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2017 DIGILAW 1113 (HP)

State Of Himachal Pradesh v. Jagdish Kumar

2017-09-21

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT Chander Bhusan Barowalia, J. —The present appeal is preferred by the appellant/State, under section 378 of the Code of Criminal Procedure, 1973 assailing the judgment of acquittal, dated 20.1.2009, passed by the learned Special Judge (Fast Tack Court), Kullu, District Kullu, H.P., in Sessions Trial No.20 of 2008, whereby the accused has been acquitted of the charges framed against him under Section 20 of the Narcotic Drugs & Psychotropic Substances Act,1985 (hereinafter referred to as ''the Act''). 2. Succinctly, the facts giving rise to the present appeal, as per the prosecution story, are that on 08.11.2006, at 2.15 a.m., ASI, Lal Chand along-with HHC, Uttam Singh, C. Rajeev Kumar, LC, Som Lata and LC, Harash Lata was on patrol duty in Van Vihar Forest, Manali. Police Party was on its way towards Beas river-bed. One person, who had concealed himself behind the stone on being seen by the police party, he was apprehended on suspicion. On inquiry, he disclosed his name to be Jagdish Kumar, resident of near Gandhara Hotel, Manali. It was suspected that the accused might be in possession of contraband. It has been alleged that the accused was apprised about his legal right to be searched in the presence of a Magistrate or Gazetted Officer, on which, he consented to be searched by the police present on the spot. ASI, Lal Chand gave his personal search to the accused and memo was prepared in this behalf. Thereafter, the accused was subjected to personal search by ASI, Lal Chand in the presence of witnesses HHC, Uttam Singh and C. Rajeev Kumar. During the course of personal search of the accused, one newspaper ''Himalaya Kesri'' was recovered from the pocket of his pants in which one polythene envelope had been wrapped in which Charas had been kept in the shape of sticks. The recovered Charas was weighed on the spot and it was found to be 145 grams. Two samples of Charas, 20 grams each, were separated from the recovered Charas and were sealed in separate parcels. The remaining Charas was put back in the same polythene envelope and said polythene envelope containing Charas was wrapped in the same newspaper and was sealed in a separate parcel. Three seal impressions of ''T'' were affixed on each parcel. Samples of seal ''T'' were also obtained separately. NCB-I was filled in triplicate on the spot. The remaining Charas was put back in the same polythene envelope and said polythene envelope containing Charas was wrapped in the same newspaper and was sealed in a separate parcel. Three seal impressions of ''T'' were affixed on each parcel. Samples of seal ''T'' were also obtained separately. NCB-I was filled in triplicate on the spot. It has been alleged that the seal after use was handed over to HHC Uttam Singh. Search and seizure memo was prepared, which was signed by the accused and witnesses HHC, Uttam Singh and C. Rajeev Kumar. It has also been alleged that copy of search and seizure memo was supplied to the accused free of cost. 3. It has also been alleged that a rukka was prepared on the spot by ASI, Lal Chand, which was handed over to HHC Uttam Singh with a direction to take the same to Police Station, Manali. HHC Uttam Singh handed over the rukka to Sub Inspector, Rup Singh at Police Station, Manali, on which, FIR was registered. Sub Inspector, Rup Singh prepared the case file and handed over the same to HHC Uttam Singh, who came to the spot and handed over the case file to ASI, Lal Chand. It has been alleged that the accused was apprised by ASI, Lal Chand about the commission of offence and punishment prescribed under the Act and arrest memo was prepared. ASI, Lal Chand went to the Police Station, Manali, along-with the accused and the case property. The case property was produced before SI, Rup Singh for the purpose of its resealing, which was resealed by said Rup Singh. He prepared samples of seal impression ''H''. Thereafter, he also deposited the case property with MHC, Pinki in the Police Malkhana at Manali in intact position. 