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Himachal Pradesh High Court · body

2016 DIGILAW 1688 (HP)

State of Himachal Pradesh v. Khem Singh

2016-08-12

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is preferred by the appellant under Section 378 of the Code of Criminal Procedure assailing the judgment of acquittal dated 29.11.2008, passed by the learned Special Judge, Bilaspur, District Bilaspur, H.P., in NDPS Case No.8 of 2005, whereby, the accused persons have been acquitted of the charges framed against them. 2. Briefly stating the facts, as per prosecution story giving rise to the present appeal, are that on 08.1.2005, at about 4.10 P.M., when ASI Ram Nath alongwith H.C. Pratap Singh No.47, HC Keshav Chand No.74, Constable Daulat Ram No.411, Constable Surinder Kumar No.274 and Constable Pal Kumar No.350, Police Station, Swarghat, were present at Kulah near Swarghat on N.H. No.21, in connection with traffic checking, then two boys were seen coming on foot from Panjpiri side allegedly carrying polythene bag in their hands and when they saw the police party, they became perplexed and tried to retrace. On suspicion, the police party caught them and enquired about their names and addresses, upon which, one of them told his name Khem Singh son of Sohali Ram, resident of village Bai-dhar, Post Office, Sumnachani, P.S. and Tehsil Bali Chowki, District Mandi and another boy disclosed his identity as Roshan Lal son of Dhani Ram, caste Rajput, resident of village Satna, P.O. Sumnachni, P.S. and Tehsil Bali Chowki, District Mandi, H.P. It has further been alleged that in the meantime, witness Ram Lal appeared at the spot and he was associated in the investigation. In his presence, as well as in the presence of police officials, the polythene bag carried by Khem Singh (accused) was checked by the Police and it was found to have contained five packets of Polythene wrapped in a stripped bed sheet containing Battinuma sticks and on its checking, smelling and burning, it was found to be Charas. Thereafter, HC Keshav Chand brought a weighing scale and the Charas, in the form of the sticks weighed and it was found 850 grams. Three samples of 25 grams each were drawn separately from Charas and were put into three separate envelopes and were marked as A-1, A-2 and A-3. Thereafter, HC Keshav Chand brought a weighing scale and the Charas, in the form of the sticks weighed and it was found 850 grams. Three samples of 25 grams each were drawn separately from Charas and were put into three separate envelopes and were marked as A-1, A-2 and A-3. All the three samples were put into one envelope, which was sealed with seal impression ‘A’ at six places and remaining Charas along with polythene bag was kept in a cloth parcel, which was sealed with seal impression “A” at eight places. On checking of the bag, red in colour, carried by Roshan Lal (accused), seven packets of Battinuma substance were found and on its checking, smelling and burning, it was found to be Charas. Thereafter, on weighment, it was found 800 grams. Three samples of 25 grams each were drawn separately from Charas and were put into three separate envelopes and were marked B-1, B- 2 and B-3 respectively. Thereafter, all the three samples were put into one envelope, which was sealed in a cloth parcel with seal impression ‘A’ at six places and remaining Charas alongwith polythene bag was kept in a cloth parcel, which was sealed with seal impression “A” at eight places. The sample of the seal was taken on a separate piece of cloth and the seal was handed-over to the witness Ram Lal. Two pulindas of the recovered Charas were sealed and the parcel of bag and blanket were taken into possession vide seizure memo Ext.PW6/B by the police. Copy of each memo was given to the accused person. On personal search of the accused Roshan Lal, bus ticket of Haryana Roadways marked as K-1 to K5 were recovered. Special report Ext. PW2/A was sent to Superintendent of Police, Bilaspur. NCB forms Exts. PW4/B and PW4/C were prepared by the Investigating Officer in presence of the accused. Thereafter, the completion of all the documentation, on the spot, Ruqa Ext. PW7/A was sent to S.H.O., Police Station, Sadar, Bilaspur, H.P., on the basis of which aforesaid F.I.R. came to be registered against the accused persons. The Investigating Officer prepared the site map and also recorded the statements of the witnesses. The accused were arrested. 3. Thereafter, the completion of all the documentation, on the spot, Ruqa Ext. PW7/A was sent to S.H.O., Police Station, Sadar, Bilaspur, H.P., on the basis of which aforesaid F.I.R. came to be registered against the accused persons. The Investigating Officer prepared the site map and also recorded the statements of the witnesses. The accused were arrested. 3. After completing the investigation, challan under Section 313 Cr.P.C. was filed against the accused persons for having committed an offence under Section 20 of the N.D. & P.S. Act and accordingly, the accused persons were charge-sheeted for the said offence to which they pleaded not guilty and claimed to be tried. Statements of the accused persons were recorded, in which, they pleaded their innocence and false implication. 