JUDGMENT : Sureshwar Thakur, J. Since, both these appeals arise from a common judgment rendered on 17/09/2014-18/09/2014 in Session trial No. 151 of 2013 (309 of 13) by the learned Special Judge, Kullu, hence, are proposed to be decided by a common judgment. 2. Criminal Appeal No. 440 of 2014 stands instituted by the State of H.P. for enhancement of sentence while its standing aggrieved by the judgment of the learned trial Court, whereby on its convicting the accused qua charge framed against him under Section 21 of the NDPS Act sentenced him to undergo rigorous imprisonment for five years and to pay fine of Rs.50,000/- and in default of payment of fine he stood sentenced to undergo rigorous imprisonment for one year. The sentence of imprisonment imposed upon the accused/convict Marvelous Osaze is concerted by the State of Himachal Pradesh to be disproportionate vis.a.vis the gravity of the offence for which he stood convicted hence a prayer is made in the appeal aforesaid instituted by the State of Himachal Pradesh of the sentence aforesaid on its modification being enhanced. On the other hand, Criminal appeal No.358 of 2014 stands instituted before this Court at the instance of the accused, who stands aggrieved by the findings of conviction recorded against him for his committing an offence punishable under Section 21 of the NDPS Act. 3. Briefly stated the facts of the case are that on 1.8.2013, the police party headed by SI Shiv Singh had left police Post City, Akhara Bazar, Kullu for routine patrolling and detection of crimes and at about 11:45 a.m. they were present at bus stand Sarwari Kullu where they noticed accused Marvelous roaming, who on seeing the police party tried to run away. This act on part of accused raised suspicion in the mind of police, so he was intercepted and his name and address etc. was inquired. I.O. got suspicious that the accused might be in possession of some contraband, so I.O. apprised the accused about his legal right to be searched either before a Gazetted Officer or a Magistrate. The accused Marvelous opted and gave his consent to be searched before a Gazetted Officer, so I.O. telephonically informed the Dy. S.P. Sanjay Kumar about this fact. Upon this Dy. S.P. Sanjay Kumar reached the bus stand. The accused Marvelous opted and gave his consent to be searched before a Gazetted Officer, so I.O. telephonically informed the Dy. S.P. Sanjay Kumar about this fact. Upon this Dy. S.P. Sanjay Kumar reached the bus stand. I.O. associated PW1 Deepak Sharma Adda Incharge of HRTC bus stand, Kullu and one tea vendor Vijay Kumar as witnesses. Thereafter the accused was taken to Police Assistance Room located at bus stand, Sarwari Kullu where I.O. first gave his personal search to the accused in presence of aforesaid witnesses and Dy. S.P. Sanjay Sharma and nothing was recovered from his possession. Thereafter search of bag of accused which he was carrying on his left shoulder was carried in presence of aforesaid witnesses and Dy. S.P. Sanjay Kumar. During search of bag, one jacket, one camera, one pair of shoes, one charger were recovered. And from the right foot shoe kept in side the bag, one sock was removed in which accused Marvelous had kept one plastic envelope. On opening of said plastic envelope, four small packets containing white colour powder were recovered along with another packet. The recovered white coloured powder was tested by the I.O. with the help of detection kit and it was found to be cocaine. It was weighed and found to be 34 grams, 10 grams, 9 grams and 12 grams (total 65 grams) from all the four packets. Thereafter all the four packets containing cocaine were marked as mark A, B, C and D and were put in the same plastic envelope and the said plastic envelope was sealed in one cloth parcel with five seals of letter-P. The other articles along with red colour bag recovered from the accused were put in another parcel and sealed with six seals of letter-P. I.O. also drew sample seal of P and also filled in NCB forms in triplicate. Thereafter, both the parcels were taken into possession and in this regard a seizure memo was prepared. A ruqa was prepared by the I.O. and sent to the police station through Const. Varun Kumar, upon which relevant FIR was registered. I.O. prepared spot map and recorded statements of witnesses. Then accused Marvelous Osaze was arrested. Thereafter, both the parcels were taken into possession and in this regard a seizure memo was prepared. A ruqa was prepared by the I.O. and sent to the police station through Const. Varun Kumar, upon which relevant FIR was registered. I.O. prepared spot map and recorded statements of witnesses. Then accused Marvelous Osaze was arrested. It is further case of the prosecution that the police party on completion of proceedings on the spot came to the police station, where I.O. produced the sealed parcels of case property along with relevant documents before SHO Raj Kumar who resealed the same with seal-R. He also filled in relevant columns of NCB form and drew sample seal of R. Thereafter he deposited the same in his Register. On 3.8.2013, MHC had sent the sealed parcel of cocaine along with sample seals, NCB form and other relevant documents to FSL Junga, through Const. Chet Ram and FSL report was received which confirmed the contents of exhibit to be sample of cocaine. On 2.8.2013, I.O. prepared special report and submitted the same to Addl. S.P. Kullu Nihal Chand. 