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2016 DIGILAW 2216 (HP)

State of Himachal Pradesh v. Guddu Ram

2016-10-18

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, State has challenged judgment passed by the Court of learned Special Judge, Kullu, in Session Trial No. 09 of 2011 dated 04.12.2012, vide which, learned trial Court has acquitted the accused for commission of offence punishable under Section 20 of Narcotic Drugs & Psychotropic Substances Act, hereinafter referred to as the NDPS Act. 2. In brief, the case of the prosecution was that on 13.11.2010 a police party headed by PW-5 SI Om Chand had gone towards Kharahal, Bijli Mahadev and Larikot etc. and when the said police party was present around 2.30 P.M. at a place known as Burgani Nallah, accused was noticed coming from Larikot side carrying a black rucksack bag. Accused was stopped by the police party and inquiry was made from him about the articles kept in the said bag. As the place was desolate and no independent witnesses were available, PW-4 HC Gian Chand was sent to bring independent witnesses, who however came back after sometime and reported that no independent witnesses were available. In these circumstances, Investigating Officer associated PSI Anil Kumar and PW-4 HC Gian Chand as witnesses. Thereafter, Investigating Officer gave his personal search to the accused and this was followed by apprising the accused of his legal right to be searched before the Gazetted Officer or Magistrate vide Memo Ext. PW4/B. As per the prosecution, accused consented to be searched by the police party and search of the bag carried by the accused revealed that the same contained Charas which when weighed was found to be 895 grams. Charas recovered was repacked and sealed in cloth parcel with six seals of A. NCB form was filled. Sample seal of seal A was drawn up on cloth pieces. Seal after use was handed over to PSI Anil Kumar. Case property was taken into possession vide seizure memo Ext. PW4/D. Rukka Ext. PW4/E was prepared and sent to Police Station, Kullu through HC Gian Chand, on the basis of which FIR Ext. PW4/F was recorded by PW-6 SHO Ashok Kumar. Investigating Officer prepared spot map and also recorded statements of witnesses as per their versions. Case property was taken into possession vide seizure memo Ext. PW4/D. Rukka Ext. PW4/E was prepared and sent to Police Station, Kullu through HC Gian Chand, on the basis of which FIR Ext. PW4/F was recorded by PW-6 SHO Ashok Kumar. Investigating Officer prepared spot map and also recorded statements of witnesses as per their versions. This was followed with the arrest of the accused and he along with case property were brought to the Police Station, Kullu and after the case property was produced before the SHO PW-6, the same was resealed by the SHO and same was deposited with MHC Police Station. Thereafter, the sample of the contraband as well as all other relevant documents etc. was sent for chemical examination to FSL, Junga and as per the report of FSL Ext. PW5/C, extract was found containing sample of Charas and quantity of resin was found 29.21% W/W. 3. After completion of the investigation, challan was filed in the Court and as a prima facie case was found against the accused, he was charged for commission of offence punishable under Section 20 of Narcotic Drugs & Psychotropic Substances Act, to which, he pleaded not guilty and claimed trial. 4. Learned trial Court vide its judgment dated 04.12.2012 acquitted the accused of the charged offences by holding that the prosecution had failed to prove its case against the accused beyond reasonable doubt. Learned trial Court took note of the fact that as per the prosecution the entire proceedings had taken place in presence of PW-3 HHC Tek Chand, however, HHC Tek Chand while he entered the witness box as PW-3 stated that no other proceedings of the case were conducted in his presence. Learned trial Court took note of the fact that not even a single word was deposed by this witness with regard to search, recovery and seizure of the case property. Learned trial Court also took note of the fact that as serious doubts were created about the recovery of contraband from the accused in the mode and manner as was put forth by the prosecution on the basis of the testimony of the official witnesses, in these circumstances non-joining of independent witnesses to corroborate the case of the prosecution strengthened these doubts. Learned trial Court held that though it was not necessary that in each and every case the version of the prosecution was required to be corroborated by the independent witnesses, however, in the facts of present case, non-joining of independent witnesses created serious doubts about the case of the prosecution and in such circumstances independent corroboration was required to give credence to the story of the prosecution. Learned trial Court also took note of the fact that perusal of the option memo Ext. PW4/B demonstrated that on the top of it police had mentioned offence under Section 20 of Narcotic Drugs & Psychotropic Substances Act, which demonstrated that either the police had prior knowledge with regard to accused being in possession of Charas or the memo was prepared