JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 24.1.2015, passed by learned Special Judge (I), Una, H.P. in Sessions Trial No. 28 of 2014, titled as State of Himachal Pradesh vs. Kartik Singh, whereby appellant-accused stands convicted for having committed an offence punishable under the provisions of Section 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 pay fine of Rs.20,000/- and in default thereof, to further undergo simple imprisonment for a period of six months, he has filed the present appeal under the provisions of Section 374(2) of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that on 5.4.2014, police party headed by ASI Gaurav Bhardwaj (PW-10), comprising of HC Satish Kumar (PW-9), HC Vijay Kumar, HHC Khushvinder Pal (both not examined) and Constable Rajesh Kumar (PW-7) were on patrol and excise checking duty near Nagran. At about 10.40 p.m. when they reached at a place which was 200 mts. from Rampur Bazaar, they saw a man carrying a red coloured bag. Seeing the police party, hiding the bag, he tried to flee away. On suspicion he was nabbed. In the meanwhile two persons who were coming on scooter bearing No. HP-20-1440 from Nagran side, were associated as witnesses. In the presence of Sohan Lal (PW-5) and Yashpal (not examined), accused was interrogated. On suspicion, red coloured bag carried by him was checked and 17 round shaped rolls, which appeared to be charas, were recovered. Scale for weighing the contraband substance was brought from the shop of one Shiv Lal (PW-6) and upon weighment was found to be 215 grams. The recovered stuff was kept in the very same bag, sealed with seal impression-A and seized vide memo (Ext. PW-5/A). Ruka (Ext. PW-4/A) sent through Const. Rajesh Kumar (PW-7), led to registration of F.I.R. No. 87 of 2014, dated 6.4.2014 (Ext. PW-4/B) at Police Station Sadar, Una, Distt. Una, H.P., against the accused under the provisions of Section 20 of the Act. With the completion of proceedings on the spot, including filling up of NCB form (Ext. PW-5/A). Ruka (Ext. PW-4/A) sent through Const. Rajesh Kumar (PW-7), led to registration of F.I.R. No. 87 of 2014, dated 6.4.2014 (Ext. PW-4/B) at Police Station Sadar, Una, Distt. Una, H.P., against the accused under the provisions of Section 20 of the Act. With the completion of proceedings on the spot, including filling up of NCB form (Ext. PW-4/C), in triplicate, and arrest of the accused, case property was produced before SHO Krishan Lal Beri (PW-4), who after resealing the same with seal impression-R deposited it with MHC Puran Bhagat (PW-8) incharge of the Maalkhana. LHC Rajiv Kumar (PW-3) took the case property for chemical analysis to the State Forensic Science Laboratory at Junga vide Road Certificate No. 65/14 and report (Ext. PX) taken on record by the police which revealed the contraband substance to be charas. Special report (Ext. PW-2/A) himself taken by the Investigating Officer (PW-10) was handed over to the Superintendent of Police, Una. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. The accused was charged for having committed an offence punishable under the provisions of Section 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 eleven 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 him. 5. Appreciating the material placed on record by the prosecution, trial Court convicted the accused for the charged offence and sentenced him 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. 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. 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 grounds that (i) testimonies of the police officials duly corroborated by the independent witness revealed the prosecution case to have been established beyond reasonable doubt and (ii) statutory presumption remains unrebutted by the accused. 11. Through the testimonies of independent witness Sohan Lal (PW-5) and police officials Constable Rajesh Kumar (PW-7), HC Satish Kumar (PW-9) and ASI Gaurav Bhardwaj (PW-10), prosecution has tried to establish, beyond reasonable doubt, recovery of the contraband substance from the conscious possession of the accused. However, minute examination of testimonies of these witnesses only reveals the contradictions, which are material, rendering the genesis of the prosecution case to be extremely doubtful. Witnesses cannot be said to be worthy of credence or wholly reliable. There are contradictions and improvements. 12. SI Gaurav Bhardwaj states that on 5.4.2014 he alongwith Constable Rajesh Kumar (PW-7), HC Satish Kumar (PW-9), HC Vijay Kumar and HHC Khushvinder Pal (both not examined) was on patrol duty. Witnesses cannot be said to be worthy of credence or wholly reliable. There are contradictions and improvements. 12. SI Gaurav Bhardwaj states that on 5.4.2014 he alongwith Constable Rajesh Kumar (PW-7), HC Satish Kumar (PW-9), HC Vijay Kumar and HHC Khushvinder Pal (both not examined) was on patrol duty. At about 10.40 p.m. when the police party was a little ahead of Rampur Bazar, towards Nagran, they saw the accused on the road. The witness does not state that the police party had torch light(s) or were travelling in any vehicle. He states that the accused was spotted in the lights of a vehicle which was passing by. Seeing the police party, accused who was carrying a red coloured bag, while concealing the same behind his back, tried to flee away. On suspicion, he was apprehended. In the meanwhile Sohan Lal and Yashpal came on a two wheeler and after associating them as independent witnesses, bag so carried by the accused was searched. Inside the bag there was another “purple” coloured bag with the word “Bliss” inscribed thereon and inside this, there was another transparent polythene bag from which 17 round shaped ‘rolls’ of charas were recovered. On his asking, Rajesh Kumar brought the scales and upon weighment, the rolls were found to be of 215 grams. Thereafter the contraband substance so recovered was put in the very same bags and sealed in a cloth parcel with six seals of impression-A, sample of which was also taken on a separate piece of cloth (Ext. PW-7/A). NCB form (Ext. PW- 4/C) was filled up on the spot and seal impression affixed thereupon. The recovered contraband substance was taken into possession vide memo (Ext. PW-5/A). Ruka (Ext.PW-4/A) prepared by him was sent through Rajesh Kumar on the basis of which F.I.R stood registered. Prior to his return with the case file, statements of the witnesses were recorded. Thereafter accused was arrested vide memo (Ext. PW-10/B). Witness identifies the contraband substance (Ext. P-5) to be charas which in the Court was found to be in the form of powder. 