4. At bus stand accused Marvelous Osaze was receiving calls on his mobile phone from some local number and at that time Inspector Feroz Khan was present who had also come to the spot. Inspector Feroz Khan informed Dy. S.P. about the telephone calls being made on the mobile phone of accused Marvelous. Subsequently S.P. Kullu was also informed. Accused was receiving telephone calls from AIRTEL mobile No. 98161-48400. So after inquiry it was found that the said mobile was of co-accused Prem Singh resident of Manali, however at the relevant time, location of Prem Singh was found to be at Kasol. Consequently, Inspector Feroz Khan alongwith other police officials went to Kasol where co-accused Prem Singh was staying in one house. On checking of his room, two weighing machines were recovered which were sealed with seal-T and taken into possession. Consequently accused Prem Singh was also arrested. Thereafter Inspector Feroz Khan came to Kullu and handed over all the documents to SI Shiv Singh. 5. On conclusion of the investigation, into the offences, allegedly committed by the accused a final report under Section 173 of the Code of Criminal Procedure was prepared and presented in the competent Court. 6. Consequently accused Prem Singh was also arrested. Thereafter Inspector Feroz Khan came to Kullu and handed over all the documents to SI Shiv Singh. 5. On conclusion of the investigation, into the offences, allegedly committed by the accused a final report under Section 173 of the Code of Criminal Procedure was prepared and presented in the competent Court. 6. The accused stood charged for his committing an offence punishable under Section 21 of the NDPS Act to which he pleaded not guilty and claimed trial. 7. In order to prove its case, the prosecution examined 11 witnesses. On closure of prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure, stood recorded in which he pleaded innocence and claimed false implication. In defence, he chose not to lead any evidence. 8. The accused stands aggrieved by the findings of conviction recorded by the learned trial Court for his committing an offence punishable under Section 21 of the NDPS Act. The learned counsel appearing for the accused has concerted to vigorously contend qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of conviction being reversed by this Court, in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 9. On the other hand, the learned Additional Advocate General appearing for the State has with considerable force and vigour, contended qua the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference rather meriting vindication. However, the sentence imposed upon the accused by the learned trial Court is canvassed to be inadequate vis-à-vis the gravity of offence qua which the accused/convict stood convicted and is espoused to be hence necessitating enhancement by this Court while exercising its appellate jurisdiction. 10. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 11. Recovery of cocaine Ext.P-2 weighing 65 grams stood effected under recovery memo Ext.PW-1/B from a bag slung on the left shoulder of the accused. 10. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 11. Recovery of cocaine Ext.P-2 weighing 65 grams stood effected under recovery memo Ext.PW-1/B from a bag slung on the left shoulder of the accused. Even though the prosecution witnesses have deposed in tandem and in harmony qua each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis, portraying proof of unbroken and unsevered links, in the entire chain of circumstances, hence it stands argued that given the prosecution case hence standing established, it would be legally unwise for this Court to acquit the accused. 