JUDGMENT : Rajiv Sharma, J. Since both the appeals arise from one judgment and common questions of law and facts are involved in the same, both were taken up together for hearing and are being disposed of by this common judgment. 2. The present appeals have been instituted against Judgment/order dated 1.6.2015/2.6.2015 rendered by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahar, HP, in Sessions Trial No. 0100039/2009, whereby the appellants-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offence under Sections 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), have been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1.00 Lakh each, and in default of payment of fine, to further undergo simple imprisonment for one year. 3. Case of the prosecution, in a nutshell, is that on 19.9.2009 at about 11.45 PM, a police party headed by ASI Jagat Singh, accompanied by Constable Nanak Chand No. 127, Constable Mohar Singh No. 224, HHG Gian Chand No. 7/6-56, HHG Vijay Kumar No. 7/6-16 and HHG Prittam Singh No. 7/6-78 left the Police Station, Nirmand, District Kullu for routine night patrol duty towards Dev Dhank etc. The police set up a Naka at Dev Dhank for the checking of the vehicles. On 20.9.2009, at about 5.40 AM, the police intercepted a red Maruti Alto Car No. HP-62-1109 coming from Dev Dhank side. The vehicle was stopped for the purpose of routine checking. The car was being driven by accused Des Raj, whereas accused Tej Singh was occupying front seat and accused Laiq Ram was sitting on the rear seat of the vehicle. The identity of the accused persons was ascertained and thereafter the vehicle was checked by ASI Jagat Singh leading to recovery of white bag kept by accused Tej Singh in between his feet on the floor of the car with mark ‘Priya Deluxe- Print’. Police thereafter checked the bag. It contained black coloured substance in the shape of small balls of various sizes. It was found to be charas. It weighed 1.5 kgs. Charas was put in the same bag. It was packed in cloth parcel and was sealed with 8 seal impressions of seal ‘H’. Sample seal of ‘H’ was drawn separately. NCB form was filled up. It contained black coloured substance in the shape of small balls of various sizes. It was found to be charas. It weighed 1.5 kgs. Charas was put in the same bag. It was packed in cloth parcel and was sealed with 8 seal impressions of seal ‘H’. Sample seal of ‘H’ was drawn separately. NCB form was filled up. Sealed parcel containing 1.5 kg charas was taken into possession vide seizure memo. Rukka was prepared. It was sent through Constable Mohar Singh to the Police Station Nirmand for registration of the FIR. FIR No. 76/2009 was registered. Case property was produced before the Inspector Vidya Chand, SHO Police Station, Nirmand for the purpose of resealing. The sealed parcel containing 8 seals of ‘H’ was resealed with 5 seals of impression ‘D’. Case property was handed over to HC Lal Chand for safe custody. Necessary entries were made in the register. Case property was handed over to HHC Shyam Lal vide RC No. 53/2009 for depositing the same at SFSL Junga. It was deposited at SFSL Junga on 23.9.2009. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 4. Prosecution has examined as many as 7 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. They pleaded innocence. Learned trial Court convicted all the accused. Hence, these appeals. 5. Mr. Nand Lal Chauhan and Mr. Sanjeev Kumar, Advocates, have vehemently argued that the prosecution has failed to prove its case against the accused. 6. Mr. P.M. Negi, Deputy Advocate General, has supported the Judgment/Order of conviction dated 1.6.2015/2.6.2015. 7. We have heard the learned counsel for the parties and also gone through the judgment and record carefully. 8. PW-1 Constable Chand Mishra, deposed that he was posted in Computer Branch at Police Station, Nirmand. On 21.9.2009, ASI Jagat Singh had handed over to him special report. He handed over the same to the SDPO Ani. 9. PW-2 Constable Mohar Singh testified that he was posted as a Constable in Police Station, Nirmand. During the night intervening 19.9.2009 and 20.9.2009, he alongwith other police officials was on Naka duty towards Dev Dhank. At 5.40 AM, one Maruti Alto Car bearing No. HP-62-1109 came towards Dev Dhank. The vehicle was stopped. Place was isolated and no independent witness could be associated. During the night intervening 19.9.2009 and 20.9.2009, he alongwith other police officials was on Naka duty towards Dev Dhank. At 5.40 AM, one Maruti Alto Car bearing No. HP-62-1109 came towards Dev Dhank. The vehicle was stopped. Place was isolated and no independent witness could be associated. In his presence and presence of Nanak Chand, the vehicle was searched. On search of the vehicle, a white coloured envelope was found kept in between the feet of Tej Singh, who was sitting with the driver. Bag was opened. It contained Charas. Sealing proceedings were completed on the spot including filling up of NCB form. Rukka was handed over to him. Case property was produced in the Court while examining this witness. In his cross-examination, he has admitted that they went to the spot and have checked about 8-10 vehicles before checking the vehicle of the accused persons. He denied that there was a labour colony situate near alleged place of occurrence and some houses fall on the way. Last house was 1½ kms from the spot. Sealing was done in his presence. In the crossexamination by the learned defence counsel appearing for accused Des Raj and Laiq Ram, he admitted that the personal search of Des Raj and Laiq Ram was carried out and search of the vehicle was also carried out by the police party. The police party did not give their personal search to the accused. Contraband was found on the floor of the vehicle and not on the person of the accused. No efforts were made to associate independent witnesses. 