JUDGMENT : Vivek Singh Thakur, J. 1. The respondents have been acquitted by the learned Additional Sessions Judge, Fast Track Court Kullu, Himachal Pradesh vide judgment dated 12.01.2011, passed in Sessions Trial No. 16/ 2010 in case FIR No. 157/09 at Police Station, Banjar District Kullu H.P. who were charged sheeted under Section of 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 having found in possession 7 kilo 200 gms. charas. 2. Being aggrieved by acquittal of the respondents, the State has preferred present appeal. 3. We have heard Mr. P.M. Negi, Deputy Advocate General, for appellant-State as also Mr. Ajay Kumar Dhiman Advocate, learned counsel for respondent-accused No. 1. 4. As per prosecution story during patrolling PW-2 ASI Chint Ram, PW-1 LHC Hans Raj, Constable Sohan Lal and HC Narian Chand were present at Paggal Nallah on 10.11.2009 at 8.30 PM. A vehicle ‘TAVERA’ car bearing registration No. HR-45A-0409 was intercepted by police party on suspicion. Vehicle was being driven by respondent No.3 and respondent No.1 was sitting on front seat alongwith driver. After giving personal search, PW-2 ASI Chint Ram had conducted search of vehicle. 7 kilo 200 gms. charas was recovered under mat below front seat occupied by respondent No.1. After weighing contraband, the same was seized vide seizure memo Ex. PW-1/B by sealing with seal ‘H’ and NCB-1 form Ex.PW-2/A was filled in triplicate and seal impression was affixed on it. Sample of seal impression Ex. PW-1/C was taken on cloth and seal was handed over to PW-1 LHC Hans Raj. Thereafter Rukka Ex.PW-2/C was sent to Police Station, Banjar through PW-1 LHC Hans Raj. PW-9 SI Lal Singh had made endorsement on Rukka in red circle after registering FIR Ex PW-9/A. 5. PW-1 LHC Hans Raj did not return to spot because of odd hours and remained in Police Station waiting for PW-2 ASI Chint Ram. 6. Respondents-accused No. 1 and 3 were arrested after serving arrest memo Ex.PW-2/D and Ex. PW-2/E. Thereafter, their personal search was conducted and memo Ex. PW-2/F and Ex.PW-2/G were prepared. 7. On reaching at Police Station, PW-2 ASI Chint Ram had handed over case property to PW-9 SI Lal Singh who had resealed it with seal ‘T’ and seal impression of seal ‘T’ was taken on cloth. After filling up column Nos. PW-2/E. Thereafter, their personal search was conducted and memo Ex. PW-2/F and Ex.PW-2/G were prepared. 7. On reaching at Police Station, PW-2 ASI Chint Ram had handed over case property to PW-9 SI Lal Singh who had resealed it with seal ‘T’ and seal impression of seal ‘T’ was taken on cloth. After filling up column Nos. from 9 to 11 of NCB-I form and fixing impression of seal on it PW-9 Lal Singh had deposited case property in Malkhana through PW-5 MHC Ramesh Chand vide entry No. 156 of Malkhana Register Ex. PW-5/A. 8. Special Report Ex.PW-2/H was handed over by PW-2 ASI Chint Ram to Ahmad Sayad, Deputy Superintendent of Police HQ who had handed over the same to his Reader PW-7 Harbans Kumar on 11.11.2009 at 6.00 PM. Special report Ex. PW-2/A was entered at Sl. No. 82 of his Register. Copy of entry in Register is PW-7/A. During investigation, respondents No. 1 & 3 had disclosed that charas was sold to them by Thakur Dass respondent No.2. Under instructions of PW-2 ASI Chint Ram, PW-8 HC Yashpal had conducted inquiry in this regard and had recorded statements of PW-4 ASI Raj Kumar, Khushi Ram and Jhave Ram and had handed over the same to PW-2 ASI Chint Ram. 9. Respondent No.2 Thakur Dass had come to Police Station on telephonic direction on 11.11.2009 at 8.30 PM who was identified by respondents No. 1 & 3 Ram Niwas and Ashwani as a seller of charas. Respondents No.2 Thakur Dass was arrested vide arrest memo Ex. PW-2/J. Call details of Thakur Dass, Ram Niwas and Ashwani Kumar as also of one Sonu Kumar were obtained and it was revealed that all of them were in contact with each other. Search of house and shop of Thakur Dass was also conducted but no incriminating substance was found from the shop and house. Weights and Scale were brought from the shop of Respondent No. 2 Thakur Dass vide memo Ex. PW-2/C. 10. PW-5 HC Ramesh Chand had sent contraband for chemical analysis to State FSL Junga vides R.C. No. 139/2009 Ex.PW-5/B, dated 12.11.2009 through PW-11 HHC Noordeen who had delivered the same to State FSL Junga against receipt dated 13.11.2009 and on his return had deposited RC having receipt in red circle on the same with PW-5 HC Ramesh Chand. As per chemical analysis report Ex. As per chemical analysis report Ex. PW-2/O the contraband was found to be charas and after receiving said report, challan was prepared by PW-10 Inspector Prem Dass and put in the Court. 