4. MHC, Pinki handed over one sealed sample parcel, NCB-I, in triplicate, samples of seal impressions ''H'' and ''T'' to Constable Davinder Prashad on 09.11.2006 with a direction to deposit the same at CFSL, Chandigarh. It has been alleged that sample along-with the relevant documents was deposited at CFSL, Chandigarh by Constable Davinder Prashad. He obtained receipt from the Laboratory and handed over the same to MHC, Pinki at Police Station, Manali. The report of CFSL, Chandigarh, was received. The report reveals that the contents of the sample were found to be that of Charas. It has been alleged that sample along-with the relevant documents was deposited at CFSL, Chandigarh by Constable Davinder Prashad. He obtained receipt from the Laboratory and handed over the same to MHC, Pinki at Police Station, Manali. The report of CFSL, Chandigarh, was received. The report reveals that the contents of the sample were found to be that of Charas. Special report was also prepared by ASI, Lal Chand, which was handed over to Dy. Superintendent of Police, Manali. It has also been alleged that an application was filed in the Court of learned Judicial Magistrate Ist Class, Manali (hereinafter to be referred as ''JMIC'') by the S.H.O., Police Station, Manali, under Section 52A (2) of the Act, praying therein for taking representative sample, which was allowed by the learned JMIC. Thereafter, representative sample was drawn in the presence of the learned JMIC and necessary certificate was issued by him. On completion of the investigation, accused was challaned for the commission of offence under Section 20 of the Act. Copies of Challan were supplied to the accused. He was charged for the commission of offence under Section 20 of the Act to which, the accused pleaded not guilty rather, claimed trial. 5. The prosecution, in order to prove its case, examined as many as eight witnesses. Statement of the accused was recorded under Section 313 Cr.PC, wherein he denied the involvement in this incident and pleaded that Charas had not been recovered from him and that he has been falsely implicated in this case. No defence evidence has been led by the accused in support of his case. 6. The learned trial Court, vide impugned judgment dated 20.01.2009, acquitted the accused for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, hence the present appeal. 7. Heard. Mr. V.S. Chauhan, learned Additional Advocate General has vehemently argued that the learned Court below without appreciating the facts, which have come on record, correctly and on the basis of conjectures and surmises has acquitted the accused. He has argued that it was a chance recovery and all the legal requirements were complied with by the prosecution and the prosecution has proved the guilt of the accused beyond shadow of reasonable doubt and so the judgment of acquittal may be set aside and accused be convicted and sentenced. 8. On the other hand, Mr. He has argued that it was a chance recovery and all the legal requirements were complied with by the prosecution and the prosecution has proved the guilt of the accused beyond shadow of reasonable doubt and so the judgment of acquittal may be set aside and accused be convicted and sentenced. 8. On the other hand, Mr. J.L. Bhardwaj, learned counsel appearing for the respondent/accused (hereinafter called as ''the accused'') has argued that the alleged place of recovery is a very busy place of Manali and it was a day time and in these circumstances, non-joining of independent witnesses cast a serious suspicion in the prosecution story. He has argued that even otherwise also, the other witnesses while deposing in the Court could not connect the accused with the alleged recovery of Charas. In rebuttal, the learned Additional Advocate General has argued that the statement of the official witnesses are confidence inspiring and the accused be convicted. 9. In order to appreciate the rival contentions of the parties, we have gone through the record carefully and in detail. 