4. Heard. The learned Additional Advocate General has vehemently argued that the Court below has committed illegality in acquitting the accused persons and has not appreciated the evidence correctly and to its true perspective. The learned Court below has failed to appreciate that the prosecution has proved the guilt of the accused persons beyond doubt of reasonable suspicion and so the judgment of acquittal be set aside and the accused be convicted. On the other hand, Mr. Ajay Kumar, Senior Counsel has argued that the only independent witness has not supported the prosecution case. The recovery is not proved as per the law. The only conclusion after appreciating the evidence on record, leads towards the innocence of the accused and in the circumstances there is no merit in the appeal and the same be dismissed. 5. To appreciate the arguments of the learned Additional Advocate for the appellant-State as also the learned counsel for the respondents, we have gone through the record of the case in detail. 6. To prove the case against the accused, the prosecution has examined as many as 13 witnesses. 7. PW-1 Shri Surinder Soni, in his examination-in-chief, has deposed that he is running a shop of Confectionary at Swarghat near Police Post. HC Keshav Chand had procured from him weighing machine, which could weigh material up to two Kgs. and after some time, the same was returned to him by the police. In his cross-examination, he has deposed that he cannot remember the time when the weighing machine was procured from him by HC Keshav Chand, nor he remembered the date and month when it was taken from him. and after some time, the same was returned to him by the police. In his cross-examination, he has deposed that he cannot remember the time when the weighing machine was procured from him by HC Keshav Chand, nor he remembered the date and month when it was taken from him. In the last part of his cross-examination, he has admitted that the weighing machine was procured from him and was taken to the Police Chowki, Swarghat. 8. PW-2 HC Nanak Chand has deposed that on 8.1.2005, special report Ext.PW-2/A was received in the office by him at 8.50 P.M. and the same was produced before the Superintendent of Police, Bilaspur at 9.00 PM. He produced the original special report and the relevant entry of the same as made in the register. He also denied the suggestion put to him that the entries in the special report register maintained after 1.1.2005, have been made with one hand and in the same ink. 9. PW-3 Constable Nand Lal has deposed that on 10.1.2005, HC Jiya Lal (PW4) gave sample of Charas and an envelope containing documents, as well as, NCB form vide RC No.12/05 for depositing the same in CTL, Kandaghat. The sample was sealed with 6 seal impression “A” and three of seal impression ‘P’ and the same was deposited, by him on the same day at CTL, Kandaghat and after obtaining the receipt of the delivery, the said receipt was handed-over by him to MHC. In his cross-examination, he has deposed that one pulinda, documents and NCB forms were given to him by MHC. He has admitted the suggestion as put to him to be correct that the pulinda was containing 6 and 3 seals respectively on it and the same was a single pulinda. 10. PW-4 HC Jiya Lal, has deposed that on 9.1.2005, SHO Manoj Kumar deposited with him two pulindas containing Charas, which were sealed with seal impression ‘A’ and ‘P’ and 6 samples parcels sealed with seal impression ‘A’ and ‘P’. Sample parcels were marked A-1 to A-3 and B-1 to B-3 and NCB form along with sample seal of impression ‘A’ and ‘B’. These articles had been entered by him in register No.19, which was maintained in the Malkhana vide entry Ext.PW-4/A, which has been made in his hand. Sample parcels were marked A-1 to A-3 and B-1 to B-3 and NCB form along with sample seal of impression ‘A’ and ‘B’. These articles had been entered by him in register No.19, which was maintained in the Malkhana vide entry Ext.PW-4/A, which has been made in his hand. He has further deposed that vide RC No.12/05, on 10.1.2005, he had handed-over two sample parcels A-1 and B-1 along with sample seals and NCB forms along with docket to constable Nand Lal, who deposited the same in CTL, Kandaghat for chemical analysis and returned the receipt thereof. He further deposed that he made entry on NCB form Ext.PW-4/B and PW-4/C in Column No.12. Ext. PW-4/D and PW-4/E, the later being entry under which the case property was received by him. In his cross-examination, he deposed that he had handed-over two pulindas and one docket containing documents to Nand Lal. 11. PW-5 SI Sita Ram, on completion of the investigation, prepared the challan and presented the same in the Court. 12. PW-6 HC Pratap Singh deposed that on 8.1.2005, at about 4.10 PM, he along with HC Keshav Chand No.74, C. Daulat Ram, No.411, C. Surender Kumar No.274, C. Pal Kumar, No.350 and HC Nand Lal accompanied by ASI Ram Nath, Incharge Police Post, Swarghat, were present at Village Kulah on N.H.