later on. Learned trial Court also took note of the fact that even if these discrepancies were ignored, keeping in view the fact that there were great contradictions and inconsistencies in the prosecution witnesses, these inconsistencies and discrepancies gained importance. Learned trial Court also held that no percentage of tetrahydrocannabinol was mentioned in the report of the Chemical Examiner, hence the contraband so recovered could not be said to be Charas as per report Ext. PW6/D. On these basis, learned trial Court acquitted the accused for commission of offence punishable under Section 20 of Narcotic Drugs & Psychotropic Substances Act 5. Mr. Vikram Thakur, learned Deputy Advocate General, has strenuously argued that the judgment passed by learned trial Court was perverse and not sustainable in the eyes of law. Mr. Thakur argued that a perusal of the testimony of the prosecution witnesses demonstrated that the prosecution had successfully proved its case against the accused beyond reasonable doubt and this important aspect of the matter had been ignored by learned trial Court. Mr. Thakur further argued that it also stood established from the report of Chemical Examiner that the contraband which was recovered from the accused was a narcotic and on the basis of evidence produced on record by the prosecution the accused was liable to be convicted for commission of offence punishable under Section 20 of Narcotic Drugs & Psychotropic Substances Act. Mr. Mr. Thakur argued that testimony of the prosecution witnesses was cogent, reliable and trustworthy and all material points were duly proved in their statements by the prosecution witnesses and this aspect of the matter had been over looked by learned trial Court. Accordingly, on these basis, he argued that the judgment passed by learned trial Court was not sustainable in the eyes of law and the same be set aside and the accused be convicted for commission of offence punishable under Section 20 of Narcotic Drugs & Psychotropic Substances Act. 6. Mr. Ajay Chandel, learned counsel for the appellant argued that there was neither any perversity nor infirmity with the findings returned by learned trial Court from which it could be said that the reasons given by learned trial Court while acquitting the accused were not borne out from the records of the case. Mr. Chandel submitted that the prosecution had miserably failed to prove its case against the accused, on the basis of evidence produced on record, beyond reasonable doubt and accordingly, learned trial Court had rightly acquitted the accused because in the absence of there being any cogent material on record to nail the guilt of the accused. The accused could not have been convicted on the basis of totally unreliable and untrustworthy statements of the prosecution witnesses. Mr. Chandel further argued that though it is not necessary that in each and every case independent witnesses have to be associated by the prosecution to prove its case but in the peculiar facts of this case non-joining of independent witnesses was fatal for the prosecution because it was not as if the independent witnesses could not have been associated by them had an attempt this regard been made by the police party. According to Mr. Chandel no recovery of contraband was in fact effected from the accused by the Investigating Officer in the mode and manner in which the prosecution wants this Court to believe and it is for this reason that no independent witness was associated by the Investigating Officer in the course of search, recovery and seizure of the contraband. On these grounds, Mr. Chandel urged that there was no perversity with the findings returned by learned trial Court and the same called for no interference 7. On these grounds, Mr. Chandel urged that there was no perversity with the findings returned by learned trial Court and the same called for no interference 7. We have heard learned counsel for the parties and have also gone through the records of the case as well as judgment passed by learned trial Court. 8. In order to prove its case, prosecution in all examined six witnesses. 9. HC Ram Krishan entered the witness box as PW-1 and he stated that on 13.11.2010 he was posted as MHC, Police Station Kullu and SI/SHO Ashok Kumar deposited the case property with him which was handed over by him to HHC Tek Chand with direction to deposit the same at FSL, Junga. He further deposed that after depositing the property at FSL, Junga, HHC Tek Chand deposited the receipt and RC with him. 10. HC Harbans Kumar entered the witness box as PW-2 and he stated that on 15.11.2010 at 10.15 A.M. Addl. S.P. Sandeep Dhawal handed over special report Ext. PW2/A to him after making his endorsement and he made entry in this regard in the concerned Register. 