JUDGMENT Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 29.9.2007, rendered by the learned Special Judge, Mandi, H.P. in Sessions Trial No. 9 of 2006, whereby the appellants-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), have been convicted and sentenced to undergo rigorous imprisonment for a period of 15 years and to pay fine of Rs. 1,00,000/- each and in default of payment of fine, they were further ordered to undergo imprisonment for one year each. 2. The case of the prosecution, in a nut shell, is that on 24.7.2005 at about 4:00 PM, information was received that some persons belonging to village Jamachh were engaged in drugs trafficking and were likely to make a deal at the road nearby village Jamachh in Bali Choki area of District Mandi, during the night intervening 24th and 25th July, 2005. The information was reduced into writing by Sh. P.K.Sharma (PW- 4) vide Ext. PF. This information was sent to Sh. O.P.Sharma, (PW-7), who directed him to visit the spot immediately alongwith other officials and also seek assistance of police officials of District Mandi. Thereafter, S.P. Mandi was requested to provide requisite assistance and an application was moved in this behalf to the S.P. Mandi, who deputed Sh. Jagdish Sharma, Addl. S.P and other Constables. The NCB team started from Mandi at 7:30 PM in their vehicle alongwith the police party and reached village Khaneti at 11:00 PM. They tried to associate independent witnesses but no person was available due to late hours. Resultantly, local police officials HC Ashok Kumar and HC Narender Kumar (PW-5) were associated in the raiding party. At about 1:00 AM on 25.7.2005, they noticed three persons coming from upper hill side carrying jute bags on their heads. The NCB team proceeded towards them on the path from village Jamachh. Sh. P.K.Sharma, Intelligence Officer started making inquiries from them and those persons became furious and perplexed and tried to escape. Two of them, namely, Dharam Dass and Abhishek were nabbed and the third one managed to escape. Option was given to both the accused as per the provisions of Section 50 in writing vide Ext. PK and PL. Sh. P.K.Sharma, Intelligence Officer started making inquiries from them and those persons became furious and perplexed and tried to escape. Two of them, namely, Dharam Dass and Abhishek were nabbed and the third one managed to escape. Option was given to both the accused as per the provisions of Section 50 in writing vide Ext. PK and PL. However, the accused refused to take search of the members of the team. Thereafter, Sh. P.K.Sharma, started checking two bags which were containing big poly bags wrapped with cello tape. The poly bags were opened and the same was found containing some substance in the shape of chapattis and sticks giving smell of charas. The accused stated the substance to be charas. The recovered charas was weighed. It weighed 68 kgs. It was taken into possession vide memo Ext. PM. When the proceedings were being undertaken, some villagers started pelting stones at the raiding party. The NCB team alongwith the accused and police officials came back to PS Mandi and reached there at 4:00 AM. Thereafter, the recovered charas was put in four different lots marked as A, B, C and D and two samples of 25 gms. each were taken from the four lots and put in a percel and were sealed with seal NCB 06 which was supplied by Sh. O.P. Sharma. These seals were put at four places. The remaining charas was put in four parcels and the same was also sealed with seal NCB 06 with one on each bag. Sh. O.P.Sharma and Balwinder Kumar also put their signatures on the samples as well as recovered charas and specimen of seal NCB 06 was taken on test memo Ext. PN. Sh. P.K.Sharma, prepared Panchnama Ext. PA, which was signed by both the accused, witnesses O.P.Sharma, Balwinder Kumar and Pawan Kumar Sharma. Sh. P.K.Sharma, issued notice under Section 67 which was served upon the accused vide Ext. PQ and PR and statements of the accused were recorded. The statement of accused Dharam Dass is Ext. PS and that of accused Abhishek is Ext. PT. Both the accused were formally arrested. On 26.7.2005, accused alongwith the case property were produced before the ACJM, Sundernagar, alongwith the documents. The ACJM Sundernagar, signed the relevant documents and the case property. The samples were sent to Delhi for chemical analysis through Balwinder Singh PW-3. The report of the chemical examiner is Ext. PT. Both the accused were formally arrested. On 26.7.2005, accused alongwith the case property were produced before the ACJM, Sundernagar, alongwith the documents. The ACJM Sundernagar, signed the relevant documents and the case property. The samples were sent to Delhi for chemical analysis through Balwinder Singh PW-3. The report of the chemical examiner is Ext. PC and copy of covering letter is Ext. PD. The investigation was completed and the challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 7 witnesses. The accused were also examined under Section 313 Cr. P.C. According to them, they were taken from the house of Molak Ram, Ward Panch where they were attending function. The accused have also examined four defence witnesses. The learned trial Court convicted the accused, as noticed hereinabove. 