-21, in connection with traffic checking duty, at that time, two boys came there from Panjpir side on foot; one of them was carrying a cloth bag and another was carrying a polythene bag in their hands and on seeing the police party both retraced and hence they were stopped and enquired about their names. One of them disclosed his name as Khem Singh alias Khemu son of Shri Sodhi Ram, resident of Village Baidhar, P.S. Aut, Tehsil Balichowki, District Mandi and the other disclosed his name as Roshan Lal son of Shri Dhani Ram, resident of village Satna, P.S. Aut, Tehsil Balichowki, District Mandi, H.P. In the meantime, witness Ram Lal (PW9) had also arrived at the spot from Panjpiri side. The said independent witness was associated by ASI Ram Nath with the police and the bags of both the accused were searched by the police. The polythene bag carried by Khem Singh was found to be containing one bed sheet with stripes, which have contained 5 packets of polythene. The said independent witness was associated by ASI Ram Nath with the police and the bags of both the accused were searched by the police. The polythene bag carried by Khem Singh was found to be containing one bed sheet with stripes, which have contained 5 packets of polythene. ASI Ram Nath opened and checked one of the polythene packet, which was found to be Charas in the form of Battinuma (stick type). One of the sticks was burnt with the help of match stick, which was found to be Charas. The remaining 4 packets were also checked and were also found to be containing similar Charas. ASI Ram Nath sent HC Keshav Chand No.74 to bring weighing machine and weights from Swarghat Bazaar. ASI Ram Nath mixed the Charas, which was found in all the 5 packets and the same was weighed and it was found to be weighing 850 grams. From the bulk Charas. 3 samples, each of 25 gms from mixed Charas, were taken, which were marked as A-1, A-2 and A-3 respectively and were put into envelopes and the same were stated to be sealed with 6 seals of seal impression ‘A’. The remaining 775 gms. Charas alongwith polythene packets were put into a cloth parcel and were sealed with 8 seals of seal impression ‘A’. The bag carried by accused Roshan Lal was checked by ASI Ram Nath, which was containing one blanket (Pattu). A cloth parcel of green colour was found in the blanket and the cloth parcel was found to be containing 7 packets of polythene. The polythene was transparent and Charas was visible from the packets in the form of Battinuma. One of the polythene packet was opened and checked by ASI Ram Nath by burning one of the stick, it was found to be Charas. All the 7 packets were got mixed by ASI Ram Nath and on weighing, they were found to be containing 800 gms. He also deposed that ASI Ram Nath separated 3 samples of 25 gm each, which were marked as B-1, B-2 and B-3 respectively and put inside one envelope and were sealed with 6 seals of seal impression ‘A’. The remaining 725 gms of Charas was put into a cloth parcel along with polythene packets and sealed with seal impression ‘A’. He also deposed that ASI Ram Nath separated 3 samples of 25 gm each, which were marked as B-1, B-2 and B-3 respectively and put inside one envelope and were sealed with 6 seals of seal impression ‘A’. The remaining 725 gms of Charas was put into a cloth parcel along with polythene packets and sealed with seal impression ‘A’. Sample seal was taken on a separate cloth and seal after use was given to witness Ram Lal. All the samples 6 in numbers and two parcels of 725 gms and 775 gms were taken into possession by the police vide seizure memo Ext. PW-6/B, which was signed by the witness Ram Lal and accused Khem Singh and Roshan Lal. Special report was prepared by the Investigating Officer and was sent to the Superintendent of Police, Bilaspur, H.P. The Investigating Officer has also deposed to have filled NCB form at the spot. He also prepared Ruqa, which was sent to the Police Station, Sadar, Bilaspur. He also inspected the spot and recorded the statements of the witnesses. He also identified both the accused persons. He further deposed that red coloured bag Ext.P-1, sample A-2, Ext. P-2, sample A-3, Ext. P-3 both have been deposed to be bearing the signatures of the witnesses. Cloth parcel containing 775 gms Charas Ext. P-4, sealed with seal impression ‘A’ was also bearing his signatures and the signatures of the witness. It has further been stated that the bag carried by accused Roshan Lal was found to be containing one blanket Ext.P-5. Polythene bag Ext.P-6 was carried by Khem Singh accused, which was found to be containing one striped bed sheet Ext.P-7. Two samples B-2 and B-3, which are Exts. P-8 and P-9 have been stated to be the same. A cloth parcel Ext.P-10, weighing 725 gms Charas is the same and bears his signatures. It has been further deposed that when the parcels were produced, seals were found intact. It has been further stated that his predecessor-in-office has recorded that 5 polythene packets in the form of sticks were taken out from the said parcels. Polythene packets Ext.P-11 to P-15 have been deposed by this witness to be the same, which were carried by the accused Khem Singh. It has been further stated that his predecessor-in-office has recorded that 5 polythene packets in the form of sticks were taken out from the said parcels. Polythene packets Ext.P-11 to P-15 have been deposed by this witness to be the same, which were carried by the accused Khem Singh. Another parcel Ext.P-7 sealed with seal impression ‘A’ has been deposed by this witness, who