10. PW-1, HHC, Uttam Singh has deposed that on 08.11.2006, he along-with C. Rajeev Kumar, LC, Som Lata, LC, Harash Lata and ASI, Lal Chand had proceeded towards Manali from Van Vihar and they were on patrol duty. At about 2.15 p.m. they were present at Van Vihar, Manali. One person on seeing the police party had concealed himself behind the stone. On suspicion, he was encircled by them and thereafter apprehended on the spot. On inquiry, he disclosed his name to be Jagdish Kumar resident of near Gandhara Hotel, Manali. ASI, Lal Chand suspected that the accused might be in possession of contraband. ASI, Lal Chand associated with him and C. Rajeev Kumar, as witness in this case. The accused was apprised about his legal right to be searched in the presence of a Magistrate or Gazetted Officer, on which, he consented to be searched by the police present on the spot. Consent memo, Ext.PA, was prepared on the spot, which was signed by him, C. Rajeev Kumar and accused Jagdish. ASI, Lal Chand gave his personal search to the accused in the presence of PW-1 and C. Rajeev Kumar. Thereafter, personal search memo of Investigating Officer, Ext. PB, was prepared in this behalf, which was signed by him, C. Rajeev Kumar and the accused. ASI, Lal Chand gave his personal search to the accused in the presence of PW-1 and C. Rajeev Kumar. Thereafter, personal search memo of Investigating Officer, Ext. PB, was prepared in this behalf, which was signed by him, C. Rajeev Kumar and the accused. Thereafter, accused Jagdish was subjected to personal search by ASI, Lal Chand in their presence. During the course of personal search of accused Jadgish, one newspaper ''Himalaya Kesri'' was found in the right pocket of the pant of accused, in which polythene envelope had been wrapped, in which Charas, in the shape of sticks, had been kept. Each stick of Charas had been wrapped in polythene pack. Recovered Charas was weighted on the spot and it was found to be 145 grams. The sample of Charas, 20 grams each, were separated from the recovered Charas and were sealed in separate parcels. Remainder of Charas was put back in the same polythene envelope and said polythene envelope containing Charas was wrapped in the same newspaper and was sealed in separate parcel. Three seal impressions of ''T'' were affixed on each parcel. NCB-I, in triplicate, were filled on the spot by ASI, Lal Chand. Search and seizure memo, Ext. PC was prepared on the spot by ASI, Lal Chand, which was signed by PW1, C. Rajeev Kumar and accused Jagdish. Copy of the seizure memo was supplied to the accused free of cost. Samples of seal impressions ''T'' were obtained separately and one such sample is Ext. PD. Seal, after use, was handed over to him. Rukka was prepared on the spot by ASI, Lal Chand, which was handed over to PW1 with a direction to take the same to Police Station, Manali. PW1 handed over rukka at the Police Station, Manali to Sub Inspector, Rup Singh, on which, FIR was registered. SI, Rup Singh prepared case file and handed over the same to him. PW1 came to the spot with case file and handed over to same to ASI, Lal Chand. Thereafter, ASI, Lal Chand apprised the accused about the commission of offence and punishment prescribed under the Act and arrest memo, Ext. PE was prepared in this connection. Jamatalashi memo of accused was also prepared. Statement of PW1 was also recorded by ASI, Lal Chand. Thereafter, ASI, Lal Chand apprised the accused about the commission of offence and punishment prescribed under the Act and arrest memo, Ext. PE was prepared in this connection. Jamatalashi memo of accused was also prepared. Statement of PW1 was also recorded by ASI, Lal Chand. In his cross-examination, he has deposed that when he went to Police Station Manali to hand over Rukka, he had met SI, Rup Singh there and he does not remember whether he had met any other police official or not. He did not meet wife of the accused Jagdish, when he went to Police Station, Manali. He had not disclosed to ASI, Lal Chand, during the course of recording of his statement that he had met the wife of the accused and had informed her about the arrest of the accused. He denied the suggestion that seal was not handed over to him. He has admitted that there is road between Van Vihar and the Police Station. He has admitted that there are residential houses and hotel situated by the side of the road. He has also admitted that the place of occurrence is situated in Van Vihar located in front of Police Station and that tourists also visit Van Vihar. He has also admitted that the owner of Van Vihar is the Forest Department and that there is an artificial lake inside Van Vihar. He volunteered to state that a Chowkidar is also deputed at third gate of Van Vihar. He has also admitted that distance between the place of occurrence and the gate located in front of Police Station is more than half kilometer. He has also deposed that Charas was weighed in five lots. The weighing scale was manual, which was in investigating-kit. He does not remember whether he had stitched the parcels. He also does not