JUDGMENT : P.S.Rana, J. 1. Present appeal is filed against the judgment of acquittal dated 24.10.2008 passed by learned Special Judge Kullu in sessions trial No. 18 of 2007 title State of HP v. Ved Ram. Brief facts of the prosecution case: 2. Brief facts of the case as alleged by prosecution are that on 21.11.2006 at 6.30 PM police officials were present at place Som Ban on bridge in District Kullu HP. It is alleged by prosecution that accused came from Batahar side and when he saw police officials he tried to run away but he was caught. It is further alleged by prosecution that accused was carrying bag upon his back portion of body and accused revealed his name as Ved Ram son of Tikam Ram. It is further alleged by prosecution that on suspicion bag of accused was searched and 1 Kg charas was found. It is further alleged by prosecution that two samples of charas 25 grams each were separated and sealed with seal impression 'T' and remaining bulk charas was placed in the same bag. It is further alleged by prosecution that thereafter NCB forms in triplicate filled and site plan prepared and statement of witnesses recorded. It is further alleged by prosecution that on the basis of rukka FIR was registered. It is further alleged by prosecution that case property was re-sealed by station house officer and special report was handed over to lady constable Meena Kumari with direction to hand over the same to Dy. SP Kuldip Rana. It is further alleged by prosecution that entry in relevant register was recorded. It is further alleged by prosecution that inventory list was prepared. It is further alleged by prosecution that case property and parcels were deposited in malkhana. It is further alleged by prosecution that thereafter one sample parcel was sent to CFSL Chandigarh along with sample seals through constable Mahinder Kumar who obtained receipt and handed over the same to MHC. It is further alleged by prosecution that as per chemical analyst report sample was found to be charas. Learned trial Court framed charges against accused on 16.5.2008 under Sections 20 of Narcotic Drugs and Psychotropic Substances Act 1985. Accused did not plead guilty claimed trial. 3. Prosecution examined nine witnesses and also tendered documentary evidence. Learned trial court acquitted accused. 4. Learned trial Court framed charges against accused on 16.5.2008 under Sections 20 of Narcotic Drugs and Psychotropic Substances Act 1985. Accused did not plead guilty claimed trial. 3. Prosecution examined nine witnesses and also tendered documentary evidence. Learned trial court acquitted accused. 4. Feeling aggrieved against judgment passed by learned Trial Court State filed present appeal. 5. We have heard learned Additional Advocate General appearing on behalf of State and learned Advocate appearing on behalf of accused and also gone through entire record carefully. 6. Following points arise for determination in present appeal: 1. Whether appeal filed by State is liable to be accepted as mentioned in memorandum of grounds of appeal and whether judgment of learned trial Court is perverse and based upon non-appreciation of evidence properly as alleged?. 2. Final order. 7. Finding on point No.1 with reasons: 7.1 PW1 constable Subhash Sharma has stated that he along with constables Deepak Kumar, Roop Singh and Lal Singh were on patrolling duty at Som Van at about 6.30 PM. He has stated that they noticed accused coming from Batahar side with bag on his back and when accused saw police officials he returned and tried to run away from the spot. He has stated that accused was over powered by SI Ram Singh. He has stated that accused tried to throw bag but bag was caught during the process of throwing. He has stated that thereafter bag was checked and inside the bag charas was found. He has stated that accused disclosed his name as Ved Ram. He has stated that thereafter he sent SI Lal Singh to bring local witness. He has stated that SI Lal Singh told him that no local witness was found due to late hours and darkness. He has stated that thereafter he and constable Deepak Kumar were associated as witnesses in the proceedings. He has stated that two samples of 25 grams each took out and remaining charas was sealed in parcel. He has stated that NCB forms in triplicate filled and seal impressions obtained upon plain cloth. He has stated that sample of seal is Ext PW1/B. He has stated that accused was informed about ground of arrest and SI Lal Singh gave rukka to constable Deepak Kumar. He has stated that site plan was prepared. He has stated that sample of parcel is Ext P1 and bulk parcel is Ext P2. He has stated that sample of seal is Ext PW1/B. He has stated that accused was informed about ground of arrest and SI Lal Singh gave rukka to constable Deepak Kumar. He has stated that site plan was prepared. He has stated that sample of parcel is Ext P1 and bulk parcel is Ext P2. He has stated that charas is the same which was found from possession of accused. He has denied suggestion that no seal was handed over to him. He has denied suggestion that accused was not apprehended. He has denied suggestion that bag did not belong to accused. 