during the course of the recording the statement of this witness, had shown the said parcel, as was produced in the Court. Seals were found intact and from the green cloth packet Ext.P-16, it was found to be containing 7 packets of polythene having Charas. All the packets of polythene empty bearing Ext.P-17 to P-23 have been deposed to be the same which were kept in Ext.P-16 containing Charas. Both the packets Ext.P-4 and P-10 have been stated to be containing Charas weighing 775 and 725 gms respectively. The same were stated to have been recovered from the accused persons namely Khem Singh and Roshan Lal respectively. Ext. PW-6/C search memo was prepared by the I.O. regarding search of accused Roshan Lal and Ext. PW-6/D is also stated to have been prepared by the I.O. after carrying out the search of accused Khem Singh. On personal search, tickets of Haryana Roadways were recovered from accused Roshan Lal, which were amounting to Rs.190/- and marked as Mark-K to K-5 respectively. They have been arrested under memo Ext.PW-6/E. Further, during the course of examination, this witness has admitted that Ext.P-3 and Ext. P-2 do not contain the signatures of the accused persons. It has also been admitted that no seal was present on those two packets, besides, it has been admitted to be correct that Ext.P-8 and P-9 do not contain the signatures of the accused and there were no seals on these packets except one seal, on each. All the three samples had been marked as A-1, A-2 and A-3 respectively and were put in one envelope, which were sealed with 6 seals and another sample mark B-1, B-2 and B-3 were put in one envelope, which was sealed with 6 seals. He further deposed that ASI had himself prepared 4 pulindas i.e. two pulindas containing Charas weighing 775 and 725 gms and another two pulindas containing 6 samples. He further deposed that ASI had himself prepared 4 pulindas i.e. two pulindas containing Charas weighing 775 and 725 gms and another two pulindas containing 6 samples. In the last part of his crossexamination, this witness has shown his ignorance as to why the Investigating Officer had not used the cloth in sealing the sample of Charas. He also admitted that the envelopes were in the bag of the Investigating Officer. He again deposed that the envelopes in which sample pulindas were sealed, they were not shown to him in the Court. 13. PW-7 C. Surinder Kumar, during the course of his examination- in-chief, has supported the testimony of PW-6 in all material particulars. However, during the course of his examination-in-chief, had deposed that 3 sample parcels marked A-1, A-2 and A-3 were put in a separate envelope and also B-1, B-2 and B- 3 had also been put into a paper packet by the Investigating Officer at the spot, but during his cross-examination, he came to resort to an inter-se and intrase contradiction with his testimony in his examination-in- chief, wherein, he had deposed that all the pulindas were prepared with cloth parcel. However, he admitted in his cross-examination that out of all the four cloth pulindas, only two have been shown to him in the Court. 14. PW-8 HC Keshav Chand has also corroborated the testimony of PW-6 and P-7 in all material particulars relating to seizure of contraband, weighing, sampling, as well as, pulindas with respect to the sample as well as residue parcels, as also, the contents of various documents prepared relating to search seizure and recovery. He also in his examination-in- chief deposed in corroboration to PW-6 qua the fact that A-1, A-2 and A-3 were all together put into paper packets and sealed with seal impression ‘A’ 6 in number, besides he also deposed that B-1, B-2 and B-3 respectively were also put into three separate packets and all such packets were put into one envelope and sealed with seal impression ‘A’ 6 in number. However, the cloth parcel was prepared only with respect to the bulk Charas, as recovered from the conscious and exclusive possession of Khem Singh and Roshan Lal accused persons respectively. However, the cloth parcel was prepared only with respect to the bulk Charas, as recovered from the conscious and exclusive possession of Khem Singh and Roshan Lal accused persons respectively. During the course of his cross-examination, he also deposed that only two pulindas were made of cloth at the spot, whereas two pulindas of sample were prepared with envelopes of paper. 15. PW-9 Ram Lal is the independent witness, who has turned hostile. In his cross-examination, he has admitted that Ext.PW-6/B bears his signatures and that memos Ext.PW-6/C and Ext. PW-6/D also bears his signatures. He denied that the proceeding relating to search, seizure and sampling and preparation of the aforesaid memos was done in his presence at the place recited in the site plan. He also deposed that he had signed the documents without reading the contents, on the request of C. Surender Kumar, who belongs to his area. In his re-examination, although he admitted signatures on Exts. P-8, P-9 and parcels P-4, Sample P-3 and P-2, yet, in his cross-examination he deposed that the signatures on the exhibits were procured by the police on the parcels, in the Police Station at about 3.30 P.M. 16. PW-10 Inspector Manoj Kumar, SHO, Police