13. On first brush, such version appears to be true and duly corroborated by Sohan Lal (PW-5), Constable Rajesh Kumar (PW-7) and HC Satish Kumar (PW-9). However, close scrutiny of their testimonies reveal it not to be so. Significantly Yashpal, HC Vijay Kumar, HHC Khushvinder Pal were not examined in court. 13. On first brush, such version appears to be true and duly corroborated by Sohan Lal (PW-5), Constable Rajesh Kumar (PW-7) and HC Satish Kumar (PW-9). However, close scrutiny of their testimonies reveal it not to be so. Significantly Yashpal, HC Vijay Kumar, HHC Khushvinder Pal were not examined in court. In fact some of them were given up. Presence of Sohan Lal (PW-5) and Constable Rajesh Kumar (PW-7) on the spot appears to be doubtful. The contradictions which are relevant are as under:- 1. Sohan Lal refers to the colour of the bag containing the contraband substance to be sky blue but police officials state it to be red in colour. 2. Sohan Lal states that inside the red bag, two polythene bags, one violet in colour and another transparent were found. But Rajesh Kumar refers to only one violet coloured polythene bag. But then what is relevant is the fact that Satish Kumar refers the colour of the bag to be purple and Gaurav Bhardwaj talks about two bags, one transparent and the other one purple in colour. 3. Gaurav Bhardwaj specifically does not state whether he conducted personal search of the accused or not. But admits not to have prepared any memo of personal search or consent. However, Rajesh Kumar states that accused was searched by Gaurav Bhardwaj which version also stands materially contradicted by Sohan Lal 4. According to Sohan Lal and Rajesh Kumar the contraband substance recovered was in the shape of marbles. Whereas Satish Kumar and Gaurav Bhardwaj state it to be in the shape of “rolls”. Undisputedly, the stuff produced before the court is neither in the shape of marble nor in the shape of rolls. It is powdery. 14. The contradictions do not end here. Even with regard to recording of statements of the witnesses, there are material contradictions. Satish Kumar states that his statement was recorded after registration of the F.I.R., when the case file was brought to the spot. But Gaurav Bhardwaj states it was done much prior thereto. Not only that, Gaurav Bhardwaj states that all such statements stood recorded on the spot which version stands belied by Rajesh Kumar according to whom it was so done at the police station. Further Gaurav Bhardwaj is categorical that he did not scribe such statements. Also he does not remember who did it. Not only that, Gaurav Bhardwaj states that all such statements stood recorded on the spot which version stands belied by Rajesh Kumar according to whom it was so done at the police station. Further Gaurav Bhardwaj is categorical that he did not scribe such statements. Also he does not remember who did it. But according to Rajesh Kumar it was so done by Gaurav Bhardwaj. 15. Now all this renders the prosecution case with regard to recovery having been effected from the conscious possession of the accused to be extremely doubtful. 16. Improbabilities in the prosecution case further render it to be doubtful. None of the police officials state that they were having any torch light with them. The alleged recovery was made in the middle of night. Sohan Lal states that his statement was recorded under the solar light, which is not the case of other witnesses. Police party was on patrol duty in connection with detection of crime relating to offences under the Excise Act. They were on foot. Gaurav Bhardwaj wants the Court to believe that the accused was spotted in the head light of the vehicle which was passing by. What was its make and number or where did the said vehicle go to? remains unexplained on record. The alleged recovery was made at a place which was 200 mts. ahead of Rampur Bazar. Now why would police party move in absolute darkness remains unexplained by them. 17. In fact, Sohan Lal and Const. Rajesh Kumar are not even sure as to whether the case property produced in the Court was the one which was recovered or not. 18. There is yet another improbability which has emerged on record. According to Const. Rajesh Kumar, he went to the shop of Shiv Lal (PW-6) and brought the weighing scale. Such version appears to be doubtful. He does not disclose his mode of transportation. 18. There is yet another improbability which has emerged on record. According to Const. Rajesh Kumar, he went to the shop of Shiv Lal (PW-6) and brought the weighing scale. Such version appears to be doubtful. He does not disclose his mode of transportation. Further his version of having carried ruka to the police station does not inspire confidence for it is common case of the prosecution that Rajesh Kumar left the spot with the ruka to the police station at 11.50 p.m. which he handed over to SHO Krishan Lal (PW-4) at 12.20 a.m. SHO gave the file to him at 1.10 a.m. and he in turn, handed it over to Gaurav Bhardwaj, on the spot at 1.20 a.m. Now Rajesh Kumar does not disclose the mode of his transportation up to the police station. It is also not his case that from the spot he went somewhere else. The difference in time, of more than 20 minutes, which this witness took in reaching the police station and coming back to the spot, further renders the prosecution story to be doubtful. 19. Prosecution version, that seeing the police party accused tried to conceal the bag behind his back is not so recorded in the statements of the witnesses, more specifically that of Sohan Lal who was confronted with the same. 20. There is no evidence on record to establish as to how the case property was taken out of the maalkhana. 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. 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, 24.1.2015, passed by the learned Special Judge (I), Una, H.P. in Sessions Trial No. 28 of 2014, titled as State of Himachal Pradesh vs. Kartik Singh, is set aside and the accused is acquitted of the charged offence. 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.