7.2 PW2 constable Deepak Kumar has stated that on dated 21.11.2006 he along with constable Subhash Chand and Room Singh were present at Som Van at about 6.30 PM. He has stated that accused came from Batahar side carrying a bag on his back and when accused saw police officials he tried to throw bag but accused was over powered. He has stated that inside the bag charas was found. He has stated that constable Subhash Chand was sent in search of independent witness but no local witness was available. He has stated that thereafter he and constable Subhash Chand were associated as eye witness in the proceedings. He has stated that charas was weighed and it was found 1 Kg. He has stated that two samples of charas 25 grams each took out separately and remaining charas placed in the same bag and same was sealed in cloth parcel. He has stated that NCB forms in triplicate were filled. He has stated that NCB forms filled by investigating officer. He has denied suggestion that false case has been filed against accused simply on suspicion. He has denied suggestion that unclaimed bag was found. He has denied suggestion that no charas was found from possession of accused. He has denied suggestion that all documents have been tampered. 7.3 PW3 Lal Singh has stated that he was posted as sub inspector. He has stated that he was present at spot along with other police officials. He has stated that at about 6.30 PM one person came from Batahar side and when accused saw police officials he tried to run away. He has stated that thereafter accused was over powered. He has stated that accused was carrying a bag on back portion of his body. He has stated that at about 6.30 PM one person came from Batahar side and when accused saw police officials he tried to run away. He has stated that thereafter accused was over powered. He has stated that accused was carrying a bag on back portion of his body. He has stated that accused disclosed his name Ved Ram. He has stated that accused is the same person who was caught at the spot. He has stated that accused tried to throw away bag but he was over powered. He has stated that thereafter constable Subhash Chand was sent in search of local witness who came after some time and told him that no local witness was available. He has stated that charas was weighed and it was found 1 Kg. He has stated that two samples of charas of 25 grams each took for sample and remaining charas sealed in a bag. He has stated that NCB forms in triplicate filled. He has stated that accused was apprised about his ground of arrest. He has stated that NCB forms filled by station house officer and case property was resealed. He has stated that thereafter special report was prepared. He has stated that case property Ext P3 to Ext P5 are the same which recovered from accused. He has denied suggestion that police officials were not present at the spot. He has denied suggestion that accused was not caught at the spot. He has denied suggestion that charas was not recovered from accused. He has denied suggestion that charas was not sealed and seized. He has denied suggestion that false case has been planted against accused. He has denied suggestion that spot map is false. 7.4. PW4 Satish Kumar has stated that he brought rapat rojnamcha register and abstract Ext PW4/A is correct as per original record. He has denied suggestion that entry was fabricated later on. 7.5. PW5 constable Meena Kumari has stated that on dated 22.11.2006 SI Lal Singh handed over to her special report Ext PW3/D which she handed over the same to Dy.SP Kuldip Rana at 3 PM. 7.6. PW6 ASI Naresh Sharma has stated that he was posted as investigating officer in police station Manali in the year 2006. He has stated that on 21.11.2006 he was working as MHC. 7.6. PW6 ASI Naresh Sharma has stated that he was posted as investigating officer in police station Manali in the year 2006. He has stated that on 21.11.2006 he was working as MHC. He has stated that on 21.11.2006 SHO Sanjay Kumar handed over to him three packets of charas with seal, NCB forms and copy of recovery memo for depositing the same in malkhana. He has stated that he entered case property in malkhana register. He has stated that copy of malkhana register is Ext PW6/A. He has stated that on 28.11.2006 one sample of charas and relevant documents were sent to CFSL Chandigarh vide RC No. 177 of 2006 through constable Mahinder. He has stated that copy of RC is Ext PW6/B. He has stated that copy of receipt is Ext PW6/C. He has denied suggestion that sample was tampered. 