11. HHC Tek Chand entered the witness box as PW-3 and he deposed that on 15.11.2010 MHC Ram Krishan handed over to him one cloth parcel Ext. P-1 and as per direction of MHC he deposited the case property at FSL, Junga and obtained receipt of the Lab, which was handed over to the MHC. 12. HC Gian Chand entered the witness box as PW-4 and he stated that on 13.11.2010 he along with PSI Anil Kumar, HHC Tek Chand and SI Om Chand were present for the purpose of patrolling at a place known as Burgani Nallah at around 2.30 P.M.. They noticed a person coming from Larikot side towards Burgani Nallah who was carrying a rucksack. He further deposed that the accused on seeing the police party turned back and tried to escape from the spot, however, he was nabbed on the spot by SI Om Chand with the help of other police officials. He further stated that the name and address of the accused were ascertained on the basis of suspicion. As the place was secluded, accordingly no independent witness was found though SI Om Chand deputed him to search for independent witnesses. He further stated that the name and address of the accused were ascertained on the basis of suspicion. As the place was secluded, accordingly no independent witness was found though SI Om Chand deputed him to search for independent witnesses. According to him, he searched for independent witnesses and reported back to the Investigating Officer after about 15 minutes that no independent witness could be found. This witness further stated that thereafter Investigating Officer associated him and PSI Anil Kumar as witnesses. He also stated that the accused was apprised about his legal right to be searched before Gazetted Officer or Magistrate. This witness further deposed that the Investigating Officer took search of the pithu bag which was carried by the accused and from inside the said pithu bag, a polythene packet was recovered and search of the said polythene packet revealed black coloured substance in the shape of chapattis which after burning and smelling was found to be Charas. He further stated that the Charas so recovered was weighed with the help of electronic scale and was found to be 895 grams. He also stated that the Charas so recovered was repacked in the same manner and was kept in the same rucksack bag which was thereafter kept in a cloth parcel which was sealed with six seal impressions of ‘A’. NCB form in triplicate was filled in the spot. Samples seal A were taken on cloth pieces. The case property was taken into possession vide seizure memo Ext. PW4/D. Seal after use was handed over to PSI Anil Kumar. Thereafter, Investigating Officer prepared Rukka and the same was handed over to him which was delivered by him at Police Station, Kullu, on the basis of which FIR Ext. PW4/F was registered. In his cross-examination, this witness deposed that they had left Police Station, Kullu, at 1.10 P.M. and had gone from Dhalpur to Gammon bridge in a small vehicle and from Gammon bridge they again took lift in a private vehicle and went up to Rogi Mour. He further stated that they had stopped at Gammon bridge for about 2-4 minutes. He admitted it to be correct that road from Gammon bridge to Rogi Mour there are frequent curves as well as steep height. He further stated that distance between Dhalpur to Rogi Mour was covered within one hour. He further stated that they had stopped at Gammon bridge for about 2-4 minutes. He admitted it to be correct that road from Gammon bridge to Rogi Mour there are frequent curves as well as steep height. He further stated that distance between Dhalpur to Rogi Mour was covered within one hour. He further stated in his cross-examination that distance from Rogi Mour to the spot was approximately 15 minutes. He also deposed that no Naka was laid at Burgani Nallah and they were going on foot. He further stated that they reached the spot at 2.30 P.M. He stated that there was a small bridge on Burgani Nallah and when they noticed accused, they had not crossed the bridge and the accused was noticed on the other side of the bridge. He further stated that the accused was nabbed at a distance of approximately 10-15 steps. He also stated in his cross-examination that he had gone to 2-3 houses, however, no one was present in the house. He admitted that October and November were apple season months. He further stated that he did not knew if apple orchardist used to reside on the side of the road in temporarily sheds/tents, he admitted that labour was employed in the apple orchards during the season. He also admitted that the spot was a katcha road and during apple season, fruits were transported in tractors, trolley and in other vehicles. He also admitted it to be correct that there were apple orchard on the side of the road from Gammon bridge upto Larikot. He further stated that he remained at the spot for about 2½ hours and did not notice any vehicle on that road. He denied the suggestion that there was frequent vehicular traffic during apple season. He admitted it to be correct that vegetables market was situated at Bandrol and Akhara Bazar and apple and other fruits were transported to these markets. He admitted it to be correct that village Larikot was very big village. He also stated that the parcel was prepared by the Investigating Officer on the spot with the help of scissor and was stitched with needle and thread. He further stated that the Investigating Officer was having approximately 3-4 meters cloth in his kit. In his cross-examination, he further stated that the Charas was weighed with the help of traditional scale. He also stated that the parcel was prepared by the Investigating Officer on the spot with the help of