JUDGMENT : Rajiv Sharma, J. The instant appeal has been instituted against Judgment/Order dated 12.5.2015/13.5.2015 rendered by learned Special Judge, Kullu, District Kullu, Himachal Pradesh in S.T. No.31 of 2014, whereby appellant-accused, hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.30,000/- and, in default of payment of fine, to further undergo rigorous imprisonment for two months. 2. Case of the prosecution, in a nutshell, is that on 12.1.2014, a police party headed by ASI Kishan Chand of PS Bhunter, was on patrolling at forest check post, Bajaura. At 8.10 pm, Haryana roadways bus bearing registration No. HR 55P-1040 came from Manali side. It was going to Delhi. The bus was stopped and they went inside the bus for checking. When they reached seat No. 35, person sitting on that seat got perplexed. His identity was ascertained. Accused was carrying one black coloured bag on his lap. On suspicion, accused was got down from the bus and he was taken to forest check post. IO ASI Kishan Chand gave his personal search. Driver of the bus Rajinder and Conductor Jai Dev were also associated and in their presence IO had given his personal search to the accused. Then bag of the accused was searched from which two packets wrapped in Khaki cello tape were recovered. Both the packets were opened and black coloured stick shaped substance was recovered It was found to be charas. It weighed 450 grams. A sample of 20 grams charas was separated and remaining 430 grams charas was filled in the same cello tape packets and packets were put in the bag and bag was put in cloth parcel. It was sealed with 6 seals of ‘M’. IO also filled in NCB form in triplicate and sent intimation to the Police Station, Bhunter for registration of FIR through ASI Yashpal. FIR was registered. Case property was resealed by SHO Police Station, Bhunter and deposited with MHC. Contraband was sent for examination to FSL Junga. Investigation was completed and Challan was put up in the Court after completing all the codal formalities. 3. FIR was registered. Case property was resealed by SHO Police Station, Bhunter and deposited with MHC. Contraband was sent for examination to FSL Junga. Investigation was completed and Challan was put up in the Court after completing all the codal formalities. 3. Prosecution has examined as many as 10 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He has admitted that he was sitting on seat No. 35, however, he denied that he was carrying any bag with him. According to him, bag was lying on the rack of the bus just above seat No. 35. Accused was convicted by the learned trial Court. Hence, this appeal. 4. Mr. Vikas Rathore, Advocate, has vehemently argued that the prosecution has failed to prove case against the accused. 5. Mr. Parmod Thakur, Additional Advocate General, has supported the judgment/order of conviction dated 12.5.2015/13.5.2015. 6. I have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 Purender Kumar deposed that on 12.1.2014, he alongwith ASI Kishan Chand and other police officials was present at Bajaura Check post. At 8.10 pm, Haryana roadways bus HR 55P-1040 came from Manali side which was going to Delhi. The bus was stopped and they went inside the bus for checking. When they reached seat No. 35, person sitting on that seat got perplexed. His identity was ascertained. Accused was carrying one black coloured bag on his lap. On suspicion, accused was got down from the bus and he was taken to forest check post. IO ASI Kishan Chand gave his personal search. Driver of the bus Rajinder and Conductor Jai Dev were also associated and in their presence IO had given his personal search to the accused. Then bag of the accused was searched from which two packets wrapped in Khaki cello tape were recovered. Both the packets were opened and black coloured stick shaped substance was recovered. It was found to be charas. It weighed 450 grams. 20 grams charas was separated and remaining 430 grams charas was filled in the same cello tape packets and packets were put in the bag and bag was put in cloth parcel. Words ‘Fast Track’ were written on the black coloured bag. In the cross-examination, he has admitted that they had taken lift in a vehicle. It weighed 450 grams. 