Station, Sadar, District Bilaspur, H.P. has deposed that on 8.1.2015, a Ruqa, Ext.PW-7/A scribed by ASI Ram Nath, Incharge, Police Post, Swarghat was received at Police Station, Sadar, through Constable Surinder Kumar No.274 on which FIR Ext. PW-7/B was registered, which bears his signatures. He has further deposed that ASI Ram Nath presented two paper envelopes sealed with 6 seal of seal impression ‘A’, which were stated to be containing samples of Charas each. It has been stated that in both the envelopes there were three samples each weighing 25 gms. In one envelope, 3 samples marked as A-1, A-2, and A-3 were also found sealed with 6 seals of seal impression ‘A’ and in the other envelope 3 samples of Charas of 25 gms each marked as B-1, B-2 and B-3 respectively were also sealed with 6 seals of seal impression ‘A’. He has further deposed that ASI Ram Nath also presented two cloth parcels, both sealed with 8 seals with seal impression ‘A’ along with sample seal and NCB forms. He has further deposed that ASI Ram Nath also presented two cloth parcels, both sealed with 8 seals with seal impression ‘A’ along with sample seal and NCB forms. One cloth parcels was marked as ‘A’ containing to be 775 gms Charas and the another cloth parcel has been deposed to be containing 725 gms Charas and sealed with 8 seals of seal impression ‘A’. He has also deposed that he resealed 6 samples of Charas marked as A-1 to A-3 and B-1 to B-3 with seals of impression ‘P’ separately and that he had sealed two cloth parcels containing 775 and 725 gms Charas with 6 seals of seal impression ‘P’. A separate sample of seal Ext. PW-10/B has been deposed to have been taken by him on a piece of cloth. He has further deposed that after re-sealing the articles along with the NCB form and sample seal, they were deposited by him with MHC Jiya Lal, Police Station, Sadar, Bilaspur, H.P. He has also deposed that he filled up column No.9, 10 and 11 of the NCB form Ext. PW-10/C. In his cross-examination, he has deposed that Ext.PW-10/A was read by him. He has admitted the suggestion that according to the contents of Ruqa, sample mark A-1, A-2 and A-3 were not sealed with seal impression ‘A’ (6 seals). Like wise, sample mark B-1, B-2 and B-3 were also not sealed with seal impression ‘A’ (6 seals). He has also deposed that all the samples were not sealed as per the contents of the seizure memo Ext.PW-4/E. He also admitted the suggestion that there is no mention of NCB forms on Ext. PW-4/E. He further deposed that there is no mention of sample of seal ‘A’ in Ext.PW-4/E. He further deposed that two envelopes in which 6 samples were kept, had not come to be retained by him. 17. PW-11 C. Kewal Singh has deposed that he had brought original Roznamcha dated 8.1.2005 from Police Post, Swarghat and as per this original Roznamcha, Rapat No.10 was made at the instance of ASI Ram Nath regarding departure of police party headed by ASI Ram Nath, which is Ext.PW-11/A and bears his signatures. Likewise, he deposed about Rapat No.14 regarding departure of HC Partap Singh, Constable Pal Kumar, No.305 for traffic checking. Ext. PW-11/B is stated to be correct as per the original, which bears his signatures. 18. Likewise, he deposed about Rapat No.14 regarding departure of HC Partap Singh, Constable Pal Kumar, No.305 for traffic checking. Ext. PW-11/B is stated to be correct as per the original, which bears his signatures. 18. PW-12 HC Daulat Ram supported the deposition of PW-6 in all material particulars relating to search, seizure and recovery memos and as also, in corroboration to PW-6, who has deposed that sample parcels marked A-1 to A-3 were put inside the paper envelope, however, in contradiction to PW-6, who having been deposed that mark A-1 to A-3 were put inside the paper envelope and the paper envelope with seal having impression ‘A’. 19. PW-13 SI Ram Nath, who was the Investigating Officer, has deposed tandem with the testimony of PW-6, to the extent of apprehending the accused persons, searching their bags and recovery of contraband. He further deposed that 3 samples of 25 gms each were taken from the Charas weighing 850 gms, which was recovered from the accused Khem Singh separately and were sealed in a cloth parcel with the seal impression ‘A’ and all the 3 parcels were marked as A-1 to A-3 after putting 6 seals of impression ‘A’ on each parcel. He also stated that the remaining Charas was put into the same bag and was sealed in a cloth parcels with 8 seals of impression ‘A’ and the parcel was marked as ‘A’. He further deposed that 3 samples of 25 gms each were taken from the Charas recovered from accused Roshan Lal, which were sealed in cloth parcels with 6 seals of seal impression ‘A’ on each parcel and were marked as B-1, B-2 and B-3 separately and the remaining Charas was put into a polythene bag and was sealed in a cloth parcel with 8 seals of seal impression ‘A’ and the same was marked as Mark-B. The sample and the remainder Charas were taken into possession vide memo Ext. PW-6/B in the presence of witness Ram Lal and HC Pratap Singh, who have signed the same. He further deposed that spot map Ext. PW-13 was prepared and the marginal notes of the same were also in his hands, which bears his signatures. NCB forms, in triplicate, were