11. PW-3 Constable Uttam Chand has recorded Daily Diary Report dated 10.11.2009 Ex. PW-3/A regarding departure of police party for patrolling. PW-4 ASI Raj Kumar has deposed that during his patrolling duty in Village Saran near Siund Project he had seen white colour TEVERA car bearing registration No. HR-45A-0409 on 10.11.2009 going from Siund towards Village Saran. 12. PW-12 Devender Verma Nodel Officer, Bharti Airtel has produced printout of call detail of phone number 98168-12846 consisting of 72 sheets Ex. PW-12/A. He has also produced similar prints Ex PW-12/B to Ex PW-12/E in the court. After conclusion of trial, respondents have been acquitted by learned trial court. 13. Prosecution examined 12 witnesses. Thereafter statements of respondents-accused under Section 313 of the Code of Criminal Procedure were recorded. No defence witness has been examined on behalf of the respondents-accused. 14. The patrolling party was consisting of PW-1 LHC Hans Raj, PW-2 ASI Chint Ram, HC Narain and Constable Sohan Lal. PW-1 LHC Hans Raj was sent for independent witness to Village Spangani by PW-2 ASI Chint Ram. However no independent witness was available. Out of four members of patrolling party, State has choosen to examine only two witnesses PW-1 and PW-2. Constable Sohan Lal was given up by Public Prosecutor being repetitive in nature. Name of HC Narain Chand did not find mention amongst examined witnesses. PW-2 was Investigating Officer and PW-1 had left the spot with Rukka after seizure of contraband. In these circumstances after leaving spot by PW-1 LHC Hans Raj, Constable Sohan Lal and HC Narian Chand were witnesses to the remaining proceedings conducted by the police party but they have not been examined. In absence of independent witnesses, both of these witnesses or atleast one of them was essential to be examined to corroborate the version of Investigating Officer especially proceeding conducted after leaving the spot by PW-1 HC Hans Raj. 15. No doubt conviction can be based upon evidence of official witnesses, however, in absence of independent witnesses, evidence of official witnesses is to be scrutinized with care and caution and there is necessity of strict corroboration in such an eventuality. 16. 15. No doubt conviction can be based upon evidence of official witnesses, however, in absence of independent witnesses, evidence of official witnesses is to be scrutinized with care and caution and there is necessity of strict corroboration in such an eventuality. 16. Allegations against respondent No. 2 is that he has sold contraband to respondents No. 1 & 3. Basis of allegation is disclosure made by respondents No.1 & 3 to PW-2 ASI Chint Ram during investigation after their arrest. As per prosecution case, PW-2 ASI Chint Ram instructed PW-8 HC Yashpal to make further inquiry in this regard and PW-8 Yash Pal had recorded statements of PW 4 Raj Kumar, PW-6 Jhave Ram and Khushi Ram for establishing allegations against respondent No. 2 Thakur Dass. PW-8 HC Yash Pal has stated that he was asked by PW-2 ASI Chint Ram to inquire about vehicle bearing Registration No. HR-45A-0409. His silence about instructions given by PW-2 Chint Ram to inquire about role of respondent No.2 Thakur Dass creates doubts on prosecution case. PW-4 ASI Raj Kumar has deposed only to the effect that he had seen white colour TAVERA Car bearing registration No. HR-45A- 0409 going from Siund towards village Saran. PW-6 Jhave Ram has stated that he was called to Police Post, Sainj and told that his co-villager respondent No. 2 Thakur Dass was arrested by police and police had obtained signatures of this witness on some documents for completing formalities and nothing had happened in his presence. The said witness was declared hostile and was subjected to cross-examination by learned Public Prosecutor however nothing incriminatory could be elucidated despite lengthy cross-examination. 