JUDGMENT : Rajiv Sharma, J. 1. The State has come in appeal against Judgment dated 22.9.2011 rendered by the learned Special Judge, Fast Track, Kullu, Himachal Pradesh in Sessions Trial No. 17 of 09, whereby the respondents-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offences under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake) alongwith third accused Teja Ram, have been acquitted. Accused Teja Ram was declared proclaimed offender on 19.8.2011. 2. Case of the prosecution, in a nutshell, is that Constable Bhagat Ram, Constable Luxman Dass, HHC Neel Chand, Constable Vijay Kumar, Constable Tara Chand and ASI Man Singh were coming from Fagu Pull to Banjar on 7.11.2008 in an official vehicle. When the police party reached near Jhula behind Chiunta Pull at about 3.35 PM, they saw three persons coming from Sidhwan on foot. One person was holding black coloured bag in his right hand. Accused persons got frightened on seeing the police on which ASI Man Singh asked the driver to stop the vehicle. The police party alighted from the jeep. ASI Man Singh apprehended Pintu Ram. Constable Bhagat Ram apprehended accused Baljit Singh and third person ran away from the soot. No independent person was found at that place despite best efforts, so ASI Man Singh associated Constable Tara Chand and Constable Bhagat Ram as witnesses. ASI Man Singh informed Pintu Ram that he was suspecting some contraband concealed inside the clothes or in his bag and therefore he was to be searched. He was apprised about his legal right to be searched before a gazetted officer or a Magistrate. Accused Pintu opted to be searched by the police. Memo to this effect was prepared which was signed by Constable Bhagat Ram and Constable Tara Chand. ASI Man Singh gave his personal search to Pintu and another memo was prepared to this effect. Search of bag of Pintu Ram was conducted, on which stick like and ball shaped Charas wrapped in polyethene bag was found. It weighed 1.500 kg. Two samples each weighing 25 grams were drawn after breaking the pieces from the sticks and balls and put in separate pieces of polythene and thereafter wrapped in separate pieces of cloth. Search of bag of Pintu Ram was conducted, on which stick like and ball shaped Charas wrapped in polyethene bag was found. It weighed 1.500 kg. Two samples each weighing 25 grams were drawn after breaking the pieces from the sticks and balls and put in separate pieces of polythene and thereafter wrapped in separate pieces of cloth. Remaining Charas was put in the same polythene and polythene was put in the same bag from which it was recovered. Bag was wrapped in a piece of cloth. Each parcel was sealed with six impressions of seal ‘C’. Samples of seal were taken separately on piece of clothes. NCB-I form was filled in triplicate. Seal impression was taken on the NCB form and seal was handed over to Tara Chand after use. Charas was seized vide seizure memo and signatures of witnesses were obtained on the memo. Personal search of Pintu was conducted. No contraband was found in his possession during this personal search. Personal search of Baljit Singh was also conducted. Memo to this effect was prepared but no contraband was found in his possession. Rukka was prepared which was handed over to Constable Bhagat Ram with the direction to carry it to Police Station. Constable Bhagat Ram carried the Rukka to Police Station and handed over the same to SI/SHO Lal Singh. FIR was registered. Site Plan was prepared. Case property was produced before the SI/SHO Lal Singh. He resealed the same with four impressions of seal ‘H’. He filled in relevant columns of NCB I form. He prepared sample seals on separate pieces of cloth and handed over the parcels alongwith sample seals ‘C’ and ‘H’, NCB I form in triplicate to MHC Uttam Chand at 8.50 PM. MHC Uttam Chand made an entry at Sr. No 140 in the Malkhana Register. HC Uttam Chand handed over one sample parcel and relevant documents to Constable Luxman Dass vide RC No. 90/08 with the direction to carry these to FSL Junga. Constable Luxman Dass took the case property to FSL Junga. FSL report is Ext. PA. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as seven witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. They pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. FSL report is Ext. PA. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as seven witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. They pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. M.A. Khan, Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Naveen K. Bhardwaj, Advocate has supported Judgment dated 22.9.2011. 6. We have heard the learned counsel for the parties and also gone through the judgment and record carefully. 