JUDGMENT : Vivek Singh Thakur, J. 1. Present appeal has been filed by State of Himachal Pradesh against acquittal of respondent by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. vide judgment dated 04.06.2011 passed in Sessions trial No. 7/3 of 2010 in case FIR No. 139/2009 Whether reporters of Local Papers may be allowed to see the judgment? registered in Police Station Bharari, District Bilaspur, H.P. under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'NDPS Act') and under Section 18-A of Drugs & Cosmetic Act, 1940 (hereinafter referred as 'D & C Act' ). 2. Prosecution case is that on 10.12.2009 police party headed by P.W.10 SI Prem Singh consisting of PW-5 HHC Dhani Ram, C. Shyam Lal and HHG Kamlesh during patrolling duty in official vehicle bearing No. HP-07-0371 being driven by Constable Vikram Ram reached Ladrour Bazar at 2.00 PM. At that time, respondent was present in the first floor of the building in front of his mobile repair shop and it was noticed that on seeing police party respondent suddenly turned back and on suspicion police party went to his shop and inquired him. After 10-15 minutes PW-5 HHC Dhani Ram was sent by Investigating Officer for calling independent witnesses who returned alongwith PW-1 Hemant Kumar and PW-6 Madan Lal. In presence of independent witnesses, personal search of respondent was conducted after informing him his right to have option to choose authority for his personal search under Section 50 of NDPS Act as he opted to give his search to police party in presence of independent witnesses. During his search, besides recovery of charas from his socks, 49 capsules were also recovered from left pocket of his jacket. Contraband recovered from socks was weighed on weighing machine brought by PW-6 Madan Lal and the said contraband was found to be 108 gms. Recovered charas and capsules were taken in possession and were seized in sealed parcel. Sample seal impression was taken on a piece of cloth and seal was handed over to PW-6 Madan Lal after taking impression of seal on NCB forms filled in triplicate. 'Rukka' Ex. PW-4/A was prepared and sent to Police Station through PW-4 HC Shyam Lal, on the basis of which FIR Ex. PW-11/A was lodged and file was handed over to PW-10 Investigating Officer SI Prem Singh through C. Shyam Lal. Respondent was arrested. 'Rukka' Ex. PW-4/A was prepared and sent to Police Station through PW-4 HC Shyam Lal, on the basis of which FIR Ex. PW-11/A was lodged and file was handed over to PW-10 Investigating Officer SI Prem Singh through C. Shyam Lal. Respondent was arrested. Statements of witnesses were recorded. During investigation, opinion of Drug Inspector was also sought regarding 49 capsules of SPM and PRS who vide letter Ex. PW-7/B opined that recovered capsules Ex. PW-1/B were to be manufactured under valid drug licence as per schedule 'H' of D & C Act 1940 and Rules 1945 made thereunder and stocking or exhibiting these capsules for sale without having licence is contravention of Section 18 (c) and is punishable under Section 27 (b) (ii) of D & C Act. Further possession of such schedule 'H' drugs without having any purchase invoice and non-disclosure of source acquisition of the said drugs is contravention of Section 18-A and is punishable under Section 28 of D & C Act. As per chemical analysis, Ex. PW-10/F recovered contraband was found to be 'charas' and 'capsules' were found to be 'Proposyphene Napsylate Capsules' which was a Drug included in Schedule 'H' of D & C Act, 1940. 3. Challan was presented in the Court and respondent was charge-sheeted under Section 20 of NDPS Act and under Section 18 (A) of D & C Act. Respondent pleaded not guilty and claimed his innocence. On conclusion of trial respondent was acquitted. 4. We have heard learned counsel for the parties and have also gone through record. 5. As per prosecution story, there were 7 persons including independent witnesses on the spot at the time of recovery. Out of 7 persons, five persons examined as prosecution witnesses are PW-1 Hemant Kumar, PW-4 HC Shyam Lal, PW-5 HHC Dhani Ram, PW-6 Madan Lal and PW-10 SI Prem Singh, out of which PW-1 Hemant Kumar and PW-6 Madan Lal are independent witnesses associated by police. Both of them had not supported prosecution case rather they specifically stated that recovered contraband and capsules were lying on the table outside the shop of respondent and police had informed that those were recovered from respondent. Both of them had admitted weighing of charas, seizure of recovered contraband and capsules and signing memo related thereto. 6. Both of them had not supported prosecution case rather they specifically stated that recovered contraband and capsules were lying on the table outside the shop of respondent and police had informed that those were recovered from respondent. Both of them had admitted weighing of charas, seizure of recovered contraband and capsules and signing memo related thereto. 6. PW-4 Constable Shyam Lal though was present with police party, however, he specifically stated that since he was standing out side the shop therefore, respondent was not searched in his presence and charas was not recovered from respondent in his presence. In examination-in-chief also he had deposed only about taking 'Rukka' to Police Station and returning on the spot after registration of FIR alongwith case file. 7. In examination-in-chief, PW-5 HHC Dhani Ram had corroborated prosecution story, however in cross examination, firstly he stated that search of respondent was conducted inside the shop, but in next line he stated that he did not remember whether respondent was beyond the counter, middle of the counter or in between the counter or in the door of the shop. He stated that respondent was subsequently called outside the counter to take personal search of police and he had searched police party outside the counter. He stated that when police went upstairs to the shop of respondent, they were not accompanied by witnesses and they remained outside the shop for five to seven minutes. Thereafter he sent to call witnesses and till arrival of witnesses within 15 minutes, police party was standing outside the shop of respondent. He further stated that after 15 minutes, police entered in the shop of respondent meaning thereby immediately after arrival of witnesses police party entered the shop of respondent, then there was no occasion to call respondent outside the shop to conduct search of witnesses nor it was possible to take consent as portrayed by Investigating Officer of respondent under Section 50 of the NDPS Act. It is also unbelievable as well as unnatural that on noticing respondent, police party immediately went upstairs and stayed there idle for 5 to 10 minutes. 