scissor and was stitched with needle and thread. He further stated that the Investigating Officer was having approximately 3-4 meters cloth in his kit. In his cross-examination, he further stated that the Charas was weighed with the help of traditional scale. This witness was confronted with the statement Ext. D-1 and he stated that it was incorrect that portion A to A of his statement was recorded by the Investigating Officer at his instance. He further stated that though his statement was recorded by the Investigating Officer as per his version, however, he had not stated that Rukka was handed over to him at 5.45 P.M. He admitted it to be correct that Kullu bus stand was away from the main road and was situated at distance of approximately 100-150 meters. He further stated that he left Police Station with case file at 6.55 P.M. and had gone to the bus stand by shortcut and thereafter he met police party who met him at the bus stand. 13. SI Om Chand entered the witness box as PW-5 and he deposed that he was posted as SI at Police Station Kullu from January, 2010 to April, 2012. He further stated that on 13.11.2010 he along with PSI Anil Kumar, HHC Tek Chand and HC Gian Chand were present at Burgani Nallah at around 2.30 P.M. for patrolling when they saw accused coming from Larikot to Burgani Nallah, who was carrying a black coloured rucksack. He further stated that the accused was stopped and inquired about the articles kept in the bag. He further stated that HC Gian Chand was deputed to bring independent witness, however, he came after 15 minutes and reported that no independent witness was available. This witness deposed that thereafter PSI Anil Kumar and HC Gian Chand were associated as witnesses and he carried out the search and seizure. This witness further deposed that the accused was apprised about his legal right to be searched before Gazetted Officer or Magistrate vide memo Ext. PW4/B. The bag carried by the accused was searched and a polythene packet was found from which Charas in the shape of chapatti and biscuit was recovered. This witness further deposed that the accused was apprised about his legal right to be searched before Gazetted Officer or Magistrate vide memo Ext. PW4/B. The bag carried by the accused was searched and a polythene packet was found from which Charas in the shape of chapatti and biscuit was recovered. This witness further stated that Charas so recovered was weighed with the help of weighing scale which was found to be 895 grams. He further deposed that the Charas so recovered was repacked in the same manner and was kept in a cloth parcel Ext. P-1 which was sealed with six seals of seal ‘A’. He further deposed that the sample seal was drawn on pieces of cloth one of which was Ext. PW4/C and the seal after use was handed over to PSI Anil Kumar. He also stated that parcel was taken into possession vide seizure memo Ext. PW4/D. NCB form in triplicate was prepared at the spot and thereafter he sent Rukka Ext. PW4/E through HC Gian Chand to the Police Station. He further stated that thereafter they came back along with the accused and case property to the Police Station. The case property was produced before SHO Ashok Kumar. On the next day, he prepared special report Ext. PW2/A. In his cross-examination, this witness deposed that documents Ext.PW4/A, Ext. PW4/B and Ext. PW4/D were written by PSI Anil Kumar on his directions. He further stated that the entire contents of these documents were written on the spot and no addition or alteration were made on these documents later on. He stated that they left Police Station at 1.10 P.M. and from Dhalpur they had taken lift in small vehicle and thereafter they went to left bank via link road which leads to Larikot as well as Bijli Mahadev. He further stated that they stopped at Dhalpur for about 10 minutes. He further stated that when they noticed accused they were on the bridge. He admitted it to be correct that the month of November was apple production month and lot of vehicles plied to carry apple and other fruits to vegetables market at Bandrol and other markets. He also admitted it to be correct that from Gammon bridge to Larikot there is apple belt and apple orchards exist near the road. He admitted it to be correct that the month of November was apple production month and lot of vehicles plied to carry apple and other fruits to vegetables market at Bandrol and other markets. He also admitted it to be correct that from Gammon bridge to Larikot there is apple belt and apple orchards exist near the road. He further stated that PW Gian Cahnd had disclosed that he had gone to 2-3 houses, however, no one came out from the houses. He further deposed that they remained at the spot for about three hours and PW-3 HHC Tek Chand remained at the spot throughout the proceedings. This witness further deposed that they left spot at 7.00 P.M. and reached the Police Station at 8.40 P.M. He further deposed that he came back upto Gammon bridge in a small vehicle and thereafter came upto bus stand Kullu in small vehicle where PW Gian Chand delivered case file and thereafter proceeded to the Police Station on foot. This witness further deposed that PW Gian Chand had called him and he had directed Gian Chand to remain present at bus stand and meet him there. He admitted it to be correct that on Ext. PW5/B there was cutting and time 5.30 had been made 6.30. He further stated that they after sending Rukka he had put seals on the parcel, prepared zimnis, prepared memo Ext. PW5/D and spot map. According to him, all these proceedings took about three hours. 