also filled up. He also sent special report Ext.PW-2/A to the Superintendent of Police, Bilaspur through C. Daulat Ram. He further deposed that spot map Ext. PW-13 was prepared and the marginal notes of the same were also in his hands, which bears his signatures. NCB forms, in triplicate, were also filled up. He also sent special report Ext.PW-2/A to the Superintendent of Police, Bilaspur through C. Daulat Ram. He also deposed that sample seals were prepared on a piece of cloth. In his cross-examination, he came to be confronted with the fact that the sample parcels marked as A-1, A-2 and A-3 and B-1, B-2 & B-2, respectively as existing in the seizure memo, have been recited to have been an put in one envelope each and each of the envelopes, alone, bearing 6 seals of impression ‘A’. He deposed that the aforesaid mark A-1 to A-3 and B-1 to B-3 qua which recital existed in Ext.PW-6/B, in respect to both of theirs being each put into paper packets and the two paper packets containing A-1 to A-3, as well as, B-1 to B-3 having been sealed with seal impression ‘A’ has been deposed to be incorrectly scribed by the Head Constable. 20. The prosecution, in this case, has failed to prove that the case property remained intact from the date of collection till the date when it was produced in the Court. At the same point of time, the accused has not signed Mark A-1 to A-3, Exts. P2 and P3 and Mark B-1 to B-3. Exts. P8 and P9, which also shows that as these does not appear the signatures of the accused persons, the presumption is that there cannot be any conclusive proof that they remained intact and not tampered with. PW3 C. Nand Lal, in his cross-examination, has admitted the suggestion that pulinda, which was given to him by the HC Jia Lal (PW4) was containing 6 and 3 seals impression respectively on it and the same was a single pulinda/parcel. However, PW4 HC Jia Lal deposed that SHO deposited with him two pulindas, one containing Charas sealed with seal impression ‘A’ and ‘P’ and 6 sample parcels sealed with seal impression ‘A’ and ‘P’. The same parcels were marked as A-1 to A-3 and B-1 to B-3 and NCB form along with sample seal of impression ‘A’ and ‘B’. However, PW4 HC Jia Lal deposed that SHO deposited with him two pulindas, one containing Charas sealed with seal impression ‘A’ and ‘P’ and 6 sample parcels sealed with seal impression ‘A’ and ‘P’. The same parcels were marked as A-1 to A-3 and B-1 to B-3 and NCB form along with sample seal of impression ‘A’ and ‘B’. He had also handed over two parcels along with sample seals and NCB form along with docket to PW3, but PW3 has deposed with regard to one pulinda only. This is also a material contradiction and discrepancy in the prosecution story. He has admitted that independent witness Ram Lal was working as a Liquor vend at Swarghat. Then again stated that he do not know about him. Again stated that he do not know that he is nephew of Head Constable Kesav Chand. He admitted that the accused persons had not signed on the sample parcels as well as bulk Charas. He has denied that the bus tickets were recovered from the personal search of the accused persons. The accused were examined under Section 313 Cr.P.C. The accused persons denied their involvement in the case and have stated that they are innocent. As per the accused persons, they were going to Chandigarh in Haryana Transport Bus and when they reached at Swarghat, the police made them to get down on the basis of suspicion and they were given beatings and a false case has been made out against them. 21. PW6 HC Partap Singh has admitted that Ext.P3 and P2 do not contain the signatures of the accused and also admitted that no seal was present on these two packets. He also admitted that Ext.P8 and P9 do not contain the signatures of the accused persons and there are no seals on these packets, except one seal on each packet. He has also stated that envelopes in which sample pulindas were sealed, were not seen by him in the Court on that day. He further stated that ASI Ram Nath was asked many persons at the spot to join investigation but they refused to do so. ASI Ram Nath cannot state in the Court what action he has taken against those persons, who have refused to join as witnesses. Whether he has issued any written request to them? There is no statement to this effect of ASI Ram Nath. ASI Ram Nath cannot state in the Court what action he has taken against those persons, who have refused to join as witnesses. Whether he has issued any written request to them? There is no statement to this effect of ASI Ram Nath. So, it is there that the independent witnesses were available on the spot at the same point of time, the only independent witness, which the prosecution has joined in this case, has not supported the prosecution case at all. While appearing as PW9, he has deposed that he was called by the police and his signatures were obtained at 2-3 places and nothing was recovered from the accused persons in his presence. He was also cross-examined by the learned Public Prosecutor at length, but nothing favourable to the prosecution has come. He has also admitted that he signed memos Ext.PW6/C and Ext.PW6/D also which bears his signatures, as a witness. He has stated that the police has not explained