7.7. PW7 constable Mahinder Pal has stated that he was posted in police station Manali w.e.f. 2006 to 2008. He has stated that on 28.11.2006 MHC Naresh Chand handed over to him one packet of charas, NCB forms in triplicate and relevant documents vide RC No. 177 of 2006 with direction to deposit the same at CFSL Chandigarh. He has stated that he deposited articles in the office of CFSL Chandigarh on 29.11.2006 and thereafter handed over receipt on his return. He has denied suggestion that he did not take any sample. He has denied suggestion that road certificate was tampered with. 7.8 PW8 Sanjay Sharma has stated that he was posted as SHO police station Manali since 3.9.2006. He has stated that he received rukka Ext PW3/A. He has stated that on the basis of rukka he registered FIR Ext PW8/A and sent case file to investigating officer. He has stated that at the same night SI Lal Singh produced three parcels before him along with NCB forms in triplicate. He has stated that he filled column No. 9 to 11 of NCB forms and re-sealed parcels with three seals of 'H' and handed over case property to MHC Naresh Kumar. He has stated that on receipt of chemical report Ext PX he prepared challan. He has stated that case property was produced before Judicial Magistrate Ist Class Manali. He has denied suggestion that case property was not produced before him. He has denied suggestion that case property was not re-sealed. He has stated that on receipt of chemical report Ext PX he prepared challan. He has stated that case property was produced before Judicial Magistrate Ist Class Manali. He has denied suggestion that case property was not produced before him. He has denied suggestion that case property was not re-sealed. He has denied suggestion that case property was tampered. He has stated that he prepared inventory list which was attached with case property. He has denied suggestion that no case property was produced before Judicial Magistrate Ist Class Manali. 7.9. PW9 constable Rajiv Kumar has stated that he brought original special report and register. He has stated that on 22.11.2006 original special report Ext PW3/A was handed over to him and he made endorsement and entered it in special report register. He has stated that copy of special report is Ext PW9/A. 8. Following documentaries evidence produced by prosecution.(1) Ext PW1/A is the seizure memo of 1 Kg contraband on suspicion (2) Ext PW1/B is seal impression upon plain cloth.(3) Ext PW1/C is memo of arrest (4) Ext PW3/A is rukka (5) Ext PW3/B is site plan (6) Ext PW3/C is personal search of accused.(7) Ext PW3/D is special report (8) Ext PW4/A is rapat dated 21.11.2006 (9) Ext PW6/A is extract of malkhana register (10) Ext PW6/B is road certificate (11) Ext PW8/A is FIR No.292 dated 21.11.2006 registered under section 20 of NDPS Act.(12) Ext PW8/B is seal impression upon plain cloth(13) Ext PW8/C is NCB forms(14) Ext PW9/A is receipt of special report (15) Ext PA is chemical report issued by SFSL Junga (16) Ext PA is order passed by Judicial Magistrate Ist Class Manali relating to presentation of case property before learned Judicial Magistrate. (17) Ext PB is certificate given by Judicial Magistrate Ist Class Manali relating to production of contraband before learned Judicial Magistrate (18) Ext PC is inventory list of case property.(19) Ext PD is application filed under section 52A(2) of NDPS Act before learned Judicial Magistrate Manali HP. (20) Ext PE is certificate given by Judicial Magistrate Ist Class Manali relating to verification of case property. (21) Ext PX is chemical analyst report given by CFSL Chandigarh admissible under section 293 Code of criminal procedure, 1973. 9. (20) Ext PE is certificate given by Judicial Magistrate Ist Class Manali relating to verification of case property. (21) Ext PX is chemical analyst report given by CFSL Chandigarh admissible under section 293 Code of criminal procedure, 1973. 