20 grams charas was separated and remaining 430 grams charas was filled in the same cello tape packets and packets were put in the bag and bag was put in cloth parcel. Words ‘Fast Track’ were written on the black coloured bag. In the cross-examination, he has admitted that they had taken lift in a vehicle. He did not remember the number of the vehicle. He also did not remember the name of the driver. He did not remember that whether the front and back side seats of seat No. 35, were occupied or not. IO has not asked any passenger to become witness. In all, 40-42 passengers were in the bus. After giving search, IO had conducted personal search of the accused. Volunteered that personal search of accused was carried out after search of the bag. It was conducted before the arrest of the accused. Personal search of accused was carried out after 10-15 minutes of search of the bag. 8. PW-2 ASI Yashpal deposed the manner in which accused was apprehended and search, sealing and seizure proceedings were completed at the spot. Rukka was handed over to him by IO. It was taken to Police Station Bhunter. In the cross-examination, he has admitted that other vehicles were also checked. He also admitted that the IO gave personal search to the accused and thereafter search of accused was conducted by the IO. Volunteered that IO checked the bag of accused and thereafter, personal search of accused was conducted. 9. PW-3 HC Gian Chand deposed that ASI Rajesh Kumar had deposited on 12.1.2014, two sealed parcel sealed with six seals of ‘M’ and three seals of ‘T’ along with NCB I form in triplicate, copy of seizure memo, copy of FIR, sample seals of ‘M’ and ‘T’. He made entry of said case property in the register vide abstract Ext. PW-3/A. He sent the bigger parcel to FSL Junga through Constable Umesh. 10. PW-4 Constable Umesh deposed that MHC Gian Chand has handed over to him one parcel sealed with six seals of ‘M’ and three seals of ‘T’ alongwith NCB forms etc. to be deposited with Forensic Science Laboratory Junga. He deposited the same with FSL Junga. 11. PW-3/A. He sent the bigger parcel to FSL Junga through Constable Umesh. 10. PW-4 Constable Umesh deposed that MHC Gian Chand has handed over to him one parcel sealed with six seals of ‘M’ and three seals of ‘T’ alongwith NCB forms etc. to be deposited with Forensic Science Laboratory Junga. He deposited the same with FSL Junga. 11. PW-6 ASI Rajesh Kumar, deposed that at 11.35 pm, ASI Kishan Chand produced one bag, one small sealed parcel sealed with 6 seals of ‘M’ each alongwith sample seal, copy of FIR, NCB I forms and other relevant documents. Both the aforesaid parcels were resealed by him with three seals of ‘T’ and he filled in relevant columns of NCB I forms, one of which is Ext. PW-3/C. 12. PW-7 Rajinder Kumar is the driver of the Bus. According to him, bus was stopped by the police personnel at the barrier. Police entered the bus for checking whereas he and conductor got down from the bus. Police personnel checked the bus and after about 15 minutes they came down with a bag and the accused. He did not identify the accused. He deposed that the police did not check the bag in their presence and nothing was recovered from the bag in their presence. He was declared hostile and cross-examined by the learned Public Prosecutor. According to him, he has signed blank papers on that day. He denied that bus was searched by the police personnel in his presence and in presence of the conductor. He denied that in their presence accused was found sitting on seat No. 35 in the bus and he was carrying black coloured bag, on which ‘fast track’ was written, on his legs. He denied the suggestion that before checking the bus, police personnel gave their personal search to the accused and nothing incriminating was found from the police personnel. He denied that in their presence, bag of accused was searched and from it two packets, which were taped, were recovered and those were found containing Charas, which weighed 450 grams. He denied that in their presence, one sample of 20 grams was separately packed and sealed in a parcel and sealed with six seals of ‘M’. He admitted that accused handed over a ticket of Rs.340/- to the police. He admitted that contraband was taken into possession by the police. He denied that in their presence, one sample of 20 grams was separately packed and sealed in a parcel and sealed with six seals of ‘M’. He admitted that accused handed over a ticket of Rs.340/- to the police. He admitted that contraband was taken into possession by the police. In the cross-examination by the learned defence counsel, he has admitted that police told that bag was recovered by them from the rack of the bus just above where the accused was sitting. Accused was saying that the bag did not belong to him. Accused was taken by the police to the check post. PW-7 Rajinder admitted his signatures on memo Ext. PW-1/C, Ext. PW- 1/B and Ext. PW-1/A. 13. PW-8 Jai Dev deposed that the police stopped the bus for checking. He and Driver got down from the bus. Police asked the passengers to get their luggage checked. After some time, police got down with the bag. Bag was not checked in their presence. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that he and driver were associated in the investigation and in their presence, bus was checked and accused was found sitting on seat No. 35 with bag on his legs. He denied that the accused was got down from the bus in their presence and taken to check post. He denied that carry bag of the accused was checked and from it two packets which were taped, containing charas were recovered and on weighing, charas was found to be 450 grams. He also denied that in his presence, police separated sample of 20 grams from the contraband, packed it in a parcel and sealed with six seals of ‘M’ and remaining charas was put back in the same bag and it was sealed with 6 seals of ‘M’. He denied that he signed the documents after going through them. He denied that he refused to sign the documents. He has identified the signatures on Ext. P2 and Ext. P4. 14. PW-10 ASI Kishan Chand deposed the manner in which accused was apprehended. Accused was sitting at Seat No. 35. They found that the person sitting on that seat was terrified. He was having a Pithu bag on his shoulder on which ‘Fast Track’ in red thread was inscribed. On inquiry, he disclosed his identity. Thereafter, bag was opened. P4. 14. PW-10 ASI Kishan Chand deposed the manner in which accused was apprehended. Accused was sitting at Seat No. 35. They found that the person sitting on that seat was terrified. He was having a Pithu bag on his shoulder on which ‘Fast Track’ in red thread was inscribed. On inquiry, he disclosed his identity. Thereafter, bag was opened. Contraband was recovered. Sealing proceedings were completed. He prepared Rukka Ext. PW-10/A. It was sent through ASI Yashpal to Police Station, Bhunter. FIR was registered. In the cross-examination, he has admitted that he had checked 7-8 passengers before reaching seat No. 35. Seat No. 35 was on the driver side of the bus. He did not remember whether the passengers were sitting on front and back side of seat No. 35. Bag was kept by the accused on his legs. Passengers were not associated in the investigation though they had seen the accused being taken out of the bus. He had conducted the personal search of the accused after arresting him and not before that. There was nothing in the Bag Ext. P2, except Charas. 15. Case of the prosecution has not been supported by PW-7 Rajinder Kumar and PW-8 Jai Dev. PW-7 Rajinder Kumar has denied the suggestion that the police in his presence and in the presence of the Conductor checked the bus. He denied that in his presence, accused was found sitting on seat No. 35. He also denied that in their presence bag of the accused was checked and from it two packets containing contraband were recovered. Though, he has admitted his signature on Ext. PW-1/C, PW-1/B and PW-1/A. Similarly, PW-8 has denied that the bag was searched in their presence and contraband was recovered from it. He has admitted his signatures on Ext. P2 and Ext. P4. 16. Case of the prosecution is that the accused was sitting on Seat No. 35 and he kept the black coloured bag on his lap. Prosecution has not examined any of the passengers from the bus though the bus was carrying 40-42 passengers. PW-2 ASI Yashpal has deposed that the accused had kept the bag on his lap. However, PW-10 ASI Kishan Chand deposed that the accused was carrying rucksack on his shoulder, on which ‘Fast Track’ was inscribed. Prosecution has not examined any of the passengers from the bus though the bus was carrying 40-42 passengers. PW-2 ASI Yashpal has deposed that the accused had kept the bag on his lap. However, PW-10 ASI Kishan Chand deposed that the accused was carrying rucksack on his shoulder, on which ‘Fast Track’ was inscribed. There is major contradiction in the statements of PW-2 ASI Yashpal and PW-10 Kishan Chand, whether the accused was carrying bag on his lap or was carrying it on his shoulder. 17. Case property in this case was produced while recording statement of PW-10 Kishan Chand. Who has brought the case property from Malkhana to the Court has not been examined. Entry in the Malkhana register to the effect that who has taken the property to the Court, is necessary as per Punjab Police Rules, 1934. 18. It is necessary that as and when case property is taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when case property is redeposited in the Malkhana. Case property in NDPS cases is required to be kept in safe custody from the date of seizure till its production in the Court. It is also necessary that when case property is taken out from Malkhana, DDR is made and also at the time when case property is redeposited in the Malkhana. Thus, it casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case. The prosecution has failed to prove case against the accused. 19. Accordingly, the present appeal is allowed. Judgment/Order dated 12.5.2015/13.5.2015 rendered by learned Special Judge, Kullu, District Kullu, Himachal Pradesh in S.T. No. 31 of 2014 is set aside. Accused is acquitted of the offence under Section 20 of the Act. He is ordered to be released, if not required by the police in any other case. Fine amount, if any, paid by the accused, be refunded to him. The Registry is directed to prepare and send the release warrant of the accused to the Superintendent of Jail concerned forthwith.