the contents of the documents, which were got signed from him. As per him, Constable Surinder Kumar (PW7), who belong to his area, had called him to sign the papers, which he signed in good faith on the request of Constable Surinder Kumar. He further deposed that neither the recovery has been got effected in his presence nor any article was recovered from the accused persons in his presence. He has further deposed that the accused persons are not known to him. Though, this witness has admitted his presence and signatures at the relevant time, but he has specifically stated that he has signed because one of the police official was known to him and he signed the papers in good faith and at the request of Constable Surinder Kumar, PW7. The Investigating Officer though admitted that this witness is nephew of a Police Constable but immediately thereafter denied it. This is also one of the reason to cast a suspicion in the prosecution story. Though, the statement so made by PW 9 has caused major dent in the prosecution case and analyzing his statement and that of official witnesses, there emerges two possible views and in such a situation the findings of conviction cannot be recorded. This is also one of the reason to cast a suspicion in the prosecution story. Though, the statement so made by PW 9 has caused major dent in the prosecution case and analyzing his statement and that of official witnesses, there emerges two possible views and in such a situation the findings of conviction cannot be recorded. However, we are not inclined to believe the version of PW 9 blindly because no person of ordinary prudence is expected to put signatures on the documents that too during the course of investigation of a criminal case by the police without going through the contents thereof or at the behest of anyone else. Anyhow, we leave this aspect of the matter open to be considered and discussed further in the latter part of this judgment. The recovery of the bus tickets from the accused persons and their statements under Section 313 Cr.P.C. that they were made to got down from the bus when they were traveling to Chandigarh at Police Post, Swarghat and a false case has been made against them also creates suspicion with regard to the recovery. In these suspicion circumstances, it is difficult to hold that the accused persons guilty beyond suspicion. 22. Further, even PW10 Inspector Manoj Kumar, SHO has admitted in his cross-examination that according to the contents of Ruqa sample Mark A-1 to A-3 were not sealed with seal impression ‘A’, 6 seals in numbers, likewise samples B-1 to B-3 were also not sealed with seal impression ‘A’ of 6 seals. He also deposed that all the samples were not sealed as per the contents of the seizure memo Ext.PW4/A. He has also admitted that there is no mention of NCB Form over Ext. PW4/E. He has further stated that two envelopes in which these sample seals were kept, have not been retained by him. 23. In these circumstances, the statement of the prosecution witness regarding recovery of the alleged narcotic substance and keeping the same in safe custody, as well as, also the samples are not tampered with has to be taken with due care and caution. At the same point of time, only independent witness has not supported the prosecution case at all. 23. In these circumstances, the statement of the prosecution witness regarding recovery of the alleged narcotic substance and keeping the same in safe custody, as well as, also the samples are not tampered with has to be taken with due care and caution. At the same point of time, only independent witness has not supported the prosecution case at all. It is true that the conviction can be passed on the statements of the official witnesses alone, but if the statement of the official witness are confidence inspiring, but in this case, the statement of the prosecution witness are not confidence inspiring as well as the prosecution has failed to prove conclusively that the alleged narcotic substance was recovered from the exclusive possession of accused, a suspicion howsoever strong cannot take the place of the proof. In these circumstances, we do not find any infirmity with the well reasoned judgment of the learned Court below acquitting the accused persons holding that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 24. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 25. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 26. In these circumstances, as the prosecution has failed to prove the guilt of the accused persons conclusively and beyond shadow of doubt. This Court finds that learned Appellate Court has rightly dealt with the evidence and found the same to be not worthy of credence. We, thus, find no merit and substance to interfere with the well reasoned judgment, passed by learned Appellate Court and the appeal filed by the appellant-State is accordingly dismissed. Consequently, the judgment under challenge to the extent of acquittal of the accused persons is affirmed. 27. We, thus, find no merit and substance to interfere with the well reasoned judgment, passed by learned Appellate Court and the appeal filed by the appellant-State is accordingly dismissed. Consequently, the judgment under challenge to the extent of acquittal of the accused persons is affirmed. 