JUDGMENT : Per Rajiv Sharma, Judge: This appeal has been instituted against Judgment dated 11.2.2009 rendered by learned Special Judge, Mandi, HP, in Sessions Trial No. 34 of 2008, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as 'Act' for convenience sake) has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 10.3.2008 at about 9.45 pm, HC Kishan Chand alongwith Constable Padam Singh, LHC Balbir Singh, HHC Padam Singh, HHC Prem Pal and Constable Hitender Kumar was on patrolling and detection of excise and narcotics near Bhiuli bridge. Police party noticed accused with a Pithu on his back coming on the road. Accused tried to turn back. He was apprehended. Accused told them that the Pithu contained charas. Constable Hitender Kumar was sent to call for independent witnesses from the houses Khad side. HC Kishan Chand after offering his search and of other police officials, carried out the search of the bag of the accused in presence of LHC Padam Singh and LHC Balbir Singh. Bag contained four poly packs bearing ‘East Park’ label. Packs contained Charas in the shape of sticks and balls. Charas of poly packs was mixed and it weighed 4.00 kgs. From the mixture, two samples of 25 gms each were taken and sealed with seal impression ‘D’. Bulk of Charas was also sealed in a parcel sealed with seal ‘D’ and specimen of seal impression ‘D; was drawn and NCB forms in triplicate were updated and seal was handed over to HHC Padam Singh. Charas and samples were taken into possession vide Ext. PW-1/E. Rukka, Ext. PW- 12/B was prepared and sent to the Police Station. FIR Ext. PW- 10/ was registered. Case property was handed over to SHO Hari Ram and he resealed the same with seal ‘H’ and deposited with MHC Police Station Sadar vide Ext. PW-12/A. Report of FSL Junga is Ext. PW-11/A. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as 12 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. He examined two witnesses in his defence. Learned trial Court acquitted the accused. Hence, this appeal. 4. 3. Prosecution has examined as many as 12 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. He examined two witnesses in his defence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. M.A. Khan, Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. We have heard the learned counsel for the appellant and also gone through the record carefully. 6. PW-1 HHC Padam Singh deposed that they noticed a person coming from Sauli Khad towards Mandi side on foot having a bag on his left shoulder. On seeing the police party, said person tried to run away. Police party apprehended the accused. No person was available at that time on the spot and as such IO Kishan Chand deputed Constable Hitender Kumar towards Sauli Khad in search of independent witnesses. They alongwith accused came towards Bhiuli bridge. Hitender Kumar came back and reported that all the shops were closed. He could not find any independent witnesses. IO asked for the consent of the accused whether he wanted the personal search and search of his bag before a Magistrate or a Gazetted Officer. Consent memo is Ext. PW-1/A. Accused consented in writing to be searched by the police vide consent memo Ext. PW-1/A. Police gave their personal search to the accused. Bag of accused was searched. It contained charas in the shape of sticks and balls. It weighed 4.00 kgs. Out of recovered charas, two samples of 25 grams each were separated and sealed with sead ‘D’ (7 in number). Remaining charas was sealed in separate parcel with the same seal impression at 7 places. Specimen seal impression was taken separately. Seal, after use was handed over to him. He did not bring the same since it was lost. IO filled up NCB form in triplicate. Parcel and bag were taken into possession vide Ext. PW-1/E. Samples were produced during the examination-in-chief of this witness. In his cross-examination, he has admitted that on the spot there are so many shops, petrol pump, historical Gurdwara etc. Area is within Municipal Corporation limits Mandi. There remains hustle and bustle from Paddal to Bhiuli bridge and Sauli river and Bhiuli colony throughout day and night. PW-1/E. Samples were produced during the examination-in-chief of this witness. In his cross-examination, he has admitted that on the spot there are so many shops, petrol pump, historical Gurdwara etc. Area is within Municipal Corporation limits Mandi. There remains hustle and bustle from Paddal to Bhiuli bridge and Sauli river and Bhiuli colony throughout day and night. He has admitted that after crossing the bridge there are government staff quarters, Housing Board colony, private residences, Bhima Kali temple, Telephone exchange and so many shops and thousands of people are living there. 