JUDGMENT : Rajiv Sharma, Judge Since all the appeals arise out of a common Judgment, as such were taken up together and are being disposed of vide this judgment. 2. The present appeals have been instituted against Judgment and Order dated 27.3.2015/30.3.2015, respectively, rendered by learned Special Judge, Kinnaur Sessions Division at Rampur Bushahar (HP) in Sessions Trial No. 0100031/2009, whereby accused-appellants (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offences under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake) and Section 181 of the Motor Vehicles Act, 1988, have been convicted. Accused Puran Chand has been sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs.1.00 Lakh for the offence under Section 20 of the Act and, in default of payment of fine, to further undergo simple imprisonment for a term of one year. Accused Sarvan Kumar was sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs.1.00 Lakh for the offence under Section 29 of the Act, and, in default of payment of fine, to further undergo simple imprisonment for a term of one year. Accused Pawan Kumar was sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs.1.00 Lakh for the offence under Section 29 of the Act, and in default of payment of fine, to further undergo simple imprisonment for one year. Accused Pawan Kumar has further been convicted and sentenced to pay a fine of Rs.1,000/- for offence under Section 181 of Motor Vehicles Act, 1988, and, in default of payment of fine, to undergo simple imprisonment for one month. 3. Case of the prosecution, in a nutshell, is that on 27.6.2009 at about 4 am, a police party headed by ASI Prem Lal, In-charge police post Luhri, Police Station Anni accompanied by HHC Darshan Singh No. 193, Constable Sunder Singh No. 301 and Constable Naresh Kumar No.336 left the police post for routine night patrol duty towards Luhri. The police officials during the course of patrolling set up a Naka near APMC Check Post in the presence of In-charge Shiv Ram Thakur. The police officials during the course of patrolling set up a Naka near APMC Check Post in the presence of In-charge Shiv Ram Thakur. At about 4.45 am, police intercepted a black coloured Maruti Alto car bearing registration No. HP-62-1216 coming from Nither side. Vehicle was stopped for checking. The car was being driven by Pawan Kumar, Sarvan Kumar alias Sunil was occupying front seat and accused Puran Chand was sitting in the rear seat of the car and holding a polythene bag in his left hand on his lap. ASI Prem Lal asked the accused Pawan Kumar to show the documents of the vehicle but he failed to do so. Identities of the accused persons were ascertained. ASI Prem Lal informed the accused persons that he intends to conduct search of the vehicle as well as their personal search on the suspicion of carrying some contraband. ASI Prem Lal thereafter gave option to the accused persons under Section 50 of the Act either to be searched by a police officer or before a gazetted officer or a Magistrate. Separate consent memos to this effect were prepared by ASI Prem Lal. ASI Prem Lal gave his personal search to the accused. Accused persons exercised their options to be searched by a police officer. During the course of search, police recovered one red polythene bag from the possession of accused Puran Chand. It was searched. Black and brown coloured substance in the shape of balls was recovered. It was found to be charas. Charas was weighed with the help of an electronic scale and it was found to be 2.1 kg. Pursuant to the recovery of contraband from Puran Chand, sealing and seizure formalities were completed by the police in the presence of independent witness Shiv Ram Thakur. Contraband was put in the same polythene bag and it was thereafter sealed with six impressions of ‘T’. Signatures of witnesses were obtained on sealed parcel. Thereafter the IO filled in NCB form in triplicate. Seal ‘T’ after use was handed over to Shiv Ram Thakur. IO prepared Rukka at 6.30 am and sent the same to the Police Station Anni, for the registration of FIR. On the basis of Rukka, FIR No. 64/2009 dated 27.6.2009, was registered against the accused persons under Sections 20 and 29 of the Act alongwith Sections 181 and 192 of the Motor Vehicles Act. Accused were arrested. IO prepared Rukka at 6.30 am and sent the same to the Police Station Anni, for the registration of FIR. On the basis of Rukka, FIR No. 64/2009 dated 27.6.2009, was registered against the accused persons under Sections 20 and 29 of the Act alongwith Sections 181 and 192 of the Motor Vehicles Act. Accused were arrested. Case property was presented before Pankaj Sharma, Deputy Superintendent of Police(P) (SHO) Police Station Ani for the purpose of resealing. Resealing was completed. Sealed parcel duly sealed with 6 seals of ‘T’ was resealed by Pankaj Sharma, Deputy Superintendent of Police (P) by affixing three seal impressions of ‘H’. Contraband was sent for chemical examination to the Forensic Science Laboratory Junga. Investigation was completed and Challan was put up in the Court after completing all the codal formalities. 