17. The house and shop of respondent No. 2 were also searched. During search only weights and scales were taken into possession from shop of respondent No. 2 Thakur Dass vide memo Ex. PW-2/L. Respondent No. 2 Thakur Dass is running Karyana shop at Raila. It is but natural to have weights and scale in his shop. This recovery is not linking Thakur Dass with contraband in any manner. 18. The prosecution has also examined PW-12 Nodal Officer of Bharti Airtel Limited to prove call details of telephone No. 98168-12846. However, there is no evidence placed on record regarding ownership or even possession of Mobile telephones/mobiles linking the same with respondents. This recovery is not linking Thakur Dass with contraband in any manner. 18. The prosecution has also examined PW-12 Nodal Officer of Bharti Airtel Limited to prove call details of telephone No. 98168-12846. However, there is no evidence placed on record regarding ownership or even possession of Mobile telephones/mobiles linking the same with respondents. Therefore, in absence of any evidence linking respondents with mobile phones/Sims referred in prosecution case, call details of mobile phone/Sims cannot be considered as evidence against respondent-accused. 19. Khushi Ram and Jagat Ram were given up by Public Prosecutor on the ground that they were won over by accused. It is a mystery that on what basis learned Public Prosecutor has arrived at conclusion that these witnesses had been won over by accused person as they had not been examined prior to disclosure by learned Public Prosecutor. In any case, prosecution had recourse to examine such witnesses and in case of their resiling from earlier statements, get them declared hostile and cross-examine them to elucidate truth from these witnesses. It is only on the basis of examination of a witness, it can be exposed that witness has been won over by accused. 20. As noticed Constable Sohan Lal was given up being repetitive despite the fact that he was only cited witness who was present on spot with PW-2 Chint Ram after leaving spot by PW-1. Another witness HC Narian Chand has also not been examined who was also a material witness of spot. Therefore, an adverse inference is to be drawn against prosecution for withholding or non-examination of material witnesses. 21. In examination-in-Chief PW-2 ASI Chint Ram stated that after giving his personal search to respondents-accused, he had searched vehicle. But he is silent about personal search of respondents No. 1 & 3. However, in his cross-examination, he has admitted that in memo Ex. PW- 1/B he has mentioned that personal search of accused was conducted prior to search of vehicle. He has also admitted that he had mentioned in EX PW-1/A that search of Ram Niwas was conducted first. PW-1 LHC Hans Raj has also admitted in cross examination that personal search of accused was conducted prior to search of vehicle. There is no notice under Section 50 of Narcotic Drugs and Psychotropic Substances Act served upon respondents No.1 & 3 apprising them regarding their right to be searched by Gazetted Officer or Magistrate. PW-1 LHC Hans Raj has also admitted in cross examination that personal search of accused was conducted prior to search of vehicle. There is no notice under Section 50 of Narcotic Drugs and Psychotropic Substances Act served upon respondents No.1 & 3 apprising them regarding their right to be searched by Gazetted Officer or Magistrate. Therefore, mandatory provision of Section 50 of Narcotic Drugs and Psychotropic Substances Act has been violated in present case. He has further stated that he had no knowledge about taking of prior consent of the accused before his personal search. 22. There are contradictions and discrepancies in the statements of PW-1 LHC Hans Raj and PW-2 ASI Chit Ram which can be treated minor in normal circumstances, but in the present case where there are no independent witnesses of spot and only official witnesses are there, HC Narian Chand has not been examined and another spot witness Sohan Lal was given up declaring him repetitive, these contradictions and discrepancy gain significance. PW-1 LHC Hans Raj has stated that from Bihali to Paggal Nallah police party had travelled in private vehicle whereas PW-2 ASI Chint Ram has stated that they had gone from Bihali to Paggal Nallah on foot. PW-1 LHC Hans Raj has stated that police party had run towards vehicle to stop it when it was being reversed by respondent No.3, whereas, PW-2 ASI Chint Ram has stated that police party did not run but the vehicle was stopped by blowing whistle. PW-2 ASI Chint Ram has stated that seal ‘H’ after sealing contraband on spot was handed over to PW-1 LHC Hans Raj. However, PW-1 LHC Hans Raj is silent on this issue. This witness is also silent about personal search of respondents No.1 & 3 in his examination-in-chief, however, in cross-examination, he has stated that personal search of accused was conducted prior to search of vehicle. 