4. Mr. Anoop Chitkara, Advocate, appearing on behalf of the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ashwani Pathak, Advocate, has supported the judgment of the learned trial Court dated 29.9.2007. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. HC Kesar Singh, PW-1 testified that on 24.7.2005, rapat No. 22 regarding the assistance sought by the NCB team was registered. HC Ashok Kumar, HC Narender Kumar, Const. Dev Raj were deputed to assist the NCB team by the order of Addl. SP, Mandi. The rapat was entered at 7:25 PM. The officials came back at about 4:00 AM with team on 25.7.2005 and entry to this effect was made at rapat No. 39 vide Ext. PA. 7. Sh. D.K. Beri PW-2 has proved the chemical report Ext. PB. 8. Const. Balvinder Singh PW-3 deposed that on 26.7.2005, four sealed samples marked as A1, B1, C1 and D1 alongwith two test memos covering letter were handed over to him by Suptd., O.P. Sharma, NCB Chandigarh to deposit the same in Central Laboratory Delhi. He deposited the same on 27.7.2005. In his cross-examination, he deposed that samples were handed over to him in the Police Station, Sadar Mandi in the evening on 26.7.2005. 9. Sh. P.K.Sharma, Intelligence Officer PW-4 deposed the manner in which the secret information was received by him on 24.7.2005 at 4:00 PM and he was asked by Sh. He deposited the same on 27.7.2005. In his cross-examination, he deposed that samples were handed over to him in the Police Station, Sadar Mandi in the evening on 26.7.2005. 9. Sh. P.K.Sharma, Intelligence Officer PW-4 deposed the manner in which the secret information was received by him on 24.7.2005 at 4:00 PM and he was asked by Sh. O.P. Sharma, to proceed to the spot. They also requested S.P. Mandi, to provide police assistance. Thereafter, S.P. Mandi, deputed the Addl. S.P., Mandi and other police officials alongwith them. They proceeded from Mandi at about 7:30 PM alongwith the local police party in government vehicle and reached near village Khanethi by road side at about 11:00 PM. They tried to join independent witnesses from the local area, but no such witness was available as there was no house nearby and resultantly local police officials HC Ashok Kumar and HC Narender Kumar were associated as witnesses in the raiding party. He also deposed the manner in which the accused were nabbed, sealing and sampling process of the contraband was completed. In his cross-examination, he deposed that he received the secret information at PWD Rest House, Mandi. The information was received telephonically. He was all alone. The information was received at 4:00 PM outside the room of the Rest House. He wrote that information in the room of the Rest House. He further admitted that from Mandi to the alleged spot, in between there are many bazaars and villages. He did not make any efforts in between Mandi and the alleged spot to associate any independent/local person of the locality inspite of having prior information. He further deposed that he made efforts to join independent witness through his team members whose names he did not remember. The case property was handed over to the Superintendent O.P. Sharma on 25.7.2005 at about 12 noon in the Police Station. The case property was never taken back from O.P. Sharma, by him. The statements of the independent witnesses were recorded at 2:00 PM on 25.7.2005 in the Police Station. 10. HC Narender Kumar PW-5 deposed that on 24.7.2005, NCB team headed by O.P. Sharma joined him and stated that some suspects from Jamachh village deals in the business of contraband as such they were to be nabbed. Thereafter, at about 7:30 PM, he alongwith HC Ashok Kumar, Const. Dev Raj and Addl. 10. HC Narender Kumar PW-5 deposed that on 24.7.2005, NCB team headed by O.P. Sharma joined him and stated that some suspects from Jamachh village deals in the business of contraband as such they were to be nabbed. Thereafter, at about 7:30 PM, he alongwith HC Ashok Kumar, Const. Dev Raj and Addl. S.P. Jagdish Sharma, started with NCB team in Mahindra jeep. The members of the NCB were in maruti van. They reached village Khanethi at 11:00 PM. There were no houses nearby the place. As such, he alongwith HC Ashok Kumar was joined as witnesses by P.K. Sharma, Inspector. The written request is Ext. PJ and that of Ashok Kumar is Ext. PH. Thereafter, they started surveillance alongwith the NCB team. At about 1:00 AM, on 25.7.2005, three persons were seen coming from the village path carrying some head load. On seeing them, Inspector P.K. Sharma, stopped them for enquiry. On seeing the police party, accused became nervous and started running from the spot. The charas weighed was found to be 68 kgs. In his cross-examination, he admitted that the entire proceedings were taken in the Police Station. 11. Statement of Sh. Parkash Ram PW-6 is formal in nature. 