10. PW-3 HC Lal Chand deposed that Rukka was received in the Police Station through Constable Mohar Singh. He entered the same. On the basis of Rukka, FIR was registered. On the same day, SHO Vidya Chand produced one parcel sealed with seal impression ‘H’, 8 in number, and resealed with seal impression ‘D’, 5 in number, alongwith sample of seal, NCB for and connected documents. He entered the same in Malkhana Register at Sr. No. 216. He handed over the case property to HHC Shyam Lal for depositing the same with FSL Junga. 11. PW-5 HHC Shyam Lal deposed that he remained posted as HHC at Police Station, Nirmand. He entered the same in Malkhana Register at Sr. No. 216. He handed over the case property to HHC Shyam Lal for depositing the same with FSL Junga. 11. PW-5 HHC Shyam Lal deposed that he remained posted as HHC at Police Station, Nirmand. On 22.9.2009, MHC Lal Chand handed over to him one sealed parcel sealed with seal impression ‘H’, 8 in number and resealed with seal impression ‘D’, 5 in number alongwith sample of seals ‘D’ and ‘H’, NCB form, copy of seizure memo, copy of FIR and other connected documents vide RC No. 53/2009 for depositing the same with FSL Junga. He deposited the same with FSL Junga on 23.9.2009. 12. PW-6 Inspector Vidya Chand resealed the case property with seal impression ‘D’. 13. PW-7 ASI Jagat Singh deposed the manner in which vehicle was searched, in the presence of Mohar Singh and Nanak Chand. Contraband was recovered from the vehicle. NCB form was filled up. He prepared the Rukka and also site plan, Ext. PW-7/C. Rukka Ext. PW-6/A was sent through Constable Mohar Singh to the Police Station, on the basis of which FIR, Ext. PW-6/B was registered. In his cross-examination, he has admitted that distance of the spot from the Police Station is about 2-2 ½ kms. He denied that there were residential hoses from Police Station upto the spot on both sides of the road. Volunteered that houses were only on one side of the road. He also admitted that near the Police Station, there were residences of BDO and Tehsildar, Nirmand. They did not make the search of contraband in the presence of gazetted officer as it was a chance recovery. 8-10 vehicles were checked before Maruti Alto car was searched. In his cross-examination by the learned defence counsel appearing for accused Des Raj, he specifically admitted that he did not obtain any consent memo of the search of vehicle and person of the accused. He also admitted that the contraband was not visible with naked eye. He also admitted that they had conducted personal search of accused before their arrest. When personal search of accused was conducted the copy of seizure memo Ext. PW-2/B was also found in possession of the accused. 14. It has come in the statement of PW-2 Mohar Singh that the personal search of the accused Des Raj and Laiq Ram was carried out. When personal search of accused was conducted the copy of seizure memo Ext. PW-2/B was also found in possession of the accused. 14. It has come in the statement of PW-2 Mohar Singh that the personal search of the accused Des Raj and Laiq Ram was carried out. PW-7 ASI Jagat Singh has also admitted that he did not obtain any consent memo for the search of vehicle and personal search of the accused. It was not obligatory on the part of the police to search the accused since Charas was recovered from the bag lying in the car. However, since accused have been searched, Section 50 of the Act, ought to have been complied with. Accused were required to be told that they had a legal right to be searched before a gazetted officer or a Magistrate. Compliance of Section 50 of the Act is mandatory. Police has not joined any independent witnesses to give credibility to the search, seizure and sampling proceedings on the spot. PW-2 Mohar Singh in his examination-in-chief deposed that the place was isolated one and no independent witness could be associated. However, in his cross-examination, he has admitted that some houses fell on the way but the last house was 1 ½ kms from the spot. He has also admitted in his cross-examination that no efforts were made to associate any independent witnesses. Thus, it was neither an isolated place nor a desolate place. Prosecution should have examined independent witnesses. Even, PW-7 ASI Jagat Singh in his cross-examination, has admitted that the residential houses were only present on one side of road and near the Police Station, residences of BDO and Tehsildar Nirmand were situate. According to PW-7 ASI Jagat Singh they have checked 8-10 vehicles before Maruti alto car reached the spot. Similarly, PW-2 Constable Mohar Singh admitted that they have checked 8-10 vehicles before checking Maruti Alto Car of the accused. Police should have associated the occupiers of these vehicles during the course of search, seizure and sampling proceedings. 15. In Punjab Police Rules, also applicable to the State of Himachal Pradesh, Malkhana register is assigned serial number- 19. It is in a tabular form. There are different columns like who has deposited the case property and when it was taken out and deposited back. 15. In Punjab Police Rules, also applicable to the State of Himachal Pradesh, Malkhana register is assigned serial number- 19. It is in a tabular form. There are different columns like who has deposited the case property and when it was taken out and deposited back. These details are very material and every deposit made in the Malkhana /Store Room is to be recorded and also at the time when it is re-deposited. 16. In this case, case property was produced during the examination of PW-2 Mohar Singh. Prosecution has not examined the person 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. 17. Further no daily diary has been proved to establish how the case property was taken out from the Malkhana for being produced in the Court and also at the time when it was taken back to the Malkhana from the Court. 