23. PW-1 LHC Hans Raj had neither produced seal ‘H’ in the Court nor has assigned any reason for not producing seal ‘H’ in the Court. Normally, non-production of seal by a witness may not be fatal to prosecution case when otherwise prosecution evidence leads credence to prosecution case. 23. PW-1 LHC Hans Raj had neither produced seal ‘H’ in the Court nor has assigned any reason for not producing seal ‘H’ in the Court. Normally, non-production of seal by a witness may not be fatal to prosecution case when otherwise prosecution evidence leads credence to prosecution case. In the present case there are no independent witnesses and seal was handed over to police official having knowledge of importance of seal, non-production coupled with silence of the witnesses regarding seal is further raising doubt on prosecution case. PW-9 SH. Lal Singh has resealed parcel of contraband with impression of seal ‘T’. However, he is silent about handing over of seal ’T’ after resealing sample. 24. PW-1 LHC Hans Raj and PW-2 ASI Chint Ram are only witnesses of spot examined by prosecution. Veracity of their statements is doubtful. Therefore, statements of other witnesses are of no worth so as to bring guilt of respondents-accused home. 25. PW-2 Chint Ram has also admitted that he has not recorded grounds of belief as required under Narcotic Drugs and Psychotropic Substances Act, 198 prior to search of Vehicle. 26. Vehicle in question is a private conveyance and is not a Public Vehicle and at the time of interception of vehicles till time was 8.30 PM. Alleged interception is after sunset and before sunrise. PW-2 ASI Chint Ram has specifically stated in his examination in chief that he had stopped the vehicle with the help of accompanying officials on suspicion of some contraband. It is settled law that in such a situation police officer was under obligation to comply the provisions of Section 42 of the Act before conducting search in private vehicle and it is admitted by PW-2 ASI Chint Ram that he had not recorded reasons to believe as required under proviso to Section 42(1) of the NDPS Act prior to conducting search of the vehicle between sunset and sunrise. In the present case, PW-2 ASI Chit Ram has not recorded grounds in terms of proviso to sub section (1) of Section 42 of the NDPS Act even after conducting the search after sunset and before sunrise despite the fact search was of a private vehicle. Therefore, the trial is also vitiated for non compliance of mandatory provision of Section 42 of the NDPS Act. 27. Therefore, the trial is also vitiated for non compliance of mandatory provision of Section 42 of the NDPS Act. 27. It is evident from the aforesaid discussion that the statements of official witnesses cannot be treated as cogent, reliable and credible and evidence of the official witnesses suffers from serious infirmity. Therefore, prosecution has failed to prove the guilt of respondents-accused beyond reasonable doubt. 28. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence. 29. The accused have been acquitted by the trial court. From perusal and scrutiny of evidence, it cannot be said that the learned trial court has not appreciated the evidence correctly and completely and acquittal of the accused has resulted into travesty of justice or has caused mis-carriage of justice. After considering arguments of respective counsel for the parties and minutely examining the testimonies of the witnesses and other documentary evidence placed on record and in view of ratio laid down by Hon’ble Supreme Court in case Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , we are of the considered view that no case for interference is made out. 30. The present appeal, devoid of any merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.