JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 7.5.2015, passed by the learned Special Judge, Mandi, Distt. Mandi, H.P. in Sessions Trial No. 35 of 2010, titled as State of Himachal Pradesh vs. Dhabe Ram, whereby the appellant-accused stands convicted for having committed offences punishable under the provisions of Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of three years and fine of Rs.30,000/- for offence punishable under Section 20 of the Act and rigorous imprisonment for a period of two years and fine of Rs.20,000/- for offence punishable under Section 18 of the Act, he has filed the present appeal under the provisions of Section 374 of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that on 1.3.2010 police party headed by ASI Mehar Singh (PW-11), comprising of HC Dharam Pal (PW-1), PSI Naveen Jhalta and Constable Amar Singh (both not examined) laid naaka at Bindrabani. At about 2.15 p.m., bus bearing No. HP65 2571, in which accused was sitting was stopped for checking. Seeing the police party, accused who was sitting on seat No. 29, became perplexed. On suspicion, in the presence of driver Kishan Singh (not examined) and conductor Ramesh Kumar (PW-2), after obtaining consent (Ext. PW-1/A), accused was searched. From his personal search, police recovered two polythene packets wrapped around his abdomen with a cello tape containing charas and opium, which upon weighment, were found to be 370 grams and 90 grams respectively. The entire bulk parcel was sealed with seal impression-H and seized vide memo (Ext. PW-1/E). Ruka (Ext. PW-1/F) sent through Const. Amar Singh (not examined), led to registration of F.I.R. No. 82 of 2010, dated 1.3.2010 at Police Station Sadar, Mandi, Distt. Mandi, H.P., against the accused under the provisions of Sections 18/20 of the Act. With the completion of proceedings on the spot, including filling up of NCB forms(Ext. PW-1/C), in triplicate, and arrest of the accused, case property was produced before SI/SHO Mohan Lal (PW-4), who after resealing the same with seal impression-T, deposited it with Addl. MHC Anil Kumar (PW-3) incharge of the Maalkhana. Constable Roshan Lal (PW-5) took the case property for chemical analysis to the State Forensic Science Laboratory at Junga vide Road Certificate (Ext. PW-3/C) and report (Ext. MHC Anil Kumar (PW-3) incharge of the Maalkhana. Constable Roshan Lal (PW-5) took the case property for chemical analysis to the State Forensic Science Laboratory at Junga vide Road Certificate (Ext. PW-3/C) and report (Ext. PW-3/E) obtained through HC Sushil Kumar (PW-7) was taken on record by the police which revealed the contraband substance to be charas and opium. Special report (Ext. PW- 6/A) was sent through HHC Dalip Singh (PW-6) to the office of Dy. Superintendent of Police, Mandi. With the completion of investigation, which prima facie revealed complicity of the accused person in the alleged crime, challan was presented in the Court for trial. 3. Accused was charged for having committed offences punishable under the provisions of Sections 18 and 20 of the Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as twelve witnesses and the statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he pleaded false implication. No evidence in defence was led by the accused. 5. Appreciating the material placed on record by the prosecution, trial Court convicted the accused for the charged offences and sentenced as aforesaid. Hence the present appeal. 6. Having heard learned counsel for the parties as also perused the record, I am of the considered view that the reasoning adopted by the trial Court is perverse and is not based on correct and complete appreciation of testimonies of the witnesses. Judgment in question is not based on correct and complete appreciation of evidence and material placed on record, causing serious prejudice to the accused, resulting into miscarriage of justice. 7. In Shivaji Sahabrao Bobade and another Versus State of Maharashtra, (1973) 2 SCC 793 , the apex Court, has held that: “…….Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code". …. …. (Emphasis supplied) 8. …. …. (Emphasis supplied) 8. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603 , has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused. 9. Also it is settled position of law that graver the punishment the more stringent the proof and the obligation upon the prosecution to prove the same and establish the charged offences. 10. Trial Court convicted the accused on the following grounds: (i) Prosecution was able to establish recovery of the contraband substance from the conscious possession of the accused. (ii) Testimonies of police officials stand corroborated by independent witness. (iii) Contradictions pointed out by the accused, being minor in nature, in no manner render the version of the prosecution case to be false or doubtful. (iv) Statutory presumption remains unrebutted by the accused. 