7. Constable Bhagat Ram (PW-1) deposed that they reached Jhula prior to Chiunta bridge. Accused came towards them. One person was holding a black coloured bag in his right hand. They got frightened on seeing the police. Vehicle was stopped by ASI Man Singh. Accused ran towards Banjar. They ran after the accused. ASI apprehended the person carrying the bag. Other person was apprehended by him and third person went towards the river. He could not be apprehended. ASI inquired from accused Pintu whether he wanted to be searched by a Magistrate or a Gazetted Officer. He expressed his desire to be searched by the police. Memo Ext. PW-1/A was prepared to this effect. ASI gave his personal search to the accused. No contraband was found in his possession. Memo Ext. PW-1/B was prepared to this effect. The bag was searched. Charas was found in it. It weighed 1.500 kg. Two samples each weighing 25 grams were separated for chemical analysis. Same was taken after breaking the pieces from the balls and the sticks. Each sample was wrapped in a piece of cloth. Remaining Charas was kept in the same polythene bag. Polythene bag was kept in the same bag from which was recovered. This bag was wrapped in a piece of cloth. Each parcel was sealed with six impressions of seal ‘C’. Sample seal was taken separately on a piece of cloth. Search, seizure and sampling proceedings were completed at the spot. Rukka was prepared and handed over to him with the direction to carry it to Police Station, Banjar. He handed over Rukka to SHO Lal Singh, who recorded the FIR and handed over the case file to him. In his cross-examination, he has admitted that the pieces of Charas Ext. Search, seizure and sampling proceedings were completed at the spot. Rukka was prepared and handed over to him with the direction to carry it to Police Station, Banjar. He handed over Rukka to SHO Lal Singh, who recorded the FIR and handed over the case file to him. In his cross-examination, he has admitted that the pieces of Charas Ext. P4 were intact and no samples have been taken out from the same which have been wrapped in the polythene. He also admitted that there were three houses and one shop at Chiunta. He was sent to call for independent witnesses but he could not find any. The shop was of mechanic. He also admitted that vehicles frequently plied on the road. Volunteered that it was evening time and no vehicles crossed the spot. Two persons ran after the absconder who returned after half an hour. 8. Constable Luxman Dass (PW-2) also testified the manner in which accused were apprehended. Two accused were apprehended. Third one ran away. Search, seizure and sampling proceedings were completed at the spot. IO prepared the Rukka and handed over it to Constable Bhagat Ram with the direction to carry it to the Police Station. He carried the Rukka to Police Station. MHC Uttam Chand handed over one parcel stated to be containing 25gms charas which was sealed with six impressions of seal ‘C’ and four impressions of seal ‘H’ along with NCB-I form in triplicate and other documents to him on 9.11.2008 with the direction to carry these to FSL Junga vide RC No. 90/08. He deposited the same at FSL on 10.11.2008. In his cross-examination, he has admitted that there were 2/3 houses adjacent to the spot and one workshop was also there. These were located at a distance of 150-200 metres from the spot. Constable Bhagat Ram went there and came back in 10 minutes. 9. ASI Man Singh (PW-3) also deposed the manner in which the accused were apprehended on the spot. Third one had run away. According to him, no independent witness could be found despite best efforts. He associated Constable Tara Chand and Constable Bhagat Ram as independent witnesses. He informed accused Pintu Ram orally as well as in writing that he was suspecting possession of contraband with him or in his bag and that he was to be searched. Third one had run away. According to him, no independent witness could be found despite best efforts. He associated Constable Tara Chand and Constable Bhagat Ram as independent witnesses. He informed accused Pintu Ram orally as well as in writing that he was suspecting possession of contraband with him or in his bag and that he was to be searched. He asked whether he wanted to be searched before a gazetted officer or a Magistrate. Accused consented to be searched by the police. Memo to this effect Ext. PW-1/A was prepared which was signed by Constable Bhagat Ram and Constable Tara Chand. He gave his personal search to the accused. He searched the bag. Charas was found wrapped in polythene. It weighed 1.500 kg. Two samples each weighing 25 grams were prepared after breaking the pieces from sticks and balls. These samples were wrapped in separate pieces of polythene. Remaining Charas was put in the same polythene and polythene was put in the same bag from which it was recovered. Bag was also wrapped in piece of cloth. Each parcel was sealed with six impressions of seal ‘C’. Sample seal was taken separately on pieces of cloth. Rukka was prepared. It was handed over to Constable Bhagat Ram. Case property was produced before ASI Lal Singh for the purpose of resealing. He resealed the same with four impressions of seal ‘H’ and obtained sample seal on a separate piece of cloth. He filled in relevant columns of NCB-I form. He also admitted in his examination-in-chief that personal search of accused Baljit was also carried out. Ext. PW-3/B was prepared to this effect. 10. MHC Uttam Chand (PW-5) deposed that SI Lal Singh handed over one parcel sealed with six impressions of seal ‘C’ and four impressions of seal ‘H’, two sample parcels each sealed with six impressions of seal ‘C’ and four impressions of seal ‘H’ alongwith NCB-I form in triplicate, sample seals ‘C’ and ‘H’ to him on 7.11.2008 at 8.50 PM. He made entry in the Malkhana Register at Sr. No. 140/08. Case property was deposited in the Malkhana. He handed over the case property to Luxman Dass to be deposited at FSL Junga. He also admitted that two impressions each of seal ‘C’ and seal ‘H’ were deposited with him. He denied that no documents or samples of seals were sent to FSL Junga. 