7. PW-2 Constable Hitender Kumar also deposed the manner in which accused was apprehended and search, sealing and seizure proceedings were completed at the spot. He deposed that the IO asked him to bring independent witnesses from Sauli Khad side and accordingly, he started traveling towards Sauli Khad whereas rest of the police party alongwith accused started towards Bhiuli bridge. He searched for independent witnesses but none was found. Shops were closed. He came back and informed the IO about the non-availability of independent witnesses. In his cross-examination, he has admitted that they stopped at so many places i.e. ITI Chowk, Bus Stand, Vegetable Market, Gurdwara and ITI hostel. He admitted that there are so many shops and houses on both the sides of the road from CIA staff office to Bhiuli bridge. He admitted that due to there being National Highway, there is frequency of vehicles from Mandi to Manali and towards Pathankot round the clock. He also admitted that on right side of road near Bhiuli bridge there is ITI hostel, Gurdwara and locality and so many people are residing there. It is stated by him that by the side of Bhiulu bridge towards left side there is workshop of HRTC and by its side there is building of Surender Kumar abutting National Highway. In his cross-examination, he has admitted that in order to bring independent witnesses from the houses and shops from Sauli river side, he simply travelled 100 metres but nobody met him and he did not go to bring independent witnesses from Bhiuli or ITI hostel side which are adjacent to the lace of occurrence because IO specifically asked him to arrange the same from Sauli river side where he had to travel log distance. There was no population. He came back to the spot in 10 minutes. There was no population. He came back to the spot in 10 minutes. He also carried Rukka to the Police Station. He also deposed that memo Ext. PW-1/A was not prepared in his presence. Ext. PW-1/B also was not prepared in his presence. 8. PW-3 Nand Lal deposed that on 11.3.2008, Hari Ram at 2.15 am, deposited two sample parcels and one bulk parcel sealed with seal impression ‘D’ at 7 places and four seals of ‘H’ and sample parcels sealed with seal impression ‘D’ and ‘H’ were marked as A1 and A2 alongwith NCB form in triplicate, seizure memo and specimen seal impressions of ‘D’ and ‘H’. He entered the case property in Malkhana Register at Serial No. 860 and kept the same in safe custody. One sample parcel marked A1 alongwith specimen seal impression and NCB form and necessary documents were handed over to HHC Dharampal vide RC No. 72/08 for depositing with FSL Junga for chemical analysis. 9. PW-4 Dharam Pal deposed that on 13.3.2008, MHC Nand Lal handed over to him sample parcel of the case sealed with seal ‘D’ and ‘H’ at four places with NCB form, specimen seal impression and other necessary documents vide RC No. 72/08 for delivering at FSL Junga. He handed over the receipt to MHC. 10. PW-10 SI Hari Ram was posted as SHO Police Station Sadar. On 10.3.2008 at 11.45 pm Rukka was brought by Hitender Kumar on the basis of which he got registered FIR Ext. PW-10/A. On 11.3.2008, at 1.45 pm, HC Kishan Chand produced the case property which was sealed with seal impression ‘D’ alongwith NCB form and specimen seal impression. He resealed two sample parcels and bulk parcel with seal impression ‘H’ and filled up necessary columns of NCB form and took specimen seal impression on piece of cloth. After resealing the case property, he handed over the same to MHC Nand Lal for keeping in safe custody in Malkhana. Resealing certificate is Ext. PW-10/B. 11. PW-12 Kishan Chand is the Investigating Officer in the present case. He deposed the manner in which accused was apprehended and search, sealing and seizure proceedings were completed at the spot. He has sent Hitender Kumar towards Sauli Khad for bringing independent witnesses since the place where accused was apprehended was isolated. After about 10 minutes, Hitender Kumar came back. He could not find any independent witness. He deposed the manner in which accused was apprehended and search, sealing and seizure proceedings were completed at the spot. He has sent Hitender Kumar towards Sauli Khad for bringing independent witnesses since the place where accused was apprehended was isolated. After about 10 minutes, Hitender Kumar came back. He could not find any independent witness. In his cross-examination, he has admitted that after proceeding from SIU office they patrolled Paddal ground, vegetable market, Gurdwara and ITI hostel. He has admitted that from Paddal police station upto Bhiuli bridge, tehre are shops and residential houses on both sides of the road. He admitetd that at Bhiuli bridge, there is crossing of the roads towards Jogindernagar and Manali and in the middle of crossing at Bhiuli bridge there is a big street light under which he conducted search of accused and other proceedings. He admitted that the place of occurrence is thickly populated area. He also admitted that there was frequency of vehicles throughout at the point of crossing. He also admitted that he has not sent Hitender Kumar to bring witnesses from nearest places Bhiuli and ITI Hostel side. 12. DW-1 Sanjay Sharma deposed that he was running a travel agency. Accused came to him at Patli Kuhal on 10.3.2008 to book one seat in Bus No. UP-22-T-0689 from Mohal to Delhi. He was supposed to board the bus at Mohal at 6.00 pm on 10.3.2008. He has produced the original booking book. 13. DW-2 Raghubir Singh was driver of Bus No. UP-22- T-0689. He was driving the bus on 10.3.2008 from Manali to Delhi. It left Manali at 4.00 