11. The genesis of the prosecution story of the police party having left police station Sadar, Mandi on traffic checking and checking of narcotic substances towards Bindrawani, National Highway No. 21, does not appear to have been proved beyond reasonable doubt. It is common case of HC Dharam Pal (PW-1) and ASI Mehar Singh (PW-11) that the police party left the police station in a private bus. Now significantly PSI Naveen Jhalta and Constable Amar Singh, the other members of the police party, were not examined in Court. ASI Mehar Singh states that the police party left the police station at 11.15 a.m. whereas Dharam Pal states it to be at 11.45 a.m. The contradiction with regard to the timing being minor acquires significance when it is found that the witnesses do not remember the vehicle in which they left for Bindrabani. Neither the make nor the type of the vehicle is disclosed. Police officials, four in number, left with a purpose, that is, checking of narcotic substances. Was any fare paid? Who hired the vehicle? Did the police take lift? Was there no official vehicle available? All these questions remain unanswered. 12. Further according to Dharam Pal, after reaching Bindrabani police party set up naaka on the National Highway No. 21. But Mehar Singh states that such naaka already stood set up before the party reached Bindrawani. Was any fare paid? Who hired the vehicle? Did the police take lift? Was there no official vehicle available? All these questions remain unanswered. 12. Further according to Dharam Pal, after reaching Bindrabani police party set up naaka on the National Highway No. 21. But Mehar Singh states that such naaka already stood set up before the party reached Bindrawani. Thus genesis of the prosecution story is rendered to be doubtful. 13. Prosecution wants the court to believe that in the presence of the conductor (PW-2) and driver (not examined) of the bus, Mehar Singh apprised the accused of his statutory rights and after obtaining his consent vide memo (Ext. PW-1/A), not only gave his personal search but all the police officials were searched by the accused and only thereafter, accused was searched and recovery effected from his person, who had tied packets containing 370 grams charas and 90 grams opium with cello tape around his abdomen. At that time accused was sitting on seat No. 29 of the bus which was checked by the patrol party. 14. Perusal of testimonies of these witnesses only establishes contradictions in their versions to be material. (i) Ramesh Kumar states that two police officials entered the bus from each of the two doors of the bus, whereas Mehar Singh states that only he entered the bus from the front door and the remaining three police officials entered from the rear door. (ii) Ramesh Kumar states that accused was sitting on seat No. 29 with another passenger sitting besides him. Though Dharam Pal feigned ignorance about such fact but Mehar Singh is emphatic that accused was alone. (iii) It is common case of all these witnesses that inside the bus there were other passengers (20 to 30). Ramesh Kumar states that except for accused, no other passenger was searched. Why so? He does not clarify. Be that as it may be, though Dharam Pal is silent on this aspect but Mehar Singh is categorical that even other passengers were searched by other police officials. Hence version of Mehar Singh stands belied and contradicted. (iv) Ramesh Kumar states that seat No. 29 was immediately before the rear door, but Mehar Singh states that it was in the middle of the bus. All these contradictions when viewed cumulatively render the testimonies of the witnesses to be shaky and prosecution case to be extremely doubtful. Hence version of Mehar Singh stands belied and contradicted. (iv) Ramesh Kumar states that seat No. 29 was immediately before the rear door, but Mehar Singh states that it was in the middle of the bus. All these contradictions when viewed cumulatively render the testimonies of the witnesses to be shaky and prosecution case to be extremely doubtful. It appears that either all the members of the police party were not present or no recovery was affected in the manner in which the police want the court to believe. 15. But what totally knocks down the prosecution case is the fact that constable Amar Singh, who carried the ruka from the spot to the police station, was given up by the prosecution. Also Kishan Singh, driver of the bus and PSI Naveen Khalta the other police official present on the spot have not been examined. Why so? has not been explained. 