12. Sh. O.P. Sharma, PW-7 deposed the manner in which the secret information was received by him through Sh. P.K. Sharma. Thereafter, he directed the I.O. to constitute the NCB team and to proceed to the spot. He asked the I.O to coordinate with the local police. He made written request in the name of S.P. Mandi Ext. PG. They joined four local police officials including Jagdish Sharma, Addl. S.P. At about 7:30 PM, they proceeded towards the spot and reached at the spot by 11:00 PM. They tried to associate independent witnesses, but could not join any person as no person was available due to late hours. Therefore, the local police officials HC Ashok Kumar and HC Narender Kumar were associated as witnesses in the raiding party. At 1:00 AM on 25.7.2005, they noticed three persons coming from upper side of the hill, carrying jute bags on their heads. NCB team made inquiries from them. Those persons got perplexed and threw their jute bags on the spot and tried to ran away from the spot. Two of them were nabbed and one of them managed to escape. At 1:00 AM on 25.7.2005, they noticed three persons coming from upper side of the hill, carrying jute bags on their heads. NCB team made inquiries from them. Those persons got perplexed and threw their jute bags on the spot and tried to ran away from the spot. Two of them were nabbed and one of them managed to escape. All the codal formalities were completed on the spot including seizure and sampling of the contraband. The entire case property was handed over to him by the I.O. and remained with his possession and nobody tampered with the same. The case property was handed over to him by the IO on 25.7.2005 at 3:00 PM. He handed over the samples to Balvinder on 26.7.2005. He did not remember the time. He further deposed that ACJM, Sundernagar had done nothing except putting his signatures. The sample was handed over in Police Station Sadar Mandi. He went to Chandigarh after attending Court of ACJM, Sundernagar. 13. Sh. Panna Lal DW-1 testified that he was running a Karyana shop at Khaneti. On 24.7.2005 at about 9/9:30 PM, police vehicle came there and they enquired from him about the location of village Jamachh. He told them that this village is at a distance of 10-11 Km. away from his shop on foot. The police enquired from him the antecedents of Dharam Dass. Then he asked the police as to why this enquiry was being made. The police told him that some enquiries were to be made from Dharam Dass. He told them that at present Dharam Dass was at the house of Ward Panch Molak Ram of Village Khaneti on account of Mundan Sanskar. The police requested him to accompany them so as to meet Dharam Dass. He alongwith the police officials went to the house of Molak Ram. People were taking drinks there and he told Molak Ram that police is enquiring about Dharam Dass. The police told Dharam Dass that some charas had been recovered in four bags by the side of the road in a cave which has been placed by him in the cave. Dharam Dass stated that he has nothing to do with the said charas and the same did not belong to him. Police party tried to forcibly take Dharam Dass by dragging him and public objected to the same. Accused Abhishek was also present there. Dharam Dass stated that he has nothing to do with the said charas and the same did not belong to him. Police party tried to forcibly take Dharam Dass by dragging him and public objected to the same. Accused Abhishek was also present there. Police gave beatings to these persons and also fired shots. He denied the suggestion in his cross-examination that on 25.7.2005, at 1:00 AM, three persons came from upper hill side carrying bags in their hands and police made inquiries from them. He denied that the accused were carrying bags at 1:00 AM on 25.7.2005 and were nabbed by the police. 14. Molak Ram DW-2 testified that he was Ward Panch of Village Khaneti. There were about 24 houses in the said village including 5-6 shops by the side of the road. The shop of Panna Lal is by the side of the road. On 24.7.2005, there was mundane ceremony of his grandson. He had invited co-villagers and other members of his community in the function including the accused persons. At about 10:00 PM, on the said date, Panna Lal came to his house alongwith the police party. Panna Lal asked him whether accused Dharam Dass was there as SP Jagdish Sharma wanted to make some enquiry from him. People were dining and dancing. Police told the accused Dharam Dass that four bags of charas have been recovered in a cave and that he had kept the same there. However, Dharam Dass disclaimed the ownership of those bags. The police insisted that they would take Dharam Dass with them. In the meantime, Abhishek accused came there alongwith other persons and altercation took place on the spot and police fired gun shots. He produced a cartridge which was collected by him from the spot. There was exchange of fists and both Dharam Dass and Abhishek were forcibly taken by the police. On the next day, he alongwith father of the accused Abhishek and other co-villagers came to S.P. Office Mandi and lodged formal report regarding the above incident. They were informed by S.P. Mandi that the accused had been taken by Chandigarh police and as such, he was not in a position to take any action. He denied the