14. SI Ashok Kumar entered the witness box as PW-6 and he stated that from the year 2010 up to December, 2011 he was posted at Police Station Kullu and on 13.11.2010 he was officiating as SHO Police Station Kullu. This witness further stated that on 13.11.2010 at around 6.15 P.M. HC Gian Chand brought a Rukka to him and on the basis of the same FIR Ext. PW4/F was recorded. He also deposed that on the same day at around 8.40 P.M. SI Om Chand produced case property before him and he resealed the same and deposited the case property along with relevant documents with MHC. 15. Before we discuss the statements of the prosecution witnesses, it is relevant to take note of search memo Ext. PW4/B. The first line of Ext. 15. Before we discuss the statements of the prosecution witnesses, it is relevant to take note of search memo Ext. PW4/B. The first line of Ext. PW4/B contains FIR No. 310 in red ink, whereas the rest of the contents are filled with blue ink but surprisingly it finds mentioned in the first line of the said search memo (i.e. even before the search of the accused or the rucksack being carried by him was conducted by the police) that FIR was being registered under Section 20 of the NDPS Act. Similarly, Ext. PW5/B which is arrest memo has been tampered with as there is over writing in the time of arrest in the same. There is no explanation given for this cutting by PW-5 Om Chand in his testimony. In fact, in his cross-examination, he admitted that there is cutting in Ext. PW5/B and the time was altered from 5.30 to 6.30 P.M. 16. Now coming to the statements of prosecution witnesses, there is contradiction in the testimonies of PW-4 and PW-5 with regard to the apprehension of the accused at the site. A perusal of the statement of the testimony of PW-4 HC Gian Chand demonstrates that according to him the police party had noticed accused coming from Larikot side towards Burgani Nallah and as soon as the accused saw the police party he turned back and tried to escape but SI Om Chand with the help of other police officials nabbed the accused. However, SI Om Chand has given a different version in this regard. SI Om Chand has not stated that when the accused saw the police party he turned back and tried to run away but was nabbed by him with the help of other police officials. According to him, when he was present at Burgani Nallah on the fateful day at around 2.30 P.M. on patrol and noticed the accused coming from Larikot to Burgani Nallah, the accused was stopped and inquiry was made from him about the articles kept in the bag. This contradiction in the testimony of PW-4 and PW-5 in the manner of apprehension of the accused has not been satisfactorily explained by the prosecution. It is apparent from the testimony of both PW-4 and PW-5 especially their cross-examinations that the spot where the accused was allegedly appended by the police party along with contraband was not at a secluded place. It is apparent from the testimony of both PW-4 and PW-5 especially their cross-examinations that the spot where the accused was allegedly appended by the police party along with contraband was not at a secluded place. In fact, it is evident from the statements of PW-4 and PW-5 that the month of November was peak apple season month. There were apple orachards on the both sides of the spot where the accused was apprehended and labour was putting up on both the sides of the road and there was lot of vehicular traffic transporting the apple produce as well as other vegetables to the markets. In these circumstances, the contention of the police that no independent witness could be associated in the search, recovery and seizure because the accused was apprehended at secluded place does not inspires confidence. It has come in the statement of PW-4 as well as PW-5 that the police party comprised of PW-4, PW-5, Anil Kumar as well as HHC Tek Chand, however, whereas Anil Kumar was not examined by the prosecution and given up as unnecessary. HHC Tek Chand who entered the witness box as PW-3 has not uttered a single word that either he was a part of the police party or that any recovery of contraband was made in his presence from the accused by SI Om Chand. This gains significance in view of the fact that it has come in the statement of PW-5 that PW-3 Tek Chand remained on the spot throughout the proceedings. Another major contradiction which has come in the testimony of the prosecution witnesses is that HC Gian Chand in his examination-in-chief has stated that the Charas so recovered from the accused was weighed with the help of electronic scale, however, in his cross-examination, he has deposed that the Charas so recovered was weighed with the help of traditional scale i.e. a small traditional scale. This contradiction in the statement of PW-4 has also not been satisfactorily explained by the prosecution. 