4. Prosecution has examined as many as 12 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. Their case was that of denial simpliciter. According to them, they were falsely implicated. Trial Court convicted and sentenced the accused as noticed herein above. Hence, this appeal. 5. Mr. N.S. Chandel, Mr. Sunil Mohan Goel and Mr. Vivek Sharma, Advocates, have vehemently argued that the prosecution has failed to prove its case against the accused. 6. Mr. Ramesh Thakur, Assistant Advocate General, has supported the judgment of conviction. 7. We have heard the learned counsel for the parties and also gone through the record carefully. 8. PW-3 Pankaj Sharma, Dy.SP, deposed that on 27.6.2009, at 7.40 am, Constable Naresh Kumar No. 336, delivered a Rukka Ext. PW-3/A to him, on the basis of which FIR Ext. PW-3/B was registered. ASI Prem Lal presented the case property before him in the Police Station Anni, which was resealed by him with three seals of ‘H’. He deposited the case property along with sample of seal and NCB form with MHC Anup Kumar at 11.40 am. 9. PW-4 Shiv Ram Thakur deposed that he was posted as in charge APMC Check Post Luhri. On 27.6.2009, he was in his quarter. At 4 am, he came out of his quarter for morning walk. Police officials were sitting in the check post. Thereafter he left for walk towards Rampur. When he came back, one Alto Car was standing near check post. Police were conducting search of the vehicle. On 27.6.2009, he was in his quarter. At 4 am, he came out of his quarter for morning walk. Police officials were sitting in the check post. Thereafter he left for walk towards Rampur. When he came back, one Alto Car was standing near check post. Police were conducting search of the vehicle. ASI called him and thereafter he went to his quarter. When he came back, police told that Charas was present in the vehicle. Charas was weighed in Shivam Hotel. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that on 27.6.2009, at about 4.40 am, when he was at Barrier, police laid Naka. He denied that at 4.45 am, a black Alto car came from Nither side and it was stopped for checking. He also denied that the car driver and other two persons were sitting. He denied that police demanded documents from the driver and that he could not produce the same along with driving licence. He further denied that police made inquiry about the names and addresses of accused. He denied that Puran Chand was having envelope in his lap. On suspicion, police informed the accused that it wanted to conduct search of their persons as well as the vehicle and informed them of their right to be searched before a gazetted officer or a Magistrate and that accused opted to be searched by the police party on the spot. He denied that thereafter, he alongwith police officials gave search to the accused persons. He denied that the consent memo mark A and search memo mark B were prepared on the spot. He denied that thereafter police conducted search and found polythene bag which Puran Chand was holding in his lap and was sitting in the back seat of the Car. He also denied that on opening the polythene envelope, Charas in the shape of balls was recovered. He denied that Charas was weighed with the help of an electronic scale on the spot and that it weighed 2.1 kgs. He denied putting of seal impression ‘T’. He denied that NCB form was filled and thereafter sample of seal was drawn and handed over to him. He also denied that the case property along with vehicle No. HP-62-1216 was taken into possession by the police. He denied putting of seal impression ‘T’. He denied that NCB form was filled and thereafter sample of seal was drawn and handed over to him. He also denied that the case property along with vehicle No. HP-62-1216 was taken into possession by the police. He also denied that ASI Prem Lal scribed the Rukka and sent the same to the Police Station. He admitted his signatures on Mark A, B, C, D, E, F, G, H, J, K, L, M and N. However, he denied the suggestion that he put his signatures on the document on the spot, after going through them and admitting the same to be correct. In his cross-examination by the learned advocate appearing on behalf of Puran Chand, he categorically stated that he has not seen the Charas but had seen the envelope at the time of weighing. Police contacted him over the telephone and asked him that his signatures were required on the documents. Police obtained his signatures at Bus Stand Dalash. He has also admitted that Satpal and Puran Chand were on duty at the Check Post at the time of alleged occurrence. 