was recovered from the possession of the accused. He has stated that bag was opened and checked. He has stated that charas in the shape of sticks and balls recovered from it. He has stated that constable Rajesh Kumar was sent to bring the weights and scale. He has stated that on weighing the charas it came out to be 2kg 500 grams. He has stated that two samples of 25 grams each of charas were separated. He has stated that sample parts of the charas were put in two empty cigarette boxes and thereafter the same were wrapped and sealed with seal ‘A’. He has stated that bulk charas was also wrapped. He has stated that two samples of 25 grams each of charas were separated. He has stated that sample parts of the charas were put in two empty cigarette boxes and thereafter the same were wrapped and sealed with seal ‘A’. He has stated that bulk charas was also wrapped. He has stated that parcel was prepared and sealed with seal ‘A’. He has stated that shawl of the accused was also took into possession by the police. He has stated that a copy of rukka was handed over to him by HC Subhash Singh. He has stated that rapat Ext.PW5/A and Ext.PW5/B are correct as per the original record. In cross examination he denied suggestion that he was not present at the spot. He denied suggestion that no charas was recovered in his presence. 8.5. PW6 Constable Ajay Kumar has stated that on dated 13.11.2004 Constable Sanjay Kumar brought a copy of the rukka and handed over it to him. He has stated that he placed the same before Sh N.D.Sharma Additional SP Chamba for his perusal. He has stated that after going through the rukka ASP N D Sharma wrote the word ‘seen’ on it and then signed it. He has stated that the copy of rukka is Ext PW6/A. He has stated that on dated 14.11.2004 special report was received by him through constable Hem Raj. He has stated that the same was placed by him before SP Chamba. He has stated that after going through the special report SP Chamba signed it. He has stated that Ext PW6/B is the copy of special report. He has stated that these documents were kept by him in the record of SP office. He denied suggestion that copy of rukka was not brought to him by Constable Sanjay Kumar. 8.6. PW7 HC Mohinder Pal has stated that on dated 13.11.2004 HC Sukesh Kumar produced the parcels of charas duly sealed with seal ‘A’ for resealing purpose before ASI Bhadur Singh in his presence along with the sample seal and NCB form. He has stated that parcels of charas were re-sealed by ASI Bhadur Singh by affixing the seal impression ‘B’ in his presence. He has stated that memo Ext PF in this regard was prepared which bears his signatures as a witness. He has stated that thereafter ASI Bhadur Singh deposited the case property with him. He has stated that parcels of charas were re-sealed by ASI Bhadur Singh by affixing the seal impression ‘B’ in his presence. He has stated that memo Ext PF in this regard was prepared which bears his signatures as a witness. He has stated that thereafter ASI Bhadur Singh deposited the case property with him. He has stated that entries qua it were made by him in the Malkhana register. He has stated that on dated 14.11.2004 one part of the sample along with specimen seal impression and NCB form were sent by him to CTL Kandaghat through Constable Pritam Chand. He has stated that on his return to the Police Station Constable Pritam Singh handed over RC No 96 of 2004 to him. He has stated that during the period case property remained in his possession and same remained intact. He has stated that he had brought malkhana register, FIR register and RC register in the Court. He has stated that the seal has been lost and he did not produce seal in the Court. He has denied suggestion that he did not produce seal in the Court as it was not handed over to him by ASI Bhadur Singh. 8.7. PW8 Constable Hem Raj has stated that on dated 14.11.2004 ASI Bhadur Singh handed over special report Ext PW6/B relating to present case to him. He has stated that he brought it to the office of SP Chamba and gave it to Sh Ajay Kumar Assistant Reader to SP Chamba. 8.8. PW9 Constable Mohammad Khan has stated that he had brought the summoned record. He has stated that the copy of Ext PW9/A and Ext PW9/B are correct as per the original record. 