16. Now who registered the F.I.R. has not been proved on record. All this acquires significance in view of the fact that there is over writing on document (Ext. PW- 1/C) with regard to the time at which the parcel was sent to the police station. It has come in the testimony of Mehar Singh that Amar Singh took ruka to the police station at 3.15 p.m. Now how did Amar Singh travel up to the police station? Who registered the F.I.R.? Who brought the case file alongwith the F.I.R. back to the spot? How did such person travel? All these questions remain un-explained by the prosecution. The unexhibited document i.e. F.I.R. reveals it to be registered on 1.3.2010 at 3.35 p.m. Now if it took only half an hour for Amar Singh to reach the police station, then how is it that police party, after completing the proceedings on the spot, reached the police station at 6.25 p.m., the time of resealing as per memo Ext. PW-3/A. It is common case of the witnesses that entire proceedings stood completed within four hours and it would not have been possible for the police to have reached the police station, on foot, by that time, for it is not the case of the prosecution that police returned by transport vehicle. 17. There is yet another reason which renders the prosecution case to be fatal. 17. There is yet another reason which renders the prosecution case to be fatal. According to police officials accused gave his consent of being searched by the police officials present on the spot. Now consent memo (Ext. PW- 1/A) reveals that the accused is illiterate as the document bears his thumb impression. Even his statement under Section 313 Cr. P.C. is thumb marked and not signed. Neither from the testimonies nor from the document it can be inferred that the contents of the document were either read over or explained to the accused. In absence thereof, and in view of recovery having been effected from the person of the accused, it cannot be said that there has been compliance of mandatory provisions of Section 50 of the Act. 18. Police officials want the court to believe that before they searched the accused, he searched them. But then there is no such search memo on record. The improbability or falsehood in the testimonies is quite apparent. 19. Contradiction is also with regard to the link evidence. And it is material. MHC Anil Kumar (PW-3) states that on 20.3.2010, through Constable Roshan Lal (PW-5), the case property was sent for chemical analysis to the State Forensic Science Laboratory Junga. But then Constable Roshan Lal states that he took the parcel on 2.3.2010. The contradiction which is not a typographical error, does not end here with the improbabilities getting bigger, bolder and prominent. According to Roshan Lal, receipt of deposit, on his return, was handed over to the MHC at the police station. But Anil Kumar is absolutely silent and the receipt has neither been placed nor proved on record. Further according to Anil Kumar, on 14.4.2010 he directed constable Sushil Kumar No. 561 to bring the case property and the F.S.L. report, which was duly brought and entered in the record. However, Sushil Kumar (PW-7) by stepping into the witness box has stated that he only brought the report from F.S.L. Junga and that too on 13.4.2010. Constable Roshan Lal does not even remember the time when he received the case property and left for Junga. Anil Kumar does not remember the time when the case property was sent or received from F.S.L. Junga. Now all these contradictions and missing links have not been explained by the prosecution rendering the case to be extremely doubtful. 20. Constable Roshan Lal does not even remember the time when he received the case property and left for Junga. Anil Kumar does not remember the time when the case property was sent or received from F.S.L. Junga. Now all these contradictions and missing links have not been explained by the prosecution rendering the case to be extremely doubtful. 20. There is yet another unexplained and unanswered doubt emanating from the record. None of the police officials state that the police party was carrying scales with them. The Investigating Officer Mehar Singh does not state that he was carrying the I.O. Kit. If this was so, then from where the scales and weights were brought and how the contraband substance was weighed, remains unexplained. 21. All these contradictions, improbabilities, embellishments stood ignored by the trial Court and as such, findings returned on all the points being perverse and contrary to law are unsustainable in law. 22. Findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence. 23. Since prosecution has not been able to establish its case of having recovered the contraband substance from the conscious possession of the accused, no statutory presumption as envisaged under Section 35 of the Act, can be drawn against the accused. 24. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence dated 7.5.2015, passed by the learned Special Judge, Mandi, Distt. Mandi, H.P. in Sessions Trial No. 35 of 2010, titled as State of Himachal Pradesh vs. Dhabe Ram, is set aside and the accused is acquitted of the charged offences. He be released from jail, if not required in any other case. Amount of fine, if deposited by the accused, be refunded to him. Release warrants be prepared accordingly. Appeal stands disposed of, so also pending application(s), if any.