remember the name of police official, who had sealed the parcels and who had scribed rukka. He has further, deposed that consent memo, Ext. PA had been scribed by ASI, Lal Chand and the FIR number on the memo is in the handwriting of ASI, Lal Chand, but he does not remember who had scribed the contents of consent memo, Ext.PB and also seizure memo, Ext. PC and arrest memo, Ext.PE. Five samples of seal impression ''T'' had been prepared on the spot. PA had been scribed by ASI, Lal Chand and the FIR number on the memo is in the handwriting of ASI, Lal Chand, but he does not remember who had scribed the contents of consent memo, Ext.PB and also seizure memo, Ext. PC and arrest memo, Ext.PE. Five samples of seal impression ''T'' had been prepared on the spot. He has denied the suggestion that proceeding relating to this case had not been conducted in his presence. He has denied the suggestion that consent of the accused had not been obtained and Jamatalashi memo was prepared after the preparation of arrest memo. He has denied the suggestion that Charas had been recovered by the police in the luggage of the labourers and also denied the suggestion that the accused has been falsely implicated in this case on suspicion and also that that he did not take rukka to Police Station, Manali. 11. PW-2, C.Rajeev Kumar has deposed that he remained posted as a Reader to Deputy Superintendent of Police, Manali w.e.f. 2000 to June, 2007. He has further deposed that on 08.11.2006, he along-with HHC, Uttam Singh, LC, Som Lata, LC, Harash Lata and ASI, Lal Chand were proceeding towards Manali from Van Vihar, as they were on patrol duty. One person came from opposite direction and on seeing the police party, he concealed himself behind a big stone. ASI, Lal Chand suspected that the accused might be in possession of contraband. ASI, Lal Chand asked his name and address and he disclosed his name to be Jagdish Kumar. In cross-examination, he has admitted Entry No.15, dated 07.11.2006, in the register to be in his handwriting. He remained at the spot for about three hours and none else had come on the spot during this period on the day of occurrence. He has also admitted that neither he met the wife of the accused nor he had any talk with her. He had not disclosed to the Investigating Officer during the course of recording of his statement under Section 161 Cr.P.C., 1973 that he had informed the wife of the accused about the arrest of accused Jagdish. He has deposed that his statement was recorded by the Investigating Officer at about 4.00 or 4.15 pm. He had not disclosed to the Investigating Officer during the course of recording of his statement under Section 161 Cr.P.C., 1973 that he had informed the wife of the accused about the arrest of accused Jagdish. He has deposed that his statement was recorded by the Investigating Officer at about 4.00 or 4.15 pm. He has also deposed that Van Vihar is located in front of the Police Station, Manali and also that the distance between two gates is 01Km. The distance between outer boundary line of Van Vihar and other end of Van Vihar is about 50-60 mtrs. He has further deposed that the distance between the gate located in front of Police Station, Manali and place of occurrence is about 700 to 800 mtrs. He has also deposed that the accused had been spotted on river side of Van Vihar. The height of the stone was 3 or 4 feet behind which the accused had concealed himself. He does not remember from which direction the Investigating Officer had reached near the stone. He has deposed that there are residential houses and hotels located near Van Vihar. He has admitted that a Chowkidar has been deployed by the Forest Department to look after Van Vihar. He has further deposed that it may take 05 to 07 minutes to reach road side from the spot of occurrence. Rukka had been scribed by him. Consent memo was also scribed by him under the direction of ASI, Lal Chand. He also scribed seizure memo, Ext.PC and memo, Ext. PD had not been scribed by him. Memo, Ext. PB is in the handwriting of LC, Som Lata. Arrest memo, Ext.PE was also scribed by him. He denied the suggestion that memo, Ext.PA, to PC had been scribed by the one person. He further denied the suggestion that figure 25 had been changed by him in the rukka, as 20. He also deposed that five samples of seal impressions ''T'' had been obtained. He denied the suggestion that he was not present on the spot