10. PW-5 HHC Darshan Singh deposed that on 27.6.2009, he along with Prem Lal and other police officials was present at Luhri bridge in connection with routine patrol duty. He had laid a Naka. At 4.45 am, one Alto Car black in colour came from Nither road. It was stopped for checking. Accused Pawan Kumar was driving the vehicle. Besides him accused Sarvan Kumar was sitting in the front seat. Puran Chand was in the back seat of the car. Driver could not produce documents of the vehicle. On suspicion, ASI Prem Lal informed the accused persons that he intended to search them. Search could be before a Magistrate or a Gazetted Officer. However, accused opted to be searched by the Police. The consent memos Ext. PW-5/A, Ext. PW-5/B and Ext. PW-5/C to this effect were prepared. No other witness except Shiv Ram Thakur was available as such he joined Constable Sunder Singh and Shiv Ram Thakur as witnesses. Witnesses gave their personal search to the accused persons. Search of the polythene bag was carried out. Contraband was in the shape of balls of different sizes. It weighed 2.1 kgs. Sealing process was completed at the spot. NCB form was filled in on the spot. Witnesses gave their personal search to the accused persons. Search of the polythene bag was carried out. Contraband was in the shape of balls of different sizes. It weighed 2.1 kgs. Sealing process was completed at the spot. NCB form was filled in on the spot. Case property was taken into possession. ASI Prem Lal scribed the Rukka and sent the same to the Police Station Anni through Constable Naresh Kumar. Case property was produced during the examination-inchief of PW-5 HHC Darshan Singh. In his cross-examination conducted by the learned Advocate appearing on behalf of accused Puran Chand, he admitted that they had put barricade on the spot. At that time Satpal and Puran Chand, employees of APMC were not present at the check post. From 4.10 am to 4.45 am, several vehicles crossed the check post. He also admitted that the residence of the owner of Chauhan Hardware shop is situate on upper storey. He admitted that residences of the adjoining shopkeepers were situate besides the shops but no attempt was made to call the local shopkeepers. Even no attempt was made by the driver of the vehicle to flee away. Shiv Ram Thakur was already present at APMC Check Post before they reached there. He was known to them. 11. PW-6 Sunder Singh also deposed the manner in which accused were apprehended and codal formalities of seizure and sampling were completed at the spot. In his cross-examination, he has admitted that no barricade was put on the spot. They had not called any shopkeeper from their residence to the spot as it was early hour of morning and they did not think it proper to wake up the shopkeepers and call them to the spot. 12. PW-9 ASI Prem Lal also deposed the manner in which accused were apprehended and codal formalities of seizure and sampling were completed at the spot. In his cross-examination, he has admitted that he did not join the local witnesses as they were sleeping at that time. He did not make any efforts to wake up any person. 13. 12. PW-9 ASI Prem Lal also deposed the manner in which accused were apprehended and codal formalities of seizure and sampling were completed at the spot. In his cross-examination, he has admitted that he did not join the local witnesses as they were sleeping at that time. He did not make any efforts to wake up any person. 13. PW-10 HC Anup Kumar deposed that on 27.6.2009, probationer Deputy Superintendent of Police Pankaj Sharma deposited one parcel duly sealed with the seal impression of ‘T’ (6 in number) and resealed with three seals of impression ‘H’ along with NCB form in triplicate, allegedly containing mixture of Charas and sample of seals ‘T’ and ‘H’. He entered the same in the Malkhana register at Sr. No.211. He proved the extract of Malkhana register Ext. PW-10/A. He sent the case property along with NCB form in triplicate, copy of FIR, sample of seals, seizure memo etc. through Roshan Lal to deposit with Forensic Science Laboratory Junga vide RC No. 32/2009. 14. PW-11 Roshan Lal deposed that on 28.6.2009, Anup Kumar handed over one parcel allegedly containing 2.1 kg charas sealed with 6 seal impressions of ‘T’ and resealed with 3 seal impressions of ‘H’ alongwith sample of seals ‘T’ and ‘H’, NCB form and other documents vide RC No. 32/2009 for taking to FSL Junga. On 29.6.2009, he deposited the case property at Forensic Science Laboratory Junga and obtained receipt. 