9. Submission of learned Additional Advocate General that judgment of learned trial is perverse and based upon non-appreciation of oral and documentaries evidence properly is accepted for reasons hereinafter mentioned. We have carefully perused seizure memo of commercial contraband Ext PW1/A placed on record. As per seizure memo Ext PW1/A placed on record one Kg charas was found from exclusive and conscious possession of accused. Marginal witnesses of seizure memo Ext PW1/A are PW1 Subhash Chand and PW2 Deepak Kumar. We have carefully perused testimony of PW1 Subhash Chand marginal eye witness of seizure memo. PW1 Subhash Chand eye witness has specifically stated in positive manner that one Kg charas was recovered from exclusive and conscious possession of accused Ved Ram in his presence. Testimony of PW1 Subhash Chand eye witness is trustworthy, reliable and inspires confidence of Court. There is no reason to disbelieve testimony of PW1 Subhash Chand eye witness. There is no evidence on record in order to prove that PW1 Subhash Chand eye witness has hostile animus against accused Ved Ram at any point of time. 10. We have also perused testimony of PW2 Deepak Kumar marginal eye witness of seizure memo. PW2 Deepak Kumar eye witness has stated in positive manner that one Kg charas was recovered from possession of accused in his presence. Testimony of PW2 Deepak Kumar eye witness is trustworthy, reliable and inspires confidence of Court. There is no reason to disbelieve testimony of PW2 Deepak Kumar eye witness. There is no evidence on record in order to prove that PW2 Deepak Kumar eye witness has hostile animus against accused at any point of time. Testimony of marginal eye witnesses PW1 Subhash Chand and PW2 Deepak Kumar also corroborated by documentary evidence placed on record i.e. (1) Seizure memo Ext PW1/A. (2) Site plan Ext PW3/B. (3) Special report Ext PW3/D. (4) Rapat No.14 dated 21.11.2006 Ext PW4/A. (5)Extract of malkhana register Ext PW6/A. (6) Road certificate Ext PW6/B. (7) Seal impression obtained upon plain cloth Ext PW8/B. (8) NCB forms Ext PW8/C placed on record. (9) Chemical analyst report Ext PA placed on record. (9) Chemical analyst report Ext PA placed on record. (10) Certificates Ext PB and Ext PE given by Judicial Magistrate Ist Class Manali relating to production of case property before him. (11) Inventory list Ext PC placed on record. 11. Submission of learned Advocate appearing on behalf of accused that no independent witness procured in the present case and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that present recovery of contraband was chance recovery and was not pre planned search. It is proved on record that search of accused was conducted on suspicion and there was no prior information to police officials regarding commission of offence under Narcotic Drugs and Psychotropic Substance Act 1985. It is held that in chance recovery of contraband procurement of independent witness is not mandatory. It is well settled law that Narcotic Drugs and Psychotropic Substance Act 1985 is special Act. It is well settled law that when there is conflict between special law and general law then special law always prevails. It is held that search in the presence of independent witness is mandatory when search is relating to closed place only. In the present case search of accused was not conducted in closed place but search of accused was conducted in open place at Som Van on bridge in District Kullu HP. Hence it is held that non-association of independent witness is not fatal to prosecution case. See State of Punjab v. Balbir AIR 1994 Apex Court 1872. See Mohinder Kumar v. State of Punjab 1998 (8) SCC 655 . See Bharatbhai Bhagwanji bhai v. State of Gujarat AIR 2013 Apex Court 7. See Ahmed v. State of Gujarat AIR 2000 SC 2790 . See State of Punjab v. Baldev Singh AIR 1999 Apex Court 2378. See State of Punjab v. Balbir Singh AIR 1994 Apex Court 1872. 12. Submission of learned Advocate appearing on behalf of accused that accused cannot be convicted simply on the testimony of police officials is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that as per section 59 of Indian Evidence Act 1872 chapter IV all facts can be proved by way of direct oral evidence. It is well settled law that as per section 59 of Indian Evidence Act 1872 chapter IV all facts can be proved by way of direct oral evidence. It was held in case reported in 1996 (1) SCC 427 title Samalana Abdulla v. State of Gujarat that evidence of police officials cannot be rejected solely on the ground that witnesses are police officials and were members of raiding party. It was held that testimony of public servant should not be discarded merely on the ground that public servant was interested in the success of case. See Govind Raju v. State 2012 (4) SCC 722 . See Tika Ram v. State of MP 2007 (15) SCC 760 . See Girja Prasad v. State of MP 2007 (7) SCC 625 . See Tahir v. State (Delhi) 1996 (3) SCC 338 . In the present case accused did not file any complaint against police officials relating to false implication. There is no evidence on record that police officials have hostile animus against accused at any point of time. 13. Submission of learned Advocate appearing on behalf of accused that testimonies of PW1 Subhash Chand and PW2 Deepak Kumar are contradictory to each other and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter. We have