on 08.11.2006. He denied the suggestion that he was not detailed on general patrolling duty on the said date, since he was Reader to the Deputy Superintendent of Police, Manali and also denied the suggestion that he was present in the office of Dy. S.P. Manali on the said date. He denied the suggestion that he was not detailed on general patrolling duty on the said date, since he was Reader to the Deputy Superintendent of Police, Manali and also denied the suggestion that he was present in the office of Dy. S.P. Manali on the said date. He does not know that the accused is employed, as a Driver, in the office of Nagar Panchayat, Manali. He also does not know that the accused drives Tractor and JCB of Nagar Panchayat. He has denied the suggestion that the accused was subjected to beatings at Police Station, Manali and his signatures were obtained on various documents. It is also denied that on the day of occurrence, the accused was on his duty along-with Tashi Palomo, Bimla, local lady and one Ram Singh. He has denied the suggestion that the luggage of labourers was lying there. He has also denied the suggestion that the accused was taken to Police Station, Manali, on the basis of suspicion. He has also denied the suggestion that Charas had been recovered from the luggage of labourers. He denied the suggestion that the Charas had not been recovered from the accused. He has also denied the suggestion that he has deposed falsely. 12. PW-3, HHC Ganga Ram has deposed that he had brought rojnamcha of Police Station, Manali. Report No.22 has been recorded by him in the said rojnamcha. He has also proved the report, Ext.PJ, as per original record. In his cross-examination, he has denied the suggestion that report, Ext.PJ, has been fabricated by the police in order to implicate accused falsely in this case. 13. PW-4, ASI, Lal Chand has stated that he had been posted as ASI at Police Station, Manali w.e.f. January 2005 to August 2007 and that on 08.11.2006 at about 2 pm, he along-with HHC, Uttam Singh, C. Rajeev Kumar, LC, Som Lata and LC, Harash Lata were on patrol duty in Van Vihar. At about 2.15 p.m., one person had concealed himself behind the stone, on seeing the police party. He suspected that the accused might be in possession of contraband. He asked the name and address of the accused and he disclosed his name to be Jagdish Kumar. At about 2.15 p.m., one person had concealed himself behind the stone, on seeing the police party. He suspected that the accused might be in possession of contraband. He asked the name and address of the accused and he disclosed his name to be Jagdish Kumar. The accused was apprised about his legal right to be searched in the presence of a Magistrate or Gazetted Officer on which he consented to be searched by the police present on the spot. Consent memo, Ext.PA was prepared on the spot, which was signed by HHC, Uttam Singh, C. Rajeev Kumar and accused Jagdish. He gave his personal search to accused in the presence of witnesses and memo, Ext. PB was prepared in this behalf and thereafter, the accused was subjected to personal search by him. During the course of personal search of the accused, one newspaper ''Himalaya Kesri'' was found in the right pocket of pant, in which polythene envelope had been wrapped in which Charas had been kept in the shape of sticks, which was weighed on the spot and the same was found to be 145 grams. The sample of Charas 20 grams each, were separated from the recovered Charas and were sealed in separate parcels. Remaining Charas was put back in the same polythene envelope and said polythene envelope which was put back in the same newspaper and was sealed in separate parcel. Three seal impressions of ''T'' were affixed on each parcel. NCB-I, in triplicate, was filled on the spot by him. Column Nos.1 to 8 were also in his handwriting and the same are Ext.PK. Samples of seal impression ''T'' were obtained separately and one sample is Ext.PD. Seal after use, was handed over to witness HC, Uttam Singh and search and seizure memo, Ext.PC was prepared on the spot, which was signed by HHC, Uttam Singh, C. Rajeev Kumar and accused Jagdish. He has stated that rukka, Ext.PL was prepared by him on the spot, which was sent to the Police Station, Manali through HHC, Uttam Singh for registration of FIR. He has also prepared site plan (Ext.PM) of place of occurrence and arrest memo Ext.PE. Statements of witnesses were also