pm. There was booking of seat No. 3 from Mohal to Delhi. At about 6.15 pm, accused boarded the bus at Mohal and occupied seat No. 3 from Mohal. He was moderately drunk and had an altercation with the conductor. When bus reached Bhiuli Forest Check post, at 9.30 pm, bus was stopped on seeing the police officials as the conductor requested the bus to stop where police party was present. When bus stopped, conductor asked the police to get down the accused from the bus as he was creating nuisance in the bus. He also requested accused to alight from the bus. Police took accused with them. Bhiuli bridge at Mandi is about ½ kms from Bindravani forest check post where accused alighted from the bus. 14. When bus stopped, conductor asked the police to get down the accused from the bus as he was creating nuisance in the bus. He also requested accused to alight from the bus. Police took accused with them. Bhiuli bridge at Mandi is about ½ kms from Bindravani forest check post where accused alighted from the bus. 14. Case of the prosecution, precisely, is that accused was apprehended on 10.3.2008 at 9.45 pm. He was carying a bag. He disclosed that he was carrying charas. IO sent PW-2 Hitender Kumar to search for independent witnesses. He came back in 10 minutes. No independent witnesses were available. Search and seizure proceedings were completed at the spot. NCB form was filled in. Rukka was sent to Police Station on the basis of which FIR was registered. Resealing was completed by SHO. He deposited the case property with MHC. 15. PW-1 Padam Singh has stated, as noticed herein above, in his cross-examination that there remains hustle and bustle from Paddal to Bhiuli bridge and Sauli river and Bhiuli colony throughout day and night. He has admitted that after crossing the bridge there are government staff quarters, housing board colony, private residences, Bhima Kali temple, Telephone exchange and so many shops and thousands of people are living there. Similarly, PW-2 Hitender Kumar has also admitted that after crossing Bhiuli bridge there are government staff quarters, housing board colony, private residences, Bhima Kali temple, Telephone exchange and so many shops. He admitted that due to National Highway, there is vehicular traffic at Bhiuli bridge. He also admitted that near the spot, there is ITI hostel, Gurdwara and so many people are residing there. He also admitted that there is workshop of HRTC. He also admitted that at the spot there is building of one Surender Kumar. He did not try to bring witnesses from houses. He has gone 100 metres in search of independent witnesses. He has not tried to arrange for independent witnesses from ITI hostel which was adjacent to the place of occurrence. He was rather sent to opposite area which was not populated at all. He came back after 10 minutes. PW-12 Kishan Chand (IO) has also admitted about shops and residential houses and HRTC workshop. He also admitted that there was frequency of vehicles throughout at the point of crossing. He was rather sent to opposite area which was not populated at all. He came back after 10 minutes. PW-12 Kishan Chand (IO) has also admitted about shops and residential houses and HRTC workshop. He also admitted that there was frequency of vehicles throughout at the point of crossing. However, fact of the matter is that despite the area where accused was apprehended had vehicular traffic but no steps have been taken to associate independent witnesses. PW-12 Kishan Chand (IO) should have asked PW-2 Hitender Kumar to go towards Bhiuli side which was very thickly populated or there were shops and houses, HRTC workshop, Petrol Pump, Gurdwara and Kali Temple near the place where accused was apprehended. 16. We have not understood why IO has sent PW-2 Hitender Kumar to an area which was not thickly populated instead of sending towards an area which was thickly populated to call independent witnesses. Case of the prosecution is that accused was given option to be searched before a gazetted officer or a Magistrate. He opted to be searched by the police. Consent memo is Ext. PW-1/A. According to the prosecution case, PW-2 Hitender Kumar was present on the spot and he was the person who has taken Rukka to Police Station. However, in his cross-examination he has denied that Ext. PW-1/A was prepared in his presence. He has also admitted that Ext. PW- 1/E was also not prepared in his presence. Thus, the presence of PW-2 Hitender Kumar at the spot is doubtful. Rukka was prepared at 11.30 pm by IO PW-12 Kishan Chand but was sent at 12.30 pm. According to HHC Padam Singh, samples were not taken homogenously. Few sticks were taken. According to PW- 12 Kishan Chand from all the four packets, samples were drawn. There is variance in the statements of PW-1 Padam Singh, PW-2 Hitender Kumar and PW-12 Kishan Chand whether sample was prepared homogenously or not.. Entire contraband was required to be mixed homogenously for preparing samples to be sent for chemical examination to FSL. 17. The prosecution has failed to prove its case against the accused. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court. 18. There is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.