suggestion in his cross-examination that neither the police came to his village nor there was any function at his house. They were informed by S.P. Mandi that the accused had been taken by Chandigarh police and as such, he was not in a position to take any action. He denied the suggestion in his cross-examination that neither the police came to his village nor there was any function at his house. He also denied the suggestion that on 24.7.2005, accused Dharam Dass alongwith Abhishek and Tek Chand were coming with charas and were nabbed by the police at Village Khaneti on the road. 15. Dr. Rajvinder Jeet Singh DW-3 deposed that on 28.7.2005, he was posted as Emergency Medical Officer in the Govt. Multi Specialty Hospital. At 1:10 PM on the same day, he examined Dharam Dass and found contusion over left zygomatic area extending to lower eye lid bluish pinkish in colour. The nature of injury was simple and probable duration was within 5 days to 8 days and weapon if used was blunt. The possibility of injury sustained as assault could not be ruled out. He proved MLC Ext. D-6. He also examined Abhishek on the said date at 1:20 PM. No fresh external marks of injury were seen at the time of examination. He proved MLC Ext. D-7. 16. Sh. Hemkant Katyan DW-4 testified that he has seen the news paper of Punjab Kesari dated 26.7.2005. The news item appeared on front page “MANDI MAIN 68 KG CHARAS PAKRI”. The news paper is Ext. D-8. There was a conference in the office of ASP, Mandi and was addressed by ASP Jagdish Sharma and members of the NCB team including Sh. O.P. Sharma. 17. What emerges from the facts enumerated hereinabove is that the secret information was received by Sh. P.K.Sharma PW-4 on 24.7.2005 at about 4:00 PM at Mandi Rest House. He informed his superior officer PW-7 Sh. O.P. Sharma. The local police assistance was provided. They proceeded to the spot at 7:30 PM alongwith the local police party. They reached village Khanethi at about 11:00 PM. The accused were seen coming from the upper hill side. They tried to run away from the spot. Two of them were nabbed. One of them managed to escape. They were searched and contraband was recovered from their possession. It weighed 68 kgs. It was seized and sealed. 18. Sh. They reached village Khanethi at about 11:00 PM. The accused were seen coming from the upper hill side. They tried to run away from the spot. Two of them were nabbed. One of them managed to escape. They were searched and contraband was recovered from their possession. It weighed 68 kgs. It was seized and sealed. 18. Sh. P.K.Sharma, PW-4 has testified that they tried to join independent witnesses from the local area, but no such witness was available as there was no house nearby and resultantly local police officials HC Ashok Kumar and HC Narender Kumar were associated as witnesses in the raiding party. In his cross-examination, he admitted that while going from Mandi to the alleged spot, in between there are many bazaars and villages. He did not make any efforts in between Mandi and the alleged spot to associate any independent/local person of the locality inspite of having prior information. He further admitted that he made efforts to join independent witness through his team members whose names he did not remember. It is not believable that the I.O. would not remember the names of the persons of the team to whom he had asked to find out independent witnesses. Sh. O.P. Sharma, PW-4 had received secret information at 4:00 PM. He had sufficient time to search for the independent witnesses in between when he left from Mandi at 7:30 PM and reached at Khanethi at 11:00 AM. Sh. O.P. Sharma, PW-7 deposed in his examination-in-chief that they tried to associate independent witnesses but could not associate any person as no person was available due to late hours. Therefore, HC Ashok Kumar and HC Narender Sharma, were associated as witnesses in the raiding party. We have already noticed that Sh. P.K.Sharma, PW-4 did not remember the names of the team members to whom he had asked to find out independent witnesses. The prosecution has not explained as to why independent witnesses, though available, between Mandi and Khanethi were not associated at the time of apprehending, search, seizure and sampling proceedings. It is true that the statement of official witnesses can be relied upon if it inspires confidence and are true. However, the prosecution has also to explain as to why the independent witnesses, though available were not associated in this case. 19. The I.O. has not even prepared the spot map. In case, Sh. It is true that the statement of official witnesses can be relied upon if it inspires confidence and are true. However, the prosecution has also to explain as to why the independent witnesses, though available were not associated in this case. 19. The I.O. has not even prepared the spot map. In case, Sh. P.K.Sharma, PW-4 had prepared the spot map, it could show the villages and houses, if any, in the vicinity near the alleged place of occurrence. Mr. Ashwani Pathak, Advocate, has vehemently argued that it was not possible to associate independent witnesses