8.9. PW10 HC Subhash Singh has stated that in the year 2004 he was posted in Police Post Banikhet. He has stated that on dated 13.11.2004 he along with HC Shiv Lal, HHC Dev Raj, HHC Ami Chand, Constable Rajesh Kumar and Constable Sanjay Kumar were on routine patrol duty at zero Point Goli. He has stated that at about 5.15 PM a car bearing No. HP 47-1624 came from Chamba side. He has stated that car was stopped for checking. He has stated that driver of the car disclosed his name as Tilak Raj. He has stated that person who was sitting in the car disclosed his name as Parkash Chand. He has stated that at about 5.15 PM a car bearing No. HP 47-1624 came from Chamba side. He has stated that car was stopped for checking. He has stated that driver of the car disclosed his name as Tilak Raj. He has stated that person who was sitting in the car disclosed his name as Parkash Chand. He has further stated that when they were checking the documents of the car accused present in the court came from Chauhra side. He has stated that accused had covered himself with a shawl. He has stated that when accused saw the police officials accused turned back. He has stated that on suspicion he along with the other police officials overpowered the accused. He has stated that they took off the shawl and found that the accused was carrying a ‘Pithu’ (Bag) of black and red colour. He has stated that zip of the bag was opened. He has stated that on checking of the bag charas in the shape of balls and sticks recovered. He has stated that on asking accused disclosed his name as Mohammad Rafiq. He has stated that thereafter he directed Constable Rajesh Kumar to bring the weights and scale. He has stated that Constable Rajesh Kumar brought the scale to the spot and charas was weighed. He has stated that on weighing the charas it was found to be 2Kg 500 grams. He has stated that two samples of 25 grams each of charas were separated. He has stated that sample parts of the charas were put in two empty cigarette boxes. He has stated that the parcels were prepared and sealed by affixing three seals each of seal impression ‘A’. He has stated that remaining charas weighing 2.450 grams placed in the same bag which was recovered from the accused. He has stated that the bag was wrapped in a piece of cloth and sealed with nine seals of seal impression ‘A’. He has stated that shawl of the accused was also taken into possession. He has stated that specimen impression Ext PE of the seal used was taken separately on a piece of cloth and the seal after use was handed over to Sh Parkash Chand. He has stated that entire case property was taken into possession vide memo Ext PA in the presence of the witnesses. He has stated that specimen impression Ext PE of the seal used was taken separately on a piece of cloth and the seal after use was handed over to Sh Parkash Chand. He has stated that entire case property was taken into possession vide memo Ext PA in the presence of the witnesses. He has stated that a copy of the memo was supplied to the accused free of costs. He has stated that NCB form Ext PW10/A was filled by him at the spot. He has stated that rukka Ext PB was sent by him through Constable Sanjay Kumar to the office of SP Chamba. He has stated that he had seen shawl Ext P1 bag of Charas Ext P2 and small parcel Ext P3. He has stated that all of parcels bear his signature. He has stated that the case property and the documents were handed over by him to HC Sukesh Kumar vide inventory list Ext PC for carrying further investigation in the matter. He has denied suggestion that Constable Rajesh Kumar was not present at the spot. He denied suggestion that a false case has been planted against the accused. 8.10. PW11 HC Sukesh Kumar has stated that in the year 2004 he was posted as Incharge Police Post Bheloon Cant Police Station Dalhousie. He has stated that on dated 13.11.2004 he was present in Police Station Dalhousie due to some official work. He has stated that at about 6.05 PM SHO Bhadur Singh directed him to proceed to zero Point Goli where HC Subhash Singh had caught the accused with charas. He has stated that he was directed by the SHO to go to the spot and investigate the matter. He has stated that he went to zero point Goli and reached at the spot at 6.30 PM. He has stated that HC Subhash Singh, HHC Ami Chand and other police officials and accused were also present at the spot. He has stated that HC Subhash Singh handed over the case property and other documents to him as per the inventory list Ext PC. He has stated that the search of the accused was conducted by him in the Police Station. Again stated that search of the accused was conducted at the spot and the case property was produced by him before ASI Bhadur Singh in the Police Station who resealed it. He has stated that the search of the accused was conducted by him in the Police Station. Again stated that search of the accused was conducted at the spot and the case property was produced by him before ASI Bhadur Singh in the Police Station who resealed it. He has stated that accused was lodged in the lockup. In cross examination he has stated that site plan Ext PW11/A was prepared by him. He has stated that NCB form was handed over to him and the same was filled. He denied suggestion that Sh Parkash Chand and Tilak Raj were not present at the spot. He denied suggestion that he recorded the statement of Sh Parkash Chand at the instance of HC Subhash Singh. 