8. It is also unbelievable as well as unnatural that on noticing respondent, police party immediately went upstairs and stayed there idle for 5 to 10 minutes. 8. It has also come in statement of PW-5 Dhani Ram, PW-6 Madan Lal and PW-10 ASI Prem Singh that shop of respondent was in the first floor and there were number of shops on the ground floor as well as first floor of the building and some shops in that building were also open. Admittedly, PW-1 Hemant Kumar and PW-6 Madan Lal are also shopkeepers in Ladrour Bazar who are running their shop at a considerable distance from the shop of respondent. There is nothing on record that police had made any endeavour to associate any independent witnesses available on the spot and reasons for not associating witnesses from nearby shops but picking witnesses of choice also casts doubt on fair investigation. Allegation of association of persons of choice as independent witnesses is also fortified from the fact that during the course of examination by Public Prosecutor these witnesses had admitted signing of memos without going through the contents of the same on the basis of information given by police party that recovered contraband was found in possession of the respondent. Such behaviour was possible only if the independent witnesses were under influence of police or were having cordial relation with police party. 9. PW-6 stated that he was called by the police at 3.00 PM. PW-1 stated that he was called on the spot at 4.00/4.30 PM whereas it is evident from NCB form Ex. PW-10/B that recovered contraband and capsules were seized at 2.50 PM whereas 'Rukka' was handed over to PW-4 at 3.30 PM. PW-1 and PW-6 are the witnesses to the recovery as well as seizure of contraband and it is not possible for both of them to witness recovery and seizure conducted prior to 2.50 PM on arriving on spot after 3.00 PM 10. As per prosecution, recovered contraband was weighed in the weighing machine brought by PW-6 Madan Lal whereas PW-6 Madan Lal had stated that he had not brought any weighing machine on the spot. 11. There is nothing in rapat Ex. PW-11/C that the police party had left the Police Station alongwith kit. As per prosecution, recovered contraband was weighed in the weighing machine brought by PW-6 Madan Lal whereas PW-6 Madan Lal had stated that he had not brought any weighing machine on the spot. 11. There is nothing in rapat Ex. PW-11/C that the police party had left the Police Station alongwith kit. There is nothing on record to show that wherefrom the cloth for parcels and taking seal sample impression was brought and also from where other instruments for sealing of the recovered contraband were procured. 12. Independent witnesses have not supported prosecution story. Police official PW-4 was not witness to the recovery. In such eventuality, examining PW-6 Madan Lal only and withholding another official witness HHG Kamlesh from examining in the court is also fatal to the prosecution as in present case when independent witnesses had turned hostile and one more official witness present on the spot was available to be examined, the said witness should have been examined for corroboration. 13. Charge under Section 18 of the D & C Act was also framed against respondent. Section 32 of D & C Act reads as under:- "32. Cognizance of offences: (1) No prosecution under this Chapter shall be instituted except by: (a) an Inspector; or (b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or (c) the person aggrieved; or (d) a recognised consumer association whether such person is a member of that association or not. (2) Save as otherwise provided in this Act, no court inferior to that of a Court of Session shall try an offence punishable under this Chapter. (3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter." 14. It has also been specifically mentioned in letter Ex. PW-7/B received from Drug Inspector that only Drug Inspector can be complained under D & C Act and investigation can be done by police personal in coordination with Drug Inspector concerned. It has also been specifically mentioned in letter Ex. PW-7/B received from Drug Inspector that only Drug Inspector can be complained under D & C Act and investigation can be done by police personal in coordination with Drug Inspector concerned. As per Section 32 of the D & C Act, prosecution can be instituted by an Inspector or by any Gazetted Officer of Central Government or State Government authorized in writing in this behalf by the Government concerned by general or special order or persons aggrieved or by recognized Consumer Association. In present case, prosecution was not instituted either by Inspector, person aggrieved or recognized association or by Gazetted Officer of the Government. Authorization, if any, on behalf of the State Government was also not placed on record authorizing the Investigating Officer to institute prosecution under D & C Act, therefore, challan against respondent under D & C Act was neither legal nor valid. 15. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence. 16. For the reasons stated hereinabove, it would be evident that in the present case the evidence of the official witnesses is not trustworthy, credible and sufficient to prove guilt of the respondent and sufficient so as to convict the respondent. 17. Respondent has been acquitted by the trial court. From perusal and scrutiny of evidence, it cannot be said that the learned trial court has not appreciated the evidence correctly and completely and acquittal of the respondent has resulted into travesty of justice or has caused miscarriage of justice. 18. Therefore present appeal, devoid of any merit, is dismissed, so also pending applications, if any. Bail bonds, and surety if any, furnished by and for the respondent are discharged. Records of the Court below be immediately sent back.