15. PW-12 Naresh Kumar was also member of the patrolling party. He deposed the manner in which accused were apprehended and codal formalities of seizure and sampling were completed at the spot, Rukka Ext. PW-3/A was prepared and handed over to him. He took the same to the Police Station and thereafter FIR Ext. PW-3/B was registered. 16. Case of the prosecution, precisely, is that on 27.6.2009, accused were apprehended. They were apprised of their legal right to be searched before a gazetted officer or a Magistrate. They opted to be searched by the police officer. Bag carried by Puran Chand was searched. It contained Charas and weighed 2.1 kgs. Codal formalities were completed at the spot. Thereafter Rukka was sent through Constable Naresh Kumar to the Police Station. FIR was registered. Contraband was deposited for the purpose of resealing. Thereafter case property was deposited in the Malkhana and it was sent to FSL Junga. 17. Bag carried by Puran Chand was searched. It contained Charas and weighed 2.1 kgs. Codal formalities were completed at the spot. Thereafter Rukka was sent through Constable Naresh Kumar to the Police Station. FIR was registered. Contraband was deposited for the purpose of resealing. Thereafter case property was deposited in the Malkhana and it was sent to FSL Junga. 17. Accused were apprehended on 27.6.2009 at about 4.40 am. Case of the prosecution has not been supported by PW-4 Shiv Ram Thakur, in its entirety. He was declared hostile and cross-examined by the learned Public Prosecutor. He has categorically denied that he was present at the barrier on 27.6.2009 at about 4.45 am. He has denied even that Car from Nither side was stopped by the police for checking. He denied that the accused Puran Chand was holding a polythene envelope in his lap. He has admitted that accused were apprised of their right to be searched before a gazetted officer or a Magistrate. He denied that he along with police officials gave search to the accused persons. He also denied that polythene was checked by the police. He also denied that Charas was recovered from the bag in the shape of balls of different size. He denied that charas was weighed. He admitted his signatures on Marks A to N. However, he has denied that he put his signatures on the spot after going through the contents and admitting the same to be correct. In his crossexamination done by the learned Advocate appearing for accused Puran Chand, he has admitted that Satpal and Puran Chand were on duty at Check Post at the time of alleged occurrence. PW-5 Darshan Singh has denied that Satpal and Puran Chand were present at the check post. He has admitted that from 4.10 to 4.45 am several vehicles crossed the check post and all the vehicles that crossed, were checked. He also admitted that residence of owner of Chauhan Hardware store was on upper storey of the shop and residences of the adjoining shopkeepers were besides their shops. However, no attempt was made to call for local shopkeepers as witness in the case. Shiv Ram Thakur was already known to them. He also admitted that residence of owner of Chauhan Hardware store was on upper storey of the shop and residences of the adjoining shopkeepers were besides their shops. However, no attempt was made to call for local shopkeepers as witness in the case. Shiv Ram Thakur was already known to them. PW-6 Sunder Singh has also admitted that they did not call for shopkeepers from their residences as it was early morning hour and they did not think it proper to wake up shopkeepers and call them to the spot. Accused were apprehended at 4.45 am on 27.6.2009. It can not be said that it was too early to call for witnesses from nearby houses. Rather no attempt has been made by the police to examine independent witnesses though available in the close vicinity. PW-9 Prem Lal has categorically admitted that he did not join local witnesses because at that time people were sleeping. He did not make any efforts to wake up persons from the vicinity to be joined as witnesses in the case. It was not a secluded or isolated place. If attempts had been made sincerely, independent witnesses could be joined to instill confidence in the manner in which accused were apprehended, search and seizure proceedings were completed at the spot. Car was apprehended near Chauhan Hardware store. Residence of owner of the store was situate on upper storey of the building. Residences of adjoining shopkeepers were besides their shops. PW-5 HHC