17. Alterations/cuttings made in the documents allegedly prepared at the spot have also remained unexplained. Mentioning of the factum of the accused being booked for committing an offence under Section 20 of the NDPS Act in the search memo itself creates serious doubt about the fact that the said document was in fact prepared at the spot. 17. Alterations/cuttings made in the documents allegedly prepared at the spot have also remained unexplained. Mentioning of the factum of the accused being booked for committing an offence under Section 20 of the NDPS Act in the search memo itself creates serious doubt about the fact that the said document was in fact prepared at the spot. It is for the reason that it is not understood as to how even before the contraband was actually recovered from the rucksack being carried by the accused, it was assumed by the police party that the accused was guilty of commission of offence punishable under Section 20 of the NDPS Act. Another major contradiction in the testimony of PW-4 and PW-5 is with regard to their meeting at Kullu bus stand after PW-4 had allegedly taken Rukka to the Police Station on the basis of which FIR was lodged. PW-4 HC Gian Chand stated that he left Police Station with case file at 6.55 P.M. and had gone to the bus stand by shortcut where he met the police party. He further stated that he noticed the police party coming on foot to the bus stand. However, a perusal of the statement of PW-5 demonstrates that as per him police party left the spot at 7.00 P.M. and reached Police Station at 8.40 P.M. and thereafter, he came back up to Gammon bridge in a small vehicle and again came to bus stand Kullu in small vehicle where PW Gian Chand delivered case file and thereafter he reached Police Station on foot. 18. The above mentioned contradictions in the testimony of PW-4 and PW-5 as to how the case file was delivered by Gian Chand to PW-5 also create a serious doubt about the veracity of the case of the prosecution. Incidentally a perusal of Ext. 18. The above mentioned contradictions in the testimony of PW-4 and PW-5 as to how the case file was delivered by Gian Chand to PW-5 also create a serious doubt about the veracity of the case of the prosecution. Incidentally a perusal of Ext. D-1 which is supplementary statement of PW-4 Gian Chand recorded under Section 161 Cr.P.C. demonstrates that it is recorded therein that the Rukka was handed over to him for being delivered to the Police Station at 5.45 P.M., whereas in the witness box this witness has deposed that he came with Rukka at about 4.45 P.M. Whereas PW-4 has stated that the parcel was prepared by the Investigating Officer on the spot with the help of scissor and was stitched with needle and thread, PW-5 in his deposition has stated that the parcel was opened from one side and that side was stitched on the spot. He has stated that he had stitched open side of the parcel. 19. The above discussion makes it amply clear that the inconsistencies and discrepancies coupled with the contradictions in the statements of the prosecution witnesses shroud the case of the prosecution with suspicion and it cannot be said that on the basis of the testimony of prosecution witnesses that the prosecution had proved its case against the accused beyond reasonable doubt. 20. At the cost of repetition, we state that the more we go into the depositions of prosecution witnesses, more we are convinced that the statements of the prosecution witnesses are neither cogent nor the same are reliable or trustworthy. Their testimonies are full of contradictions and inconsistencies, which do not inspire confidence to be made basis for convicting the accused. 21. A perusal of the judgment passed by learned trial Court demonstrates that all these aspects of the matter have been dealt in detail by learned trial Court and after a careful appreciation of the evidence on record learned trial Court returned the findings of acquittal in favour of the accused. Learned trial Court took note of the fact that since in the present case no percentage of tetrahydrocannabinol was mentioned, hence the contraband so recovered could not be said to be Charas as per report Ext. PW6/D. While coming to the said conclusion, learned trial Court had relied upon a judgment of this Court passed in Sunil Vs. State of H.P., 2010 (1) Shim.LC 192 . PW6/D. While coming to the said conclusion, learned trial Court had relied upon a judgment of this Court passed in Sunil Vs. State of H.P., 2010 (1) Shim.LC 192 . Be that as it may, even without going into this aspect of the matter it can be safely concluded that even otherwise it cannot be said that the prosecution was able to prove beyond reasonable doubt that any contraband in fact was recovered from the exclusive and conscious possession of the accused in the mode and manner in which the prosecution wants this Court to believe. Therefore, while upholding the findings of learned trial Court that the prosecution was not able to prove that any contraband was recovered from the exclusive and conscious possession of the accused beyond reasonable doubt on 13.11.2010 at 2.30 P.M. at Burgani Nallah, the present appeal is dismissed being devoid of any merit. Bail bonds, if any, furnished by the accused are discharged.