carefully perused testimonies of oral eye witnesses examined by prosecution. There is no material contradiction in the testimony of prosecution witnesses which goes to the root of case. It is well settled law that minor contradictions are bound to come in a criminal case when testimony of prosecution witnesses recorded after a gap of sufficient time. In the present case commercial quantity of contraband was recovered on 21.11.2006 and testimonies of prosecution witnesses were recorded on dated 5.8.2008, 6.8.2008, 19.8.2008 and 27.9.2008 after a gap of sufficient time. It was held in case reported in C. Muniappan and others v. State of Tamil Nadu 2010 (9) SCC 567 that even if there are omissions, contradictions and discrepancy the entire evidence should not be discarded. It was held that undue importance should not be attached to omission, contradiction and discrepancy which do not goes to the root of case. It was held that minor discrepancies are bound to occur in statement of witnesses in criminal cases. It was held that undue importance should not be attached to omission, contradiction and discrepancy which do not goes to the root of case. It was held that minor discrepancies are bound to occur in statement of witnesses in criminal cases. Also see Sohrab and another v. State of M.P. 1972 SC 2020, see State of U.P. v. M.K. Anthony AIR 1985 SC 48 , see Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753 , see State of Rajasthan v. Om Parkash AIR 2007 SC 2257 . It is also well settled law that principle of falsus in uno falsus in omnibus is not applicable in criminal trials. See Bhe Ram v. State of Haryana AIR 1980 SC 957 . Also See Rai Singh v. State of Haryana AIR 1971 SC 2505 . 14. Submission of learned Advocate appearing on behalf of accused that as per prosecution story three parcels were sealed with three seals impression 'T' and thereafter case property was produced before SI Lal Singh who re-sealed parcel with three seal impression 'H" and thereafter case property was produced before Judicial Magistrate Ist Class Manali who issued certificate Ext PB that parcels were having eight seals and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused certificate Ext PB issued by learned Judicial Magistrate Manali HP. Learned Judicial Magistrate Manali has given certificate that seals were found intact. There is no evidence on record that seals were tampered with. In the absence of positive evidence that seals were tampered it is not expedient in the ends of justice to dismiss the appeal filed by State on this plea. PW1 Subhash Chand and PW2 Deepak Kumar have specifically stated when they appeared in witness box that contraband shown in Court is the same contraband which was recovered from exclusive and conscious possession of accused. 15. Submission of learned Advocate appearing on behalf of accused that sample was not dispatched to laboratory within seventy two hours of seizure as per instruction issued by Director General of Police HP and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that administrative instruction cannot over-ride statutory law. It is well settled law that administrative instruction cannot over-ride statutory law. It is well settled law that procedural defect will not defeat justice unless miscarriage of justice is caused to accused. We are of the opinion that no miscarriage of justice is caused to accused in present case by way of non sending contraband for chemical examination within seventy two hours. There is no positive, cogent and reliable evidence on record that contraband was tampered with when contraband remained in malkhana. In present case learned Judicial Magistrate has given certificate Ext PB that contraband was produced before him in intact condition. 16. Submission of learned Advocate appearing on behalf of accused that as per testimony of PW1 Subhash Chand cloth was cut with scissors and packets were prepared with the help of needle and thread but in fact two sides of clothes were stitched with machine and one side was stitched with needle and thread and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. PW1 Subhash Chand and PW2 Deepak Kumar when they appeared in witness box have stated in positive manner that contraband recovered from accused is the same contraband which was recovered from exclusive and conscious possession of accused. There is no positive, cogent and reliable evidence on record in order to prove that contraband produced in court was not recovered from exclusive and conscious possession of accused. Eye witnesses have also identified accused in the court. Same contradiction is not fatal to prosecution case. 17. Submission of learned Advocate appearing on behalf of accused that no consent of accused was obtained whether he