Darshan Singh, as noticed above, has categorically admitted that no attempt was made to call for local shopkeepers as witnesses in the case. PW-4 Shiv Ram Thakur, as per PW-5 HHC Darshan Singh was already known to them. 18. Case property was produced while recording the statement of PW-5 HHC Darshan Singh and it was opened in the Court. It was produced by the Public Prosecutor. Who has brought the case property from Malkhana to the Court has not been examined. Entry in the Malkhana register to the effect that who has taken the property to the Court, is necessary as per Punjab Police Rules, 1934, Para 22.70 of the Punjab Police Rules, 1934, as applicable to the State of H.P. reads as under: “22.70. Register No. XIX- This register shall be maintained in Form 22.70. Entry in the Malkhana register to the effect that who has taken the property to the Court, is necessary as per Punjab Police Rules, 1934, Para 22.70 of the Punjab Police Rules, 1934, as applicable to the State of H.P. reads as under: “22.70. Register No. XIX- This register shall be maintained in Form 22.70. With the exception of articles already included in register No. XVI every article placed in the storeroom shall be entered in this register and the removal of any such article shall be noted in the appropriate column. The register may be destroyed three years after the date of the last entry.” The register is to be maintained in Form 22.70. It reads as under. “FORM NO. 22.70. POLICE STATION_________ ____DISTRICT Register No. XIX.-Store-Room Register (Part-I) Column 1.- Serial No. 2. No. of first information report (if any), from whom taken (if taken from a person), and from what place. 3. Date of deposit and name of depositor. 4. Description of property. 5. Reference to report asking for order regarding disposal of property. 6. How disposed of and date. 7. Signature of recipient (including person by whom dispatched). 8. Remarks. (To be prepared on a quarter sheet of native paper).” 19. It is necessary that as and when case property is taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when case property is redeposited in the Malkhana. Case property in NDPS cases is required to be kept in safe custody from the date of seizure till its production in the Court. It is also necessary that when case property is taken out from Malkhana, DDR is made and also at the time when case property is redeposited in the Malkhana. Thus, it casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case. The prosecution has failed to prove case against the accused under Sections 20 and 29 of the Act. 20. Though accused Pawan Kumar was also charged for offence under Section 181 of the Motor Vehicles Act, 1988, for driving Car No. HP-62-1216 without a valid driving licence, no question was put to him in his examination under Section 313 CrPC. The prosecution has failed to prove case against the accused under Sections 20 and 29 of the Act. 20. Though accused Pawan Kumar was also charged for offence under Section 181 of the Motor Vehicles Act, 1988, for driving Car No. HP-62-1216 without a valid driving licence, no question was put to him in his examination under Section 313 CrPC. The Court below has abruptly come to the conclusion that after going through the case file, it is proved that Pawan Kumar was driving the vehicle without a driving licence. Trial Court should have discussed statements of witnesses while convicting accused under section 181 of the Motor Vehicles Act. PW-5 HHC Darshan Singh and PW-12 Naresh Kumar deposed that the driver could not produce driving licence when asked for. However, no other witness including PW-6 Sunder Singh and PW-9 Prem Lal, who were on the spot deposed whether accused was asked to produce the driving licence or not. Thus, the prosecution has also failed to prove the charges against Pawan Kumar beyond reasonable doubt, qua offence under Section 181 of the Motor Vehicles Act, 1988. 21. In view of the discussion and analysis made hereinabove, the present appeals are allowed. Judgment and Order dated 27.3.2015/30.3.2015 rendered by learned Special Judge, Kinnaur Sessions Division at Rampur Bushahar (HP) in Sessions Trial No. 0100031/2009, is set aside. Accused are acquitted of the offences under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Accused Pawan Kumar is also acquitted of the offence under Section 181 of the Motor Vehicles Act. They are ordered to be released forthwith, if not required by the police in any other case. Fine amount, if any paid by the accused, be refunded to them. Registry is directed to prepare the release warrants of the accused and send the same forthwith to the Superintendent of Jail concerned.