recorded on the spot and the case file was handed over to him by HHC, Uttam Singh on the spot and thereafter, he recorded the statement of HHC, Uttam Singh. He has also prepared site plan (Ext.PM) of place of occurrence and arrest memo Ext.PE. Statements of witnesses were also recorded on the spot and the case file was handed over to him by HHC, Uttam Singh on the spot and thereafter, he recorded the statement of HHC, Uttam Singh. Thereafter, he went to Police Station, Manali and handed over the case property to SI/SHO, Rup Singh and said Rup Singh resealed the case property and Jamatalashi memo of accused was also prepared. He has further stated that Special report was prepared by him on 09.11.2006, which was handed over to the Deputy Superintendent of Police, Manali. After completion of investigation, he handed over the case file to SI/SHO Rup Singh. In his cross-examination, he has deposed that the distance between place of occurrence and Police Station, Manali is about one furlong. It took 15 minutes for them to reach at the place of occurrence from Police Station, Manali. He admitted that Van Vihar is located in front of Police Station, Manali and admitted that there are houses and hotels located by the side of Van Vihar. Accused was spotted from a distance of about 5 or 6 feet. He was the first police official to apprehend the accused. He has stated that he was followed by the other police officials. He has further stated that he had not specifically asked the accused whether he wanted to give his personal search to the police and that they remained on the spot for about 4 hours and 15 minutes. The person of the accused was searched in its entirety. Charas had been recovered from the accused. Subsequently, two notes of Rs. 100/- denominations had also been recovered from the accused. HHC, Uttam Singh had gone to Police Station, Manali from the spot at 3.20 pm and he returned back at 4.25 pm. He has denied the suggestion that figure 25 has been changed to 20 in his presence by C. Rajeev in the rukka. He had also filled Column No.1 to 8 of NCB-I, in triplicate. He admitted that consent memo, Ext. PA had been scribed by C. Rajeev Kumar under his dictation. He has denied the suggestion that Tashi Palmo, Ram Singh, Bimla labourers were also present with the accused and also denied the suggestion that luggage of labourers was lying on the spot near Police Station, Manali. He admitted that consent memo, Ext. PA had been scribed by C. Rajeev Kumar under his dictation. He has denied the suggestion that Tashi Palmo, Ram Singh, Bimla labourers were also present with the accused and also denied the suggestion that luggage of labourers was lying on the spot near Police Station, Manali. He has also denied the suggestion that on the basis of suspicion, accused was taken to Police Station, Manali and the accused was subjected to beatings by police and his signatures were obtained on various documents. He also denied the suggestion that he did associate deliberately independent witnesses in this case. He has also denied the suggestion that independent witnesses were available on the spot and that the accused has been falsely implication in this case. 14. PW-5, Pinki Devi, who was posted as MHC at Police Station, Manali during the relevant period, has stated that on 08.11.2006, SI/SHO Rup Singh had handed over three sealed parcels, NCB-I, in triplicate, samples of seal impressions ''T'' and ''H'' to her. Each parcel was having three seal impressions of ''H'' and three seals impressions of ''T'' and the same were deposited in the Malkhana by her and necessary entry was also made in the register at Sr. No.505, an extract of which is Ext.PO, and the same has been stated to be correct, as per the original record. She has further stated that on 09.11.2006, she handed over one sealed sample parcel, NCB-I, in triplicate, samples of seal impressions ''H'' and ''T'' to Constable Davinder Prashad with a direction to deposit the same at CFSL, Chandigarh vide RC No.161/06 and proved Ext.PP, as correct, as per the original record. She also sent copies of FIR and seizure memo to CFSL, Chandigarh. Constable Davinder Prashad had obtained receipt (Ext.PQ) from the Laboratory and proved the same as correct, as per the original record and that the case property was not tampered at any stage. In cross-examination, she has stated that samples of seal impressions ''T'' and ''H'' had been