8.11. PW12 ASI Bhadur Singh has stated that in the year 2004 he was posted as Investigating Officer in Police Station Dalhousie. He has stated that on dated 13.11.2004 he was officiating as SHO. He has stated that HC Subhash Singh gave telephonic information in Police Station Dalhousie that he has apprehended accused Rafiq Mohammad with 2.5 Kgs charas at Zero Point Goli. He has stated that he directed HC Sukesh Kumar to proceed to the spot. He has stated that rukka Ext PB was received in Police Station through Constable Rajesh Kumar. He has stated that he made endorsement on Ext PW12/A and registered FIR Ext PW12/B which bears his signature. He has stated that after registration of the FIR the case file was handed over to Constable Rajesh Kumar. He has stated that on his return from Police Station HC Sukesh Kumar produced the parcels of charas before him. He has stated that he resealed the parcels with seal ‘B’ in the presence of the witnesses. He has stated that case property was handed over by him to HC Mohinder Pal for being deposited in the malkhana. He has stated that special report Ext PW6/B was sent by him through constable Hem Raj to SP Chamba. 8.12. PW13 Inspector Rajesh Kumar has stated that report of the Chemical Examiner Ext PW13/A was received in the Police Station. He has stated that after completion of the investigation he prepared the challan and supplementary challan and presented the same in the court. FACTOR NO. 1 WHICH IS FATAL TO PROSECUTION CASE. 9. 8.12. PW13 Inspector Rajesh Kumar has stated that report of the Chemical Examiner Ext PW13/A was received in the Police Station. He has stated that after completion of the investigation he prepared the challan and supplementary challan and presented the same in the court. FACTOR NO. 1 WHICH IS FATAL TO PROSECUTION CASE. 9. The submission of the learned Advocate appearing on behalf of the appellant that in the present case two views are possible and view favourable to the accused be adopted is accepted for the reason hereinafter mentioned. We have carefully perused the seizure memo Ext PA placed on record. As per seizure memo dated 13th November 2004 2kg 500 grams charas recovered from the exclusive and conscious possession of the appellant in the presence of the marginal witnesses namely PW1 Rajesh Kumar PW2 Parkash Chand and Tilak Raj. Prosecution has admitted that marginal witnesses of the seizure memo of charas are PW1 Rajesh Kumar, PW2 Parkash Chand and Tilak Raj. We have carefully perused the testimony of marginal witness of the recovery of charas namely PW1 Rajesh Kumar and PW2 Parkash Chand. The testimony of PW1 Constable Rajesh Kumar and PW2 Parkash Chand are contradictory to each other which has created doubt in the mind of the Court. PW1 Constable Rajesh Kumar has stated in positive manner that 2Kg 500 grams charas was recovered from the exclusive and conscious possession of the appellant. On the contrary another marginal eye witness of seizure memo namely PW2 Parkash Chand has specifically stated in positive manner that no charas was recovered from the exclusive and conscious possession of the accused. The prosecution did not examine another marginal witness namely Tilak Raj in the present case. In view of the contradictory testimony of PW1 Constable Rajesh Kumar and PW2 Parkash Chand qua recovery of contraband from appellant two views have emerged in the present case. It is well settled law that if two views are emerged in the prosecution case then view favourable to the accused should be adopted. FACTOR NO. 2 WHICH IS FATAL TO PROSECUTION CASE. 10. Another submission of the learned Advocate appearing on behalf of the appellant that PW7 HC Mohinder Pal when appeared in the witness box on 20th July 2006 did not produce original seal in the Court in order to compare the seal impressions affixed upon the parcels. FACTOR NO. 2 WHICH IS FATAL TO PROSECUTION CASE. 10. Another submission of the learned Advocate appearing on behalf of the appellant that PW7 HC Mohinder Pal when appeared in the witness box on 20th July 2006 did not produce original seal in the Court in order to compare the seal impressions affixed upon the parcels. In the present case the statement of PW7 HC Mohinder Pal was recorded in the Court on 20th July 2006 and he has stated before the Court that he could produce the seal in the Court. Thereafter cross examination of the witness PW7 HC Mohinder Pal was deferred at the request of the learned defense counsel and PW7 was directed to produce the seal on the next date of hearing. PW7 again appeared before the Court on 21st July 2006. He has stated that he could not produce original seal in the Court. He has stated that seal was lost. We are of the opinion that seal was the property of the present case and PW7 HC Mohinder Pal did not lodge any FIR in the Police Station qua lost of seal i.e. property of present case. Hence non-production of original seal in the Court and non-filing of the FIR qua lost of seal by PW7 HC Mohinder Pal has created doubt in the mind of the Court. It was held in case reported in Latest HLJ 2011 HP 1195 titled Nanha Vs. State that if