11. No. 140/08. Case property was deposited in the Malkhana. He handed over the case property to Luxman Dass to be deposited at FSL Junga. He also admitted that two impressions each of seal ‘C’ and seal ‘H’ were deposited with him. He denied that no documents or samples of seals were sent to FSL Junga. 11. Inspector Lal Singh (PW-7) deposed that he resealed the case property with four impressions of seal ‘H’. Personal search of accused Pintu Ram was carried out by ASI Man Singh (PW-3). 12. Consent memo is Ext. PW-1/A. Court has gone through the same. Accused Pintu has not been apprised of his legal right to be searched before a Gazetted Officer or a Magistrate as per Ext. PW-1/A. It is mandatory to mention in the consent memo that the accused has a legal right to be searched before a Magistrate or a Gazetted Officer. Section 50 of the Act is mandatory. ASI Man Singh (PW-3) has also admitted in his cross-examination that the personal search of the accused Baljit Singh was also carried out but no contraband was recovered from his possession. ASI Man Singh (PW-3) has not prepared any consent memo qua Baljit Singh, which was mandatory. It has also not come on record that Baljit Singh was ever apprised about his legal right to be searched before a gazetted officer or a Magistrate. 13. According to the prosecution, the place where accused were apprehended was secluded and isolated. Thus no independent witnesses could be found. However, PW-1 Constable Bhagat Ram has admitted in his cross-examination that there were three houses and one shop at Chiunta. He was sent to call for independent persons but he could not find any. The shop was of mechanic. Constable Luxman Dass (PW-2), in his cross-examination, has admitted that there were 2/3 houses adjacent to the spot and one workshop was also there. These were located at a distance of 150-200 metres from the spot. Constable Bhagat Ram went there and came back in 10 minutes. Police should have joined the independent witnesses by calling witnesses from the houses. Place where accused were apprehended was on a busy road. They could associate drivers/occupants in order to inspire confidence about the search, seizure and sampling proceedings carried out at the spot. Constable Bhagat Ram went there and came back in 10 minutes. Police should have joined the independent witnesses by calling witnesses from the houses. Place where accused were apprehended was on a busy road. They could associate drivers/occupants in order to inspire confidence about the search, seizure and sampling proceedings carried out at the spot. MHC Uttam Chand (PW-5) has deposed that the case property was deposited with him in the Malkhana by making entry at Sr. No. 140 in the Malkhana Register. He has proved extract of the same. There is an entry recorded that parcel was sent to FSL through Luxman Dass on 9.11.2008 vide RC No. 90/08. However, when the bulk parcel was sent to the FSL, there is no entry qua the same made in the Malkhana Register. Bulk was carried to FSL Junga through Constable Sobha Ram. Sobha Ram has not been examined. 14. Case of the prosecution is that one sample of bulk was also sent alongwith NCB-I form however, there is no explanation by the prosecution from where they have produced another NCB-I form whereas, NCB-I form in triplicate was already filled up at different stages. 15. It was not necessary for the police to conduct personal search of the accused since Charas was recovered from the bag. But personal search was conducted without following mandate of Section 50 of the Act. 16. Prosecution has also failed to prove that the accused were known to each other. In fact, police has arrayed Pintu Ram as main accused and others have been arrayed as co-accused only because they happened to be walking with the main accused. It was necessary for the prosecution to prove connivance between Pintu Ram and other persons, walking with him. Nexus was required to be found out by the prosecution to attract Section 29 of the Act. Prosecution has also not gathered any evidence to prove the previous acquaintance /association between the accused. Thus, the prosecution has failed to prove criminal conspiracy and abetment with other accused in transportation of Charas due to lack of evidence. 17. Constable Bhagat Ram, in his cross-examination, has admitted that pieces of Charas Ext. P4 were intact and no samples have been taken out from the same which have been wrapped in polythene. Entire contraband was required to be mixed homogenously for preparing samples to be sent for chemical examination to FSL. 17. Constable Bhagat Ram, in his cross-examination, has admitted that pieces of Charas Ext. P4 were intact and no samples have been taken out from the same which have been wrapped in polythene. Entire contraband was required to be mixed homogenously for preparing samples to be sent for chemical examination to FSL. Thus, there are inherent shortcomings in the investigations, which have proved fatal to the prosecution case. 18. The prosecution has failed to prove case against the accused under Section 20 and 29 of the Act. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court. 19. In view of the discussion and analysis made herein above, there is no merit in the appeal and the same is dismissed. Bail bonds of the accused as discharged. Pending applications, if any, are disposed of.