12. The prosecution version qua the genesis of recovery of cocaine from the accused under memo Ext.PW-1/B would stand imputed credence by this Court only in the event of an wholesome appraisal of the testimonies of each of the prosecution witnesses unfolding theirs standing uningrained with any vice of inter se or intra se contradictions. For determining qua the prosecution witnesses in their respective examinations in chief vis-à-vis their respective cross examinations unfolding therein a version qua the genesis of the prosecution story bereft of any disharmony or inconsistency, it is imperative to advert to the testimonies of PW-9, PW-10 and PW-11. However, before adverting thereto it is at the outset deemed fit to allude to the factum of the accused under Memo Ext.PW-1/A consenting to his search being held by a Gazetted Officer. In sequel, to his manifesting in Ext.PW-1/A of his search being held by a Gazetted Officer Dy.S.P. Sanjay Sharma PW-9 (a Gazetted Officer) had through a telephonic message purveyed to him by SI Shiv Singh, Incharge Police Post, Akhara Bazar, Kullu proceeded to the site of occurrence. However, the anchor of the prosecution version is of simultaneity of presence thereat of both PW-9 and SHO Feroz Khan. Consequently, a keen discernment of evidence on record is imperative for gathering therefrom of both PW-9 and Feroz Khan being contemporaneously present at the site of occurrence whereat the apposite proceedings stood initiated and concluded. However, the anchor of the prosecution version is of simultaneity of presence thereat of both PW-9 and SHO Feroz Khan. Consequently, a keen discernment of evidence on record is imperative for gathering therefrom of both PW-9 and Feroz Khan being contemporaneously present at the site of occurrence whereat the apposite proceedings stood initiated and concluded. In case a thorough rummaging of the record dispels their simultaneous presence at the site of occurrence at the apposite stage it would as a corollary sequel an inference of the entire prosecution version being amenable to its being thrown overboard whereupon no credence is imputable especially when the prosecution version stands hence hinged upon discrepant evidence. In the aforesaid endeavour to gauge the presence with simultaneity of both PW-9 and SHO Feroz Khan at the site of occurrence an allusion to the testimony of PW-9 is preeminently significant. PW-9 in his cross examination has feigned ignorance qua the factum of SHO Feroz Khan departing from the site of occurrence subsequent to his departure there-from. Moreover he has also feigned ignorance qua the factum of Feroz Khan remaining present at the site of occurrence even when he had departed therefrom. He therein feigns ignorance qua the factum of the accused knowing Hindi or not. Moreover he has also feigned ignorance qua the factum of Feroz Khan remaining present at the site of occurrence even when he had departed therefrom. He therein feigns ignorance qua the factum of the accused knowing Hindi or not. However, he has proceeded to in his cross examination depose of the accused standing apprised by him in English qua the disclosures in seizure memo Ext.PW-1/B. Now adverting to the deposition comprised in the cross examination of PW-10 wherein he bespeaks of SHO Feroz Khan simultaneously not being present alongwith PW-9 at the site of occurrence when seizure memo Ext.PW-1/B thereat stood prepared while hence openly contradicting the testimony of PW-9 of SHO Feroz Khan being thereat simultaneously throughout present along with him during the holding of the apposite proceedings thereat besides his in his cross examination disclosing therein the factum of departure of Inspector Feroz Khan from the site of occurrence being previous or prior to the departure therefrom of PW-9 also stands in sharp contradiction to the deposition comprised in the cross examination of PW-9 wherein he has feigned ignorance qua the departure therefrom of Feroz Khan being prior to his departure therefrom hence while his evincing an obvious equivocation qua the factum aforesaid, as such, constrains this Court to conclude of his not deposing consistently with PW-10 rather his standing contradicted by the latter of inspector Feroz Khan departing from the site of occurrence prior to the departure therefrom of DSP PW-9. Contradictions intra se PW-9 and PW-10 qua the departure of SHO Feroz Khan from the site of occurrence being prior to or later to the departure therefrom of PW-9 besides qua the availability thereat of SHO Feroz Khan at the time of preparation of seizure memo Ext.PW-1/B more especially qua their contemporaneous presence thereat at the stage of preparation of Ext.PW-1/B cannot stand slighted as it bears a telling effect upon the veracity of the prosecution version qua the simultaneous presence thereat of both PW-9 and SHO Feroz Khan. Contradictions for reasons aforesaid qua the aforesaid factum probandum dispel the factum of the simultaneous presence of both PW-9 and PW-11 at the site of occurrence at the stage contemporaneous to the holding thereat of the apposite proceedings. Contradictions