27. Before parting with the case, we would be failing in our duty, if ignore the manner in which PW-9 Ram Lal, independent witness has conducted himself while in the witness box. Taking note of the statement, he made while in the witness box, in our opinion, he has not disclosed true facts. He has admitted his signatures on the seizure memo Ex. PW6/B, memo Ex. PW6/C qua personal search of accused Roshan Lal, memo qua personal search of accused Khem Raj Ex. PW 6/D, sample of seal Ex.PW6/A and also the memo whereby the accused were informed about the offence they committed and the grounds of their arrest. He while in the witness box admits his signatures on these memos, however, according to him, neither seizure nor any other proceedings has taken place in his presence. As per his version, he was called by the police his signatures were obtained at 2-3 places. In his cross-examination, conducted on behalf of the prosecution, he tells that the contents of these documents were not explained to him by the police before obtaining his signatures on the same. According to him, Constable Surender Kumar (PW 7), who belongs to his area, called him and made him to sign these documents, which he had signed in good faith at the instance of said Constable. True it is that he had denied his acquaintance with the accused persons, however, admitted his presence on the spot and also his signatures on the documents. PW 9 has, therefore, blown hot and cold in the same breath. Normally, it is not expected from a man of ordinary prudence to have signed the documents, that too, during the course of investigation of a criminal case where the freedom and liberty of an individual is at stake that too at the behest of someone known to him. If nothing of this sort took place in his presence, his act of having signed these documents prima-facie reveal that he has intended to implicate innocent persons in a criminal case. If nothing of this sort took place in his presence, his act of having signed these documents prima-facie reveal that he has intended to implicate innocent persons in a criminal case. This witness, in our opinion, therefore, has rendered himself liable to be dealt with in accordance with law including his prosecution under Section 211 of the Indian Penal Code and also within the meaning of sub-Section (1) of Section 195 of the Indian Penal Code. 28. Section 340 of the Code of Criminal Procedure takes care of such a situation. The provisions contained under the Section ibid reveal that if on an application made to it or otherwise, the Court is of the opinion that it is expedient and in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-Section (1) of Section 195 of the Code, which appears to have been committed in relation to proceeding of a case in that Court, the Court shall hold a preliminary inquiry and after recording a finding that by producing a document or giving a statement in evidence, an offence referred to in clause (b) of sub-Section (1) of Section 195 of the Code is made, order to make a complaint in writing to a Magistrate of the first class having jurisdiction over the matter. 29. Section 340 of the Code of Criminal Procedure contemplates a preliminary inquiry to be conducted by the Court to form an opinion that it is expedient and in the interest of justice to hold inquiry into the offence which appears to have been committed. It is not mandatory for the trial Court to hold preliminary inquiry, because it has the opportunity to see the witness while in the witness box and to observe his demeanour. We, however, feel that the appellate Court, having no such opportunity to observe the demeanour of the witness, should hold an inquiry and give an opportunity of being heard to him, before forming an opinion that an offence within the meaning of clause (b) of sub-Section (1) of Section 195 of the Code of Criminal Procedure appears to have been committed by him. It is only thereafter, an order qua filing a complaint, as contemplated under Section 340 of the Code of Criminal Procedure, should be passed. 30. It is only thereafter, an order qua filing a complaint, as contemplated under Section 340 of the Code of Criminal Procedure, should be passed. 30. Therefore, before initiating any action against PW-9 Ram Lal, we deem it expedient and in the interest of justice to call upon him to show cause as to why an action be not initiated against him in the light of the observations in this judgment. Consequently, there shall be a direction to the Registry to issue show cause notice to PW-9 Ram Lal for 23rd September,2016 and the proceedings be registered against him separately. A copy of judgment be also sent to PW-9 Ram Lal alongwith show cause notice. Office of learned Advocate General to collect notice from the Registry of this Court for onward transmission to the Superintendent of Police, Bilaspur, for effecting service thereof upon the witness Ram Lal well before the date fixed. The record of the learned trial Court be retained for being referred to at the time of further consideration of the matter, after taking on record the version of the witness to be referred to as ‘the respondent’ in the proceedings ordered to be drawn separately against him.