JUDGMENT : Sanjay Karol, J. 1. Assailing the judgment dated 13.01.2011, passed by Special Judge, Fast Track Court, Shimla, H.P., in Sessions Trial No. 14-S/7 of 2009, titled as State of H.P. Versus Manjit Singh & another, whereby accused Om Prakash stands acquitted, State has filed the appeal, being Cr. Appeal No.164 of 2011, under the provisions of Section 378 of the Code of Criminal Procedure, 1973. Also assailing the finding in the aforesaid judgment, whereby the entire case property, so taken into possession during the course of investigation of the case, was ordered to be confiscated to the State of H.P., appellant Paramjeet Kaur has filed the appeal, being Cr. Appeal No.230 of 2011, under the provisions of Section 454 of Cr.P.C. 2. Accused Manjit Singh and Om Prakash were charged for having committed offences punishable under the provisions of Sections 18 and 20, read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act). 3. It is the case of prosecution that a secret information was received to the effect that accused Om Prakash was about to supply contraband substance to accused Manjit Singh. Such information came to be supplied to superior officer DSP Brijesh Sood (PW.19) through ASI Shiv Ram (PW.20), whereafter a raiding party was constituted. DSP Brijesh Sood headed the raiding party comprising of independent witness Smt. Champa Bhardwaj (PW.1), and police officials Vinesh Kumar (PW.18), Vijay Kumar (PW.21) and Sangat Ram (PW.23). On 12.03.2009, police conducted raid at different places and in all recovered 5.290 kgs of charas and 920 grams of opium. Different quantity of contraband substance was recovered from: (a) Dhaba owned and managed by accused Manjit Singh; (b) courtyard of the very same Dhaba; (c) vehicle i.e. Tevera bearing registration No.HP-51A-0863 also owned and possessed by the said accused; and his house which also was exclusively owned and possessed by him. However, his family was also residing therein. 4. Also during search, currency notes of Rs. 1,47,145/- came to be recovered from the locker of the almirah kept in the house of accused Manjit Singh. 5. However, his family was also residing therein. 4. Also during search, currency notes of Rs. 1,47,145/- came to be recovered from the locker of the almirah kept in the house of accused Manjit Singh. 5. With the recovery of the contraband substance, different samples came to be drawn by Inspector Sangat Ram (PW.23), who also sent information about the crime to the Police Station, Shimla West, where FIR No. 41/2009, dated 13.03.2009 (Ex.PW.24/A) came to be registered under the provisions of Sections 18 and 20 read with Section 29 of the NDPS Act. Accused were arrested. With the completion of formalities on the spot, contraband substance came to be deposited with MHC Nand Lal Sharma (PW.15), who sent the same for chemical analysis through Constable Kuldeep Singh (PW.22) and reports of FSL, Junga (Ex.PW.23/H, Ex.PW.23/J & Ex.PW.23/K) taken on record. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial. 6. The accused were charged for having committed offences punishable under the provisions of Sections 18 and 20 read with Section 29 of the NDPS Act, to which they did not plead guilty and claimed trial. 7. In order to establish its case, in all, prosecution examined as many as twenty four witnesses. Statement of accused Om Prakash under Section 313 of the Code of Criminal Procedure was also recorded, in which he took defence of innocence. No evidence in defence was led. 8. It is a matter of record that during trial accused Manjit Singh expired and as such, proceedings qua him came to be abated. With respect to accused Om Prakash, trial Court conclusively held the prosecution not to have established, beyond reasonable doubt, his complicity in the crime. As such, he was acquitted on all counts. 9. Such findings are subject matter of challenge by the State in Cr.Appeal No.164 of 2011. 10. It is a matter of record that in terms of the impugned judgment, case property i.e. contraband substance, including the currency notes stand confiscated to the State of H.P. It is also a matter of record that Smt. Paramjeet Kaur wife of accused Manjit Singh, laid challenge to this part of the judgment. In effect, she claims right over the currency notes, so directed to be confiscated. 11. In effect, she claims right over the currency notes, so directed to be confiscated. 11. It is also a matter of record that nothing was recovered from the person of accused Om Prakash. However, it is equally true, as stands established through the testimonies of Champa Bhardwaj (PW.1), DSP Brijesh Sood (PW.19) and Sangat Ram (PW.23) that at the time when police party raided the Dhaba of deceased Manjit Singh, accused Om Prakash was present there. Further, it is a matter of record that this accused is a driver working with the Public Transport Corporation (HRTC). It is not his case that he was on leave on that day. But then, this fact alone would by itself not be sufficient enough to suspect or establish his complicity in the alleged crime. 