for reasons aforesaid qua the aforesaid factum probandum dispel the factum of the simultaneous presence of both PW-9 and PW-11 at the site of occurrence at the stage contemporaneous to the holding thereat of the apposite proceedings. With evidence dispelling the aforesaid factum probandum effect thereof is of doubt seeping besides percolating into the genesis of the prosecution version also its making deep and pervasive inroads qua the propagation by the prosecution of the entire proceedings standing initiated and concluded at the site of occurrence with both PW-9 and SHO Firoz Khan simultaneously present thereat. Obviously, the aforesaid inroads render discrepant besides ingrain the prosecution version with a vice of intra se contradictions vis-à-vis the testimonies of PW-9 and PW-10 rendering dis-imputable to credence the prosecution story of seizure memo Ext.PW-1/A standing prepared in their simultaneous presence whereupon an inference is marshalable of the veracity of the testimonies of each of the prosecution witnesses unfolding therein qua its preparation with simultaneity of presence thereat of PW-9 with SHO Feroz Khan suffering a deep erosion. Apart therefrom for reiteration the vigour of the prosecution version of SHO Feroz Khan remaining contemporaneously present with PW-9 throughout the stages of initiation and conclusion of the apposite proceedings at the site of occurrence when for reasons aforesaid standing dispelled also gains momentum from the factum of PW-9 though deposing qua the aforesaid factum of Feroz Khan remaining present throughout the holding of the apposite proceedings at the site of occurrence whereas in contradiction thereof with PW-10 in his cross-examination deposing qua at the time contemporaneous to the preparation of seizure memo Ext.PW-1/B SHO Feroz Khan being unavailable at the site of occurrence erodes the genesis of the prosecution version of seizure memo Ext.PW-1/B whereunder cocaine Ext.P-2 weighing 65 grams stood effected from the bag slung on the left shoulder of the accused standing infected with doubt qua its recovery in the manner espoused by the prosecution. In sequel, the preparation of seizure memo Ext.PW-1/B appears to be concocted as well as invented whereupon no credibility is to be fastened. 13. The inference aforesaid galvanizes additional strength from the deposition comprised in the crossexamination of inspector Feroz Khan whereunder he has deposed of recovery of cocaine, Ext.P-2 weighing 65 grams standing effectuated under recovery memo Ext.PW-1/B even prior to his arriving at the site of occurrence. 13. The inference aforesaid galvanizes additional strength from the deposition comprised in the crossexamination of inspector Feroz Khan whereunder he has deposed of recovery of cocaine, Ext.P-2 weighing 65 grams standing effectuated under recovery memo Ext.PW-1/B even prior to his arriving at the site of occurrence. Moreover, his feigning ignorance qua the factum wherefrom it stood recovered gives latitude to a deduction therefrom of recovery of cocaine Ext.P-2 weighing 65 grams standing not effectuated from the conscious and exclusive possession of the accused in the manner espoused by the prosecution. As a corollary, the ensuing deduction therefrom is of its standing recovered in a manner other than the one as portrayed by the prosecution. In aftermath, the prosecution version suffers from an infirmity of discrepant evidence qua its recovery occurring in the manner afore-stated in the testimonies of the official witnesses wherefrom an inference emerges of its standing denuded of its vigour. 14. The summum bonum of the above discussion is that the prosecution has not been able to adduce cogent and emphatic evidence in proving the guilt of the accused. The appreciation of the evidence as done by the learned trial Court suffers from an infirmity as well as perversity. Consequently, reinforcingly, it can be formidably concluded, that, the findings of the learned trial Court merit interference. 15. In view of above discussion, appeal bearing No.358 of 2014 filed by the accused stands allowed. However, the appeal preferred by the State for enhancement of sentence imposed by the learned trial Court upon the accused stands dismissed. In sequel, the impugned judgment of 17.09.2014 rendered by the learned Special Judge, Kullu, insofar as it convicts and sentences the accused Marvelous Osaza is setaside. The appellant/accused is acquitted of the offence charged. The fine amount, if any, deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 16. The Registry is directed to prepare the release warrants of the accused and send the same to the Superintendent of the jail concerned, in conformity with the judgment forthwith. Records be sent back forthwith