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. Sub-rule (2) Rule 22.18 of Punjab Police Rules, reads as under: (2) All case property and unclaimed property, other than cattle, of which the police have taken possession shall, if capable of being so treated, be kept in the store-room. Otherwise the officer in charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above. Each article shall be entered in the store-room register and labelled. Otherwise the officer in charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above. Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store-room register. The officer in charge of the police station shall examine Government and other property in the store-room at least twice a month and shall make an entry in the station diary on the Money following the examination to the effect that he has done so. 20. Rule 27.18 of Punjab Police Rules, reads as under: 27.18. Safe custody of property.- (1) Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. See Rule 22.18. When required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting sub-inspector and an entry made in the register of issue from and return to the prosecuting agency’s store-room, which register shall be maintained in Form 27.18(1). Animals sent in connection with cases shall be kept in the pound attached to the police station at the place to which they have been sent, and the cost of their keep shall be recovered from the District Magistrate in accordance with Rule 25.48. (2) In all cases in which the property consists of bullion, cash, negotiable securities, currency notes or jewellery, exceeding in value Rs. 500 the Superintendent shall obtain the permission of the District Magistrate, Additional District Magistrate or Sub-Divisional Officer to make it over to the Treasury Officer for safe custody in the treasury. (3) All cash, jewellery and other valuable property of small bulk, which is not required under sub-rule (2) above to be sent to the treasury, shall be kept in a locked strong box in the store-room. (3) All cash, jewellery and other valuable property of small bulk, which is not required under sub-rule (2) above to be sent to the treasury, shall be kept in a locked strong box in the store-room. Each court orderly shall be provided with a strong lock-up box in which he shall keep all case property while it is in his custody in the court to which he is attached. Case property shall invariably be kept locked-up in such box except when it is actually produced as an exhibit in the course of proceedings. After being so produced it shall be immediately replaced in the lock-up box. Boxes shall be provided from funds at the disposal of the District Magistrate. (4) Property taken out of the main store-room for production in court shall be signed for by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts. (5) Every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the storeroom, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. Animals brought from the pound shall be repounded under the supervision of a head constable. 21. Thus, it is evident from rule 22.18 that the case property is required to be kept in store room and each article is to be entered in store room, registered and labelled and label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles is required to be given on the label and in the store-room register. If several articles are contained in a parcel, a detail of the articles is required to be given on the label and in the store-room register. Similarly, it is provided in Rule 27.18 that Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. The case property when required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting subinspector (now APP/PP) and an entry made in the register of issue from and return to the prosecuting agency’s store-room, which register shall be maintained in Form 27.18(1). Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such officer similarly, after personal check, is required to initial the entry of return of the property to the main store-room on the closing of the courts. It is further provided in this Rule that every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. In case property is required to be committed to the higher Court, then under Rule 27.19, the parcel shall be sealed with the seal of the court and made over to the head of the police prosecuting agency, who shall produce it with unbroken seals before the superior court, or, if so ordered by competent authority, shall make it over to some other officer authorized so to produce it. 22. In this case, there is nothing on record to suggest that these Rules were followed while producing case property in the Court and on returning the same. 22. In this case, there is nothing on record to suggest that these Rules were followed while producing case property in the Court and on returning the same. These Rules have been framed to ensure that case property from its initial stage of seizure till production in the Court remains safe/intact and is restored to store room in the presence of senior police officer. Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal is required to initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts. 23. There is violation of Section 50 of the Act. Police has also not associated any independent witnesses. 24. The prosecution has failed to prove that the contraband was recovered from the conscious and exclusive possession of the accused. . 25. Accordingly, in view of the discussion and analysis made herein above, both the appeals are allowed. Judgment/order dated 1.6.2015/2.6.2015 rendered by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahar, HP, in Sessions Trial No. 0100039/2009 is set aside. Accused are acquitted of the offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Fine amount, if any, deposited by the accused is ordered to be refunded to them. They are ordered to be released forthwith, if not required in any other case. Registry is directed to prepare and send the release warrants of the accused to the concerned Superintendent of Jail, forthwith.