at 1:00 AM. In the instant case, the NCB had the prior information. The information was received by Sh. P.K.Sharma, PW-4. He recorded the same and conveyed it to senior officer PW-7 Sh. O.P. Sharma. Thereafter, they have been given assistance by the local police and left Mandi at 7:30 PM and reached Khanethi at 11:00 PM. They had sufficient time to associate independent witnesses to inspire confidence, the manner in which the accused were nabbed and contraband was recovered. In case it was a chance recovery at 1:00 AM and that too without any prior information, it could be believed that the independent witnesses could not be associated, the place being secluded and isolated. The police had around nine hours at their disposal to associate independent witnesses. In the instant case, the entire proceedings have been completed at the Police Station since according to the prosecution, the villagers had started pelting stones on them. However, no FIR was lodged against the persons who had pelted the stones. The presence of around 15 persons on the spot who were suspected to be throwing stones on the police suggests that there was village nearby and police should have made efforts to join the independent witnesses. In this case, no sincere efforts were made by the police to associate independent witnesses. Sh. P.K.Sharma, PW-4 has admitted that he did not know the names of the members of the team who were asked by him to join independent witnesses. The number of the team was very small. He could have easily remembered the names of the persons of the raiding party, if he had asked them to join the independent witnesses. PW-7 Suptd. P.K.Sharma, PW-4 has admitted that he did not know the names of the members of the team who were asked by him to join independent witnesses. The number of the team was very small. He could have easily remembered the names of the persons of the raiding party, if he had asked them to join the independent witnesses. PW-7 Suptd. O.P. Sharma, has also admitted in his cross-examination that he had not directed his junior officials to join any independent witnesses while on way from Mandi to Khaneti. 20. The prosecution has also not explained how the empty cartridge was recovered from the spot. The injury on the accused Dharam Dass as per the statement of DW-3 Dr. Rajvinder Jeet Singh, has not been explained. There is sufficient force in the contention of Mr. Anoop Chitkara, Advocate that Dharam Dass and Abhishek were dragged from the function of the house of Molak Ram DW-2 and that too at 1:00 AM. Thus, the prosecution version does not inspire confidence, the manner in which the accused were nabbed, recoveries were made from them. 21. The NCB team was also accompanied by ASP Mandi Sh. Jagdish Sharma but surprisingly, he has not been examined by the prosecution, though a material witness. The material witnesses at times are not produced by the prosecution, only for the reason that they may not support the case of the prosecution. He was the senior most officer in the team and his testimony would have definitely given credence to the prosecution case. 22. Sh. O.P. Sharma, PW-4 has stated in examination-in-chief that when the proceedings were undertaken, the villagers started pelting stones on them. Therefore, the team came to the Police station and reached there at 4:00 AM. The accused were apprehended at 1:00 AM by the NCB team. However, the statement of official witnesses was recorded on 25.7.2005 by Sh. P.K.Sharma, PW-4 at 2:00 PM. The prosecution has not explained why there was delay of 12 hours in recording the statement of the official witnesses. The statements should have been recorded immediately since they were in the NCB team and came back with them to the PS Mandi at 4:00 AM. The statements are to be recorded promptly and if there is delay, it has to be explained. 23. Sh. The statements should have been recorded immediately since they were in the NCB team and came back with them to the PS Mandi at 4:00 AM. The statements are to be recorded promptly and if there is delay, it has to be explained. 23. Sh. P.K.Sharma, PW-4 in his cross-examination has admitted that local villagers had assembled near the spot but they were not seen in the darkness. He was also carrying pistol. He did not know whether other police officials were carrying such like weapon or not and accused could not be nabbed by the police. The police team comprised of senior police officer ASP, Mandi Sh. Jagdish Sharma alongwith the NCB team. They would have definitely nabbed the persons who were pelting stones on them. 24. Const. Balvinder Singh PW-3 stated that the samples were handed over to him in the Police Station at Sadar Mandi in the evening of 26.7.2005. Sh. P.K.Sharma, PW-4 stated in his cross-examination that the case property was handed over to Superintendent O.P. Sharma on 25.7.2005 at 12 noon in the Police Station. However, Suptd. O.P.Sharma, PW-7 deposed that he received the case property from the I.O on 25.7.2005 at 3:00 PM. Thereafter, he handed over the samples to Balvinder on 26.7.2005. He did not remember the time. It is not believable that Suptd. O.P. Sharma, PW-7 being a responsible officer and member of the NCB team, could not remember the time when the samples were handed over to Balvinder Singh on 26.7.2005. There is contradiction in the statements of Sh. P.K.Sharma, PW-4 and Sh. O.P. Sharma, PW-7 about the handing over the case property. 