12. It is not the requirement of law that acts of conspiracy are to be presumptuously inferred. It is a settled preposition of law that for invoking statutory presumption under Section 35-A of the NDPS Act, prosecution has to establish its case of complicity of the accused in the crime, beyond reasonable doubt. 13. According to the police, accused Om Prakash is a supplier of drugs. Now what is the basis of such information, is not emanating from the record. Except for bald statement of Sangat Ram, which, on this count, we find not to be inspiring in confidence, there is no iota of evidence establishing such fact. 14. Prosecution wants the Court to believe that accused Om Prakash was in constant touch with accused Manjit Singh on telephone. For establishing such fact, our attention is invited to the testimonies of Ms.Minoo Rana (PW.11) and Madan Lal Sharma (PW.12). Careful perusal of the same only establishes that accused Manjit Singh was possessing mobile No.92185-19888 and one Prakash Dhiman of village Shilgaon, Post Office, Shoghi, was issued mobile/SIM No.93188-32199. Now who is this Prakash Dhiman, is a matter of secrecy. What is his linkage either to Manjit Singh or Om Prakash, remains a shrouded secret. Our specific attention is invited to document (Ex.DB), which reads as under:- ?OM PRAKASH,DHIMAN, VILLAGE SHILGAON PO SHOGHI, TEHSIL AND DISTT SHIMLA, SHIMLA, 171010 OTAF: , 3/8/2006 6:37:25 PM CAF : 2289370678 RSN :RNK7U2200KMS, PREPAID_001? But then from where this document came to be procured again remains unexplained, for Madan Lal Sharma (PW.12) has uncontrovertedly deposed that ?Paper Ext. Our specific attention is invited to document (Ex.DB), which reads as under:- ?OM PRAKASH,DHIMAN, VILLAGE SHILGAON PO SHOGHI, TEHSIL AND DISTT SHIMLA, SHIMLA, 171010 OTAF: , 3/8/2006 6:37:25 PM CAF : 2289370678 RSN :RNK7U2200KMS, PREPAID_001? But then from where this document came to be procured again remains unexplained, for Madan Lal Sharma (PW.12) has uncontrovertedly deposed that ?Paper Ext. DB having the address was not supplied by us to the police?. Also it is not the case of police that Prakash Dhiman and Om Prakash Dhiman are the very same person. It also remains unestablished on record that accused Om Prakash was otherwise using the SIM issued in the name of Prakash Dhiman. 15. Police/prosecution has not been able to establish that the mobile phones, 4/6 in number, so recovered by the police at the time of raid, belonged to Om Prakash. Discrepancy in the recovery of mobile phones, as arisen in the statement of Champa Bhardwaj (PW.1) and Sangat Ram (PW.23) is not relevant, for determining the controversy, limited in nature, before this Court, save and except that it otherwise renders the prosecution story to be doubtful. 16. Also there is nothing on record to establish that accused Om Prakash was otherwise in acquaintance with accused Manjit Singh. 17. We cannot lose sight of the fact that accused Manjit Singh was running a Dhaba, opened for general public and recovery came to be effected not in the middle of night or at odd hours, but in broad day light at about 11.00 AM. Thus alleged presence of Om Prakash at that place is not suspicious. 18. Coming to the genesis of the prosecution story of Sangat Ram (PW.23) having received secret information, we find the version, as it has come on record, to be doubtful. According to Sangat Ram, he received the information in the morning of 12.03.2009, at about 9.50 AM. According to the informer, accused Om Prakash, who is a driver by profession, supplies narcotic drugs to accused Manjit Singh. This witness prepared reasons of belief (Ex.PW.19/A), in compliance of Section 42 of the NDPS Act and in a sealed envelop sent it to the superior officer. However, when cross-examined, witness admits that such information is not in his hand, neither does he remember who scribed it. This witness prepared reasons of belief (Ex.PW.19/A), in compliance of Section 42 of the NDPS Act and in a sealed envelop sent it to the superior officer. However, when cross-examined, witness admits that such information is not in his hand, neither does he remember who scribed it. He also admits that none of the witnesses in their statements, so recorded by the police under Section 161 of Cr.P.C., had given reference of the scribe of the said document. Significantly, ASI Shiv Ram (PW.20), who took such information to the superior officer, is also not aware of the author of the said document. Hence his version cannot be relied upon to convict accused Om Prakash in view of law laid down in Koluttumottil Razak Versus State of Kerala, (2000) 4 SCCC 465. 