original seal was not produced in the Narcotic Drugs and Psychotropic Substance Act in the court for comparison then conviction could not be recorded. It was held in case reported in (1998) 8 SCC 449 titled State of Rajasthan Vs. Gopal that if original seal not produced in the Court for verification of sample seal then case of the prosecution become doubtful. In the present case seal original was not produced in Court for comparison of seal hence the case of the prosecution becomes doubtful. Factor No. 3 which is fatal to prosecution case: 11. In the present case Chemical Analyst has submitted his report upon the NCB form. The Chemical Analyst did not submit his report upon the Performa issued by HP CTL Kandaghat. Factor No. 3 which is fatal to prosecution case: 11. In the present case Chemical Analyst has submitted his report upon the NCB form. The Chemical Analyst did not submit his report upon the Performa issued by HP CTL Kandaghat. No reason has been assigned by the Chemical Examiner as to why the Chemical Examiner has not submitted his report upon prescribed Performa issued by HP CTL Kandaghat and no reason has been assigned by the Chemical Examiner as to why the Chemical Examiner has submitted his report upon NCB form which also creates doubt in the mind of the Court. The Chemical Examiner has not submitted his examination report as per the Performa prescribed by the HP State Forensic Science Laboratory (FSL) Kandaghat. Normally the examination report of the expert has to be submitted as per Performa issued by the HP State FSL Kandaghat. Chemical Examiner has not submitted in his report that he conducted various scientific tests such as identification of chemical and chromatographic in the laboratory. Chemical Examiner has simply written words ‘Microscopic exam’ in the NCB form itself which is also fatal to the prosecution case. Factor No 4 which is fatal to prosecution case. 12. It is the case of the prosecution that 2.5 grams charas was recovered from the exclusive and conscious possession of the accused in the shape of balls and sticks from the bag of accused. It is also the case of the prosecution that two samples of charas 25 grams each were took out. There is no evidence on record that charas recovered in the shape of balls and sticks were made homogenous prior to taking two samples of 25 grams each which also creates doubt in the mind of the Court. (See Latest HLJ 2009 (HP) 1051 Samantha Black Vs. State of H.P.) 13. Submission of the learned Additional Advocate General appearing on behalf of the respondent that upon the testimony of PW1 PW3 PW4 PW5 PW6 PW7 PW8 PW9 PW11 PW12 and PW13 the conviction passed by the learned trial Court be sustained in the present case is rejected being devoid of any force for the reason hereinafter mentioned. In the present case PW3 Kissu Kumar is not eye witness and he is only link witness. He has simply taken weights and scales from the shop. In the present case PW3 Kissu Kumar is not eye witness and he is only link witness. He has simply taken weights and scales from the shop. PW4 Pritam Chand is also link witness and he has stated that sample parcel, sample seal and NCB form were deposited. PW5 Sanjay Kumar is not marginal eye witness of the seizure memo Ext PA placed on the record. Even testimony of PW6 Ajay Kumar is not helpful to the prosecution case because PW6 is only link witness and he has submitted special report in the office of SP Chamba. PW6 is also not the marginal eye witness of seizure memo of charas. Even the testimony of PW7 HC Mohinder Pal is also not helpful to the prosecution case. PW7 has simply stated that parcel of charas was re-sealed and he is also not marginal eye witness of seizure memo Ext PA placed on the record and he has not signed the seizure memo Ext PA. Even testimony of PW8 Constable Hem Raj is not helpful to the prosecution case. PW8 is also link witness and he has simply stated that he handed over special report in the office of SP Chamba. PW8 is not marginal eye witness of seizure memo Ext PA placed on record qua recovery of charas. Even testimony of PW9 Constable Mohamad Khan is also not helpful to the prosecution case because he is only a link witness. PW9 is also not marginal eye witness of seizure memo Ext PA placed on the record. Even PW10 Subhash Singh is also not marginal eye witness of seizure memo Ext PA placed on record. As per seizure memo Ext PA placed on record by the prosecution the marginal witnesses are only mentioned as Parkash Chand, Tilak Raj and Rajesh Kumar. PW12 ASI Bhadur Singh and PW13 Inspector Rajesh Kumar are also not cited as marginal witness of seizure memo Ext PA placed on record. 14. As per seizure memo Ext PA placed on record by the prosecution the marginal witnesses are only mentioned as Parkash Chand, Tilak Raj and Rajesh Kumar. PW12 ASI Bhadur Singh and PW13 Inspector Rajesh Kumar are also not cited as marginal witness of seizure memo Ext PA placed on record. 