25. The learned trial court has discarded the statements of DW-1 Panna Lal and DW-2 Molak Ram. According to DW-2 Molak Ram, on 24.7.2005, there was mundan ceremony of his grandson. He had invited co-villagers and other members of his community in the function including the accused persons. At about 10:00 PM, on the said date, Panna Lal came to his house alongwith the police party. They enquired about the accused. Accused did not claim the ownership of the bags. DW-1 Panna Lal deposed that on 24.7.2005 at about 9/9:30 PM, police vehicle came there and they enquired from him about the location of village Jamachh. He told them that this village is at a distance of 10-11 Km. away from his shop on foot. They enquired about the accused. Accused did not claim the ownership of the bags. DW-1 Panna Lal deposed that on 24.7.2005 at about 9/9:30 PM, police vehicle came there and they enquired from him about the location of village Jamachh. He told them that this village is at a distance of 10-11 Km. away from his shop on foot. The police enquired from him the antecedents of Dharam Dass. Then he asked the police as to why this enquiry was being made. The police told him that some enquiries were to be made from Dharam Dass. He alongwith the police officials went to the house of Molak Ram. People were taking drinks there. It has also come in the statement of DW-3 Dr. Rajvinder Jeet Singh that Dharam Dass accused has received simple injuries as per MLC Ext. D-6. DW-2 Molak Ram has also produced cartridge Ext. D-1. The statement of defence witnesses are to be treated at par with the statement of the official witnesses. The statements of DW-1 Panna Lal and DW-2 Molak Ram have been discarded by the learned trial Court only by making observation that the NCB team was not having any enmity with Dharam Dass. Thus, the possibility of the accused being at the house of Molak Ram on 24.7.2005 can be ruled out in view of the statement of DW-1 Panna Lal and DW-2 Molak Ram. Moreover, when no independent witnesses were associated by the prosecution to prove their presence on the spot though sufficient time was available to do the same. We have already noticed that the police party was also attacked and they did not complete the proceedings on the spot. DW-1 Panna Lal and DW-2 Molak Ram have also stated that altercation had taken place at the house of Molak Ram. According to DW-1 Panna Lal and DW-2 Molak Ram, accused Dharam Dass and Abhishek were taken forcibly by the police. The pelting of stones at the police by the villagers probablises the defence of the accused that they were not on the spot and were in the house of Molak Ram. The version of the prosecution is that accused were seen coming from the hill side and they were nabbed at 1:00 AM. If they were nabbed at 1:00 AM, there was no possibility of the presence of villagers in sufficient number near the spot. 26. The version of the prosecution is that accused were seen coming from the hill side and they were nabbed at 1:00 AM. If they were nabbed at 1:00 AM, there was no possibility of the presence of villagers in sufficient number near the spot. 26. In the case of Dudh Nath Pandey vs. State of U.P. AIR 1981 SC 911 , their lordships of the Hon’ble Supreme Court have held that defence witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses. It has been held as follows: “19. Counsel for the appellant pressed hard upon us that the defence evidence establishes the alibi of the appellant. We think not. The evidence led by the appellant to show that, at the relevant time, he was on duty at his usual place of work at Naini has a certain amount of plausibility but that is about all. The High Court and the Sessions Court have pointed out many a reason why that evidence cannot be accepted as true. The appellant's colleagues at the Indian Telephone Industries made a brave bid to save his life by giving evidence suggesting that he was at his desk at or about the time when the murder took place and further, that he was arrested from within the factory. We do not want to attribute motives to them merely because they were examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses. Granting that D. Ws. 1 to 5 are right, their evidence, particularly in the light of the evidence of the two Court witnesses, is insufficient to prove that the appellant could not have been present near the Hathi Park at about 9-00 A.M. when the murder of Pappoo was committed. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. The evidence of the defence witnesses, accepting it at its face value, is consistent with the appellant's presence at the Naini factory at 8-30 A.M. and at the scene of offence at 9.00 A.M. So short is the distance between the two points. The workers punch their cards when they enter the factory but when they leave the factory, they do not have to punch the time of their exit. The appellant, in all probability, went to the factory at the appointed hour, left it immediately and went in search of his prey. He knew when, precisely, Pappoo would return after dropping Ranjana at the school. The appellant appears to have attempted to go back to his work but that involved the risk of the time of his re-entry being punched again. That is how he was arrested at about 2- 30 P.M. while he was loitering near the pan-shop in front of the factory. There is no truth in the claim that he was arrested from inside the factory.” 27. In the case of Munshi Prasad and Others vs. State of Bihar, (2002) 1 SCC 351 , their lordships of the Hon’ble Supreme Court have held that defence witnesses are to be treated at par with prosecution witnesses. It has been held as follows: “3. In the case of Munshi Prasad and Others vs. State of Bihar, (2002) 1 SCC 351 , their lordships of the Hon’ble Supreme Court have held that defence witnesses are to be treated at par with prosecution witnesses. It has been held as follows: “3. Without attributing any motive and taking the evidence on its face value, therefore, it appears that the place of occurrence was at 400 - 500 yards from the place of panchayat and it is on this piece of evidence, the learned Advocate for the State heavily relied upon and contended that the distance was far too short so as lo be an impossibility for the accused lo be at the place of occurrence - we cannot but lend concurrence to such a submission : A distance of 400- 500 yards cannot possibly be said to be "presence elsewhere'- it is not an impossibility to be at the place of occurrence and also at the panchayat meet, the distance being as noticed above : The evidence on record itself negates the plea and we are thus unable lo record our concurrence as regards acceptance of the plea of alibi as raised in the appeal. Before drawing the curtain on this score however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence - witnesses arc entitled to equal respect and treatment as that of the prosecution The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of" the prosecution- a lapse on the part of the defence witness cannot be differentiated and be treated differently than that of the prosecutors' witnesses.” 28. In the case of Sanjiv Kumar vs. State of Punjab, (2009) 16 SCC 487 , their lordships of the Hon’ble Supreme Court have held that while prosecution has to prove its case beyond reasonable doubt, the defence of accused has to be tested on the touchstone of probability. The burden of proof lies on prosecution in all criminal trials, though onus may shift to accused in given circumstances, and if so provided by law. Therefore, evidence has to be appreciated to find out whether the defence set up by accused is probable and true. The burden of proof lies on prosecution in all criminal trials, though onus may shift to accused in given circumstances, and if so provided by law. Therefore, evidence has to be appreciated to find out whether the defence set up by accused is probable and true. Their lordships have further held that defence witnesses have been observed to be often untruthful but that is not so say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. Right given to the accused to explain incriminating circumstances appearing against him, serves a purpose, which cannot be ignored outrightly. It was further held that in every case the Court has to see whether the defence set up by the accused is probable, having regard to totality of facts and circumstances of the case. If the defence appears to be probable, the Court may accept such defence. It has been held as follows: “20. We cannot lose sight of the principle that while the prosecution has to prove its case beyond reasonable doubt, the defence of the accused has to be tested on the touchstone of probability. The burden of proof lies on the prosecution in all criminal trials, though the onus may shift to the accused in given circumstances, and if so provided by law. Therefore, the evidence has to be appreciated to find out whether the defence set up by the appellant is probable and true. 23. It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose, and cannot be ignored outright. In every case the court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard.” 29. The prosecution has failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard.” 29. The prosecution has failed to prove that the contraband was recovered from the exclusive and conscious possession of the accused. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt for the commission of offence under Sections 20 & 23 of the N.D & P.S., Act. 30. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 29.9.2007, rendered by the learned Special Judge, Mandi, H.P. in Sessions trial No. 9 of 2006, is set aside. Accused are acquitted of the charges framed against them by giving them benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to them. Since the accused are in jail, they be released forthwith, if not required in any other case. 31. The Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.