deposited with her in the Malkhana, but she had not mentioned in Malkhana register that samples of seal impressions ''H'' and ''T'' had been deposited with her. She denied the suggestion that case property had not been deposited with her. In cross-examination, she has stated that samples of seal impressions ''T'' and ''H'' had been deposited with her in the Malkhana, but she had not mentioned in Malkhana register that samples of seal impressions ''H'' and ''T'' had been deposited with her. She denied the suggestion that case property had not been deposited with her. She has deposed that she had handed over the samples of seal impression ''H'' and ''T'' to C. Davinder Prashad, but she did not mention in the Malkhana register that samples had been handed over to C. Davinder Prashad for being carried to CFSL, Chandigarh. She has also denied the suggestion that she did not send sample to CFSL, Chandigarh for examination. She has also denied the suggestion that the case property has been tampered by the police. 15. PW-6, Inspector, Rup Singh, has deposed that he was posted as SI/Addl. SHO at Police Station Manali during the relevant period. He has further deposed that on 08.11.2006, rukka, Ex.PL was received at Police Station, Manali, through HHC, Uttam Singh, on the basis of which, Ext.PL. FIR, Ext.PS was registered at Police Station, Manali and he prepared case file and handed over the same to HHC, Uttam Singh, who took case file to the spot. He has deposed that on the same day, ASI, Lal Chand had handed over one bulk sealed parcel and two sealed sample parcels to him. Each parcel was having three seal impressions of ''T''. ASI Lal Chand had also handed over samples of seal impressions ''T'' and NCB-I, in triplicate to him. He had resealed aforesaid sealed parcels by affixing three seal impressions of ''H'' on each parcel. He has stated that he had prepared the challan and presented the same in the Court and his endorsement on rukka, Ext.PL is Ext.PV. In his cross-examination, he has deposed that ASI, Lal Chand had handed over four samples of seal impression to him. He had deposited four samples of seal impressions ''T'' with MHC, Pinki. He had also prepared four samples of seal impressions ''H'' and handed over the same to MHC, Pinki. He denied the suggestion that he did not receive rukka and that FIR, Ext. PS has been fabricated by the police. He also denied the suggestion that case property was not produced before him for the purpose of resealing. He had also prepared four samples of seal impressions ''H'' and handed over the same to MHC, Pinki. He denied the suggestion that he did not receive rukka and that FIR, Ext. PS has been fabricated by the police. He also denied the suggestion that case property was not produced before him for the purpose of resealing. He has also denied the suggestion that he did not deposit the case property with MHC, Pinki and that the report of CFSL, Chandigarh, Ext.PN does not pertain to this case. He has also denied the suggestion that the case property has been tampered. 16. PW7, MHC Hari Singh has stated that he was posted at Police Station, Manali w.e.f. August, 2004 till July, 2007. He has further stated that SHO, Sanjay Sharma had moved an application before the learned JMIC, Manali under Section 52A of NDPS Act. He (PW7) had produced one sealed bulk parcel and one sealed sample parcel before the learned JMIC, Manali and both these parcels were opened by the learned JMIC and contents of the same were mixed. The learned JMIC also took representative sample and sealed the same in parcel. Remained Charas was sealed in a separate parcel by the learned JMIC, Manali. Thus, one sealed bulk parcel and one sealed representative sample parcel were prepared by the learned JMIC and eight seal impressions of JMIC were affixed by him on the parcels. Seal, after use, was handed over to Prem Chand, Nazir of his Court and the sealed parcels were handed over to him (PW7). Necessary certificate, Ext. PX was prepared by the learned JMIC, Manali, in this behalf. The application moved by the aforesaid SHO is Ext. PY. In his cross-examination, he has denied the suggestion that SHO, Sanjay Sharma had not moved application before the learned JMIC, Manali for taking representative sample. He has also denied the suggestion that he had not produced the case property before the learned JMIC, Manali and that no representative samples had been drawn in his presence. He has further denied the suggestion that no certificate has been issued by the learned JMIC, Manali and he is deposing falsely. 