19. On this issue, our attention is invited by learned Deputy Advocate General to the decision rendered by a Coordinate Bench of the High Court of West Bengal in Harun Rasid Ansari & Anr. Versus The State of W.B., (2015) 3 Cal LJ 408, wherein it is held that:- ?10. Significantly, PW 5 is the author of written complaint but the scribe of the said written complaint is one Tanmay Banerjee who was not examined as a witness of prosecution for which learned trial Judge has marked the signature of PW 5 only as exhibit-1. According to learned Advocate for the appellants, the contents of the written complaint cannot be taken into consideration as piece of evidence. On going through the written complaint on record it appears to us as an original document and under Section 62 of the Evidence Act it is a primary evidence and therefore, it is admissible under Section 64 of the Evidence Act. Let us see the version of the PW 5 who signed this document as author. In his deposition, he has stated that the complaint was written by one Tanmay Banerjee of Anara Railway Colony as per instruction of PW 5 and then contents of the complaint was read out by said Tanmay in Bengali and having ascertained it was correctly recorded PW 5 put his signature in Bengali on that complaint. Thus, PW 5 is not an illiterate person. During cross-examination PW 5 has stated nothing to disbelieve the fact of writing by Tanmay Banerjee and signing the complaint by PW 5 and its lodging at P.S. by PW 5. Thus, PW 5 is not an illiterate person. During cross-examination PW 5 has stated nothing to disbelieve the fact of writing by Tanmay Banerjee and signing the complaint by PW 5 and its lodging at P.S. by PW 5. Therefore, we believe that written complaint as documentary evidence exists and it has been duly proved under Section 3 of the Evidence Act. We hold that learned Trial Judge should have marked the whole written complaint and not only the signature of PW 5 as exhibit-1. We are satisfied to look into the contents of the written complaint though we do not hold that the truth has been proved by this document.? The judgment is clearly distinguishable for unlike in the instant case, there was no doubt with regard to the identity of the scribe. 20. Champa Devi (PW.1), Vinesh Kumar (PW.18), Vijay Kumar (PW.21) and Sangat Ram (PW.23) want the Court to believe that accused was present in the Dhaba at the time when recovery came to be effected by the police party. Even though, defence taken by the accused of being on duty at the relevant point in time, remains un-established and improbablized on record, but however, we do not find version of these witnesses/police officials to be inspiring in confidence or in none of the documents prepared on the spot/at the Dhaba, name of Om Prakash came to be recorded. It is a matter of record that total time taken by the police party, in effecting the recovery of the contraband substance, was approximately more than 10 hours (from 10.00 AM to 11.30 PM). But no document whatsoever came to be recorded, acknowledging presence of Om Prakash on the spot, save and except one document Ex.PB i.e. search and seizure memo, which only contains his signatures, where also there is overwriting on the date. Digit ?3? has been overwritten to make to read as ?2?. Also we find that there is overwriting at the places where dates stand recorded on the other documents. None has come forward to explain the same, rendering correctness of such document, its preparation on the spot, in a manner in which prosecution wants the Court to believe to be doubtful. Also signatures on document (Ext.PB) have not been established by scientific evidence. None has come forward to explain the same, rendering correctness of such document, its preparation on the spot, in a manner in which prosecution wants the Court to believe to be doubtful. Also signatures on document (Ext.PB) have not been established by scientific evidence. It is not the requirement of law that particulars of the informer are to be disclosed by the witness, but then there has to be some credible evidence with regard thereto. Sangat Ram does not categorically state that information, so furnished to him pertained to the accused in question. It is not the case of prosecution that accused Om Prakash is the only driver in HRTC. 21. Hence, we do not find any reason to interfere insofar as acquittal of the accused Om Parkash is concerned. 22. We notice that the trial Court, prior to passing of the order of confiscation of the case property, has not returned any specific finding as to whether currency notes recovered from the house of deceased accused Manjit Singh were used for sale or purchase of drugs and as such, required confiscation. As such, on this count alone, findings returned, to the extent of confiscation of the currency notes, are quashed and set aside, with the matter being remanded back to the trial Court for consideration afresh, in terms of Section 63 of the NDPS Act, on the basis of material already on record. Parties undertake to appear before the trial Court on 03.11.2016, whereafter, trial Court shall decide the issue within a period of two months, by affording opportunity of hearing to all concerned. 23. Thus, in view of the aforesaid, judgment of acquittal dated 13.01.2011, passed by Special Judge, Fast Track Court, Shimla, H.P., in Sessions Trial No. 14-S/7 of 2009, titled as State of H.P. Versus Manjit Singh & another (being Cr. Appeal No. 164 of 2011), is upheld. Bail bonds furnished by the accused are discharged. 24. So far as the appeal (being Cr.Appeal No.230 of 2011) filed by Paramjeet Kaur, is concerned, the matter is remanded back to the trial Court in the aforesaid terms with the impugned judgment being modified to a limited extent of confiscation of currency notes. Both the appeals stand disposed of accordingly, so also pending application (s), if any. Record of the trial Court be immediately sent back.