14. Another submission of the learned Additional Advocate General appearing on behalf of the respondent that on the basis of documentary evidence Ext PA Ext PB Ext PC to Ext PF Ext PW5/A Ext PW5/B Ext PW6/A Ext PW6/B Ext PW7/A Ext PW7/B Ext PW7/C Ext PW9/A Ext PW9/B Ext PW10/A Ext PW11/A Ext PW11/B Ext PW11/C Ext PW12/B and Ext PW13/A the appeal filed by the appellant be dismissed is also rejected being devoid of any force for the reason hereinafter mentioned. We have perused all the documents placed on the record carefully. We are of the opinion that material document in the present case is the seizure memo Ext PA placed on the record. In seizure memo Ext PA placed on record the marginal witness of recovery of charas has been cited as Parkash Chand, Tilak Raj and Rajesh Kumar. In the present case the prosecution did not examine Tilak Raj the independent marginal witness of recovery of charas and the prosecution has only examined marginal witness of recovery namely Parkash Chand and Rajesh Kumar and both Parkash Chand and Rajesh Kumar have given contradictory statement qua recovery of the charas from the exclusive and conscious possession of the accused. PW2 Parkash Chand has stated in positive manner that no charas was recovered from the exclusive and conscious possession of the accused and PW1 Rajesh Kumar has stated that charas was recovered from the exclusive and conscious possession of the accused. We are of the opinion that in view of the two contradictory testimony of marginal witness of seizure memo, namely Parkash Chand and Rajesh Kumar it is not expedient in the ends of justice to convict the accused in the present case because in the present case two views have emerged. It was held in case reported in 1998(2) SLJ 1408 Shashi Pal and others Vs. State of HP that if two versions appear in prosecution evidence then version beneficial to the accused should be adopted. Also see 1993(1) SLJ 405 titled State of HP Vs. It was held in case reported in 1998(2) SLJ 1408 Shashi Pal and others Vs. State of HP that if two versions appear in prosecution evidence then version beneficial to the accused should be adopted. Also see 1993(1) SLJ 405 titled State of HP Vs. Sudarshan Singh, See 1995 (3) SLJ 1819 titled State of Himachal Pradesh Vs. Inder Jeet and others, See 1995(4) SLJ 2728 titled State of HP Vs. Diwana and others. It was held by Apex Court of India in Criminal Appeal No. 1320 of 1999 decided on 12th April 2005 titled State of U.P. Vs. Gambhir Singh and others that if two views are reasonably possible then view favourable to the accused must be preferred. Also see 2005 (5) JT 553 titled State of UP Vs. Gambhir Singh and others. It was held in case reported (2005) 9 SCC 765 titled Anjlus Dungdung Vs. State of Jharkhand that suspicion however strong cannot take place of proof. It was held in case reported in (2010) 11 SCC 423 titled Nanhar Vs. State of Haryana that prosecution must stand or fall on its own leg and it cannot derive any strength from the weakness of the defense. Also See: (1984) 4 SCC 116 Sharad Birdhichand Sarda Vs. State of Maharashtra. It is well settled law that conjecture or suspicion cannot take place of legal proof. See: AIR 1967 SC 520 Charan Singh Vs. The State of Uttar Pradesh. Also See: AIR 1971 SC 1898 Gian Mahtani Vs. State of Maharashtra. It was held in case reported in AIR 1979 SC 1382 State (Delhi Administration) Vs. Gulzarilal Tandon that even where the circumstances raise a serious suspicion against the accused it cannot take the place of legal proof (Also See: AIR 1983 SC 906 titled Bhugdomal Gangaram and others Vs. The State of Gujarat See: AIR 1985 SC 1224 titled State of UP Vs. Sukhbasi and others.) 15. In view of the above stated facts we hold that in the present case two views have emerged and we adopt the view favourable and beneficial to the accused person. We hold that the learned trial Court has not properly appreciated the oral as well as documentary evidence produced by the prosecution in the present case. We hold that conviction awarded by the learned trial Court is contrary to law and contrary to proved facts. We hold that the learned trial Court has not properly appreciated the oral as well as documentary evidence produced by the prosecution in the present case. We hold that conviction awarded by the learned trial Court is contrary to law and contrary to proved facts. Hence the judgment of conviction and sentence passed by the learned trial Court are set aside keeping in view the fact that two views have emerged in the present case qua recovery of contraband from the possession of appellant. Case property will be confiscated to the State strictly in accordance with law after expiry of period of limitation of filing further proceedings before Competent Court of law. Appellant be released forthwith if not required in any other case. Release warrant be issued forthwith. Appeal stands disposed of so also pending application(s) if any.