intends to be searched before judicial magistrate or gazetted officer and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that recovery of contraband was chance recovery. It is held that in chance recovery compliance of section 50 of NDPS Act is not mandatory. Even it is proved on record that contraband was recovered from bag and was not recovered from person of accused. In bag recovery compliance of section 50 is not mandatory See Gurbax v. State of Haryana AIR 2001 SC 1002 . See Sarjudas and another v. State of Gujarat 2000 Cri.L.J. 509 Apex Court. Even it is proved on record that contraband was recovered from bag and was not recovered from person of accused. In bag recovery compliance of section 50 is not mandatory See Gurbax v. State of Haryana AIR 2001 SC 1002 . See Sarjudas and another v. State of Gujarat 2000 Cri.L.J. 509 Apex Court. See Kalema Tumba v. State of Maharashtra and another 2000 Cri.LJ. 507 Apex Court. 18. Submission of learned Advocate appearing on behalf of accused that original seal not produced in Court and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. In the present case PW1 Subhash Chand has specifically stated that he did not bring seal in court and same is lying in his quarter. PW1 has not stated that he could not produce seal in Court. Even accused did not file any application before learned trial Court to direct accused to bring seal in Court. PW1 has not stated in positive manner that seal has been lost. In view of the fact that PW1 has stated in positive manner that seal is lying in his quarter and in view of the fact that accused did not request learned trial court to direct PW1 to bring seal court it is held that it is not expedient in the ends of justice to dismiss the appeal filed by State on this ground alone and same alone fact is not fatal to prosecution case. 19. Submission of learned Advocate appearing on behalf of accused that in view of ruling reported in Latest HLJ 2014 (HP) 1120 titled Bal Raj Singh v. State of HP and in view of ruling report in Latest HLJ 2015 (HP) 341 titled State of HP v. Anil Kumar appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. Above stated rulings are not applicable in present facts and circumstances of case and are distinguishable because in present case testimonies of PW1 Subhash Chand and PW2 Deepak Kumar who are eye witnesses of seizure of commercial quantity of contraband are trustworthy, reliable and inspire confidence of court. Above stated rulings are not applicable in present facts and circumstances of case and are distinguishable because in present case testimonies of PW1 Subhash Chand and PW2 Deepak Kumar who are eye witnesses of seizure of commercial quantity of contraband are trustworthy, reliable and inspire confidence of court. In the present case testimonies of PW1 and PW2 who are eye witnesses of recovery and seizure memo inspire confidence of Court and corroborated by the testimony of other oral witnesses and documentaries evidence placed on record. It is well settled law that law laid down by Apex Court of India cited supra is binding upon all courts as per Article 141 of Constitution of India. 20. It is well settled law Narcotic Drugs and Psychotropic Substance Act is a special act and as per section 35 of NDPS Act 1985 there is presumption of culpable mental state. Accused did not adduce any defence evidence despite opportunity granted by learned trial Court. Presumption of culpable mental state of accused as mentioned in section 35 of NDPS Act remains un-rebutted on record in present case. 21. It is well settled law that duty of the court is to impart justice and duty of court is not to defeat justice on technical grounds. It is well settled law that procedure is only for advancement of justice and not for defeat of justice. In the present case commercial quantity of contraband was recovered from exclusive and conscious possession of accused beyond reasonable doubt. We are of the opinion that no person can be allowed to spoil life of youth of nation for personal monetary gains. Contraband is spoiling the life of youth of nation and business of contraband is offence against society and against nation as a whole. In view of above stated facts it is held that judgment of learned trial court is perverse. It is held that judgment of learned trial Court is based upon non-appreciation of oral as well documentaries evidence properly. Point No. 1 is answered in affirmative. Point No.2(Final order). 22. In view of finding on point No.1 appeal filed by State is allowed. Judgment of learned trial court is set aside. We convict accused under Section 20 of Narcotic Drugs and Psychotropic Substance Act 1985. Now convict be heard on quantum of sentence. Convict be produced before us on 25.4.2016.