17. He has also denied the suggestion that he had not produced the case property before the learned JMIC, Manali and that no representative samples had been drawn in his presence. He has further denied the suggestion that no certificate has been issued by the learned JMIC, Manali and he is deposing falsely. 17. PW-8, C. Davender Prashad has stated that on 09.11.2006, MHC, Pinki Devi had handed over to him one sealed sample of Charas, NCB-I form, in triplicate and other connected documents to him with a direction to deposit the same at CFSL, Chandigarh and that he deposited those articles at CFSL, Chandigarh on 10.11.2006. He also received receipt from the laboratory and handed over the same to MHC at Police Station, Manali. He has further stated that the case property was not tampered at any stage. Sealed sample of Charas was bearing three seal impressions of ''T'' and three seal impressions of ''H''. He had taken these articles to CFSL, Chandigarh vide RC No.161/06. In his cross-examination, he has denied the suggestion that MHC, Pinki did not hand over sample of Charas to him. He has also denied the suggestion that he had not deposited the sample of Charas at CFSL, Chandigarh and that the sample had been tampered by him. He has deposed that the sample was deposited in the Laboratory in intact position and he obtained receipt from CFSL, Chandigarh. 18. In the present case, the case property was not produced before the Court as per the provisions of Section 52A of the N.D.P.S. Act. Section 52A and subsection (4) reads as under: "52A. Disposal of seized narcotic drugs and psychotropic substances. (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence." 19. In the present case, the prosecution has produced certificate, Ext.PX issued by learned JMIC, Manali, on the application, Ext.PY, under Section 52A of NDPS Act, having been filed by SHO, Police Station, Manali. A perusal of certificate, Ext. PX goes to show that this document has been prepared by learned JMIC, Manali in a slip shod manner with casual approach. In the present case, the prosecution has produced certificate, Ext.PX issued by learned JMIC, Manali, on the application, Ext.PY, under Section 52A of NDPS Act, having been filed by SHO, Police Station, Manali. A perusal of certificate, Ext. PX goes to show that this document has been prepared by learned JMIC, Manali in a slip shod manner with casual approach. The certificate of Magistrate is reproduced as under: "Certified that two white cloth parcel in case FIR No.263/06, dated 8.11.2006 under Section 20 of NDPS Act of P.S. Manali having sealed with eight seals were produced before me by HC Hari Singh, MHC, P.S. Manali and the seals were found intact before opening and after verifying the both packets big and small containing 105 gms Charas and 20 gms of similar substance alleged to be Charas were opened and after having mixed properly, both the packets one representative sample of 20 gms was separately taken and weighed in my presence in the court and sealed with eight seals of "JMIC" being case property and rest of the contraband was put in another parcel and sealed with eight similar seals of "JMIC" which bear my signature and date and thereafter a big packet and the representative sample packet of 20 gms to be retained as case property, returned to HC Hari Singh, MHC PS Manali in the Court and seal was handed over to Shri Prem Chand Negi, Naib Nazir of this Court. Sd/- Judicial Magistrate Ist Class Manali, District Kullu (H.P.) 20. From the certificate issued by the Magistrate it is clear that two packets of Charas were produced before him with eight seals. The nature of seal impression have not been disclosed in this certificate nor number of seals having been affixed on each parcel stand elucidated. Perusal of the statement on oath of PW5, MHC Pinki Devi goes to show that each parcel was having three seal impression of ''H'' and three seal impressions of ''T''. She does not state that each parcel was having eight seals. Therefore, there are vital contradictions in the statement of MHC, Pinki Devi and certificate, Ext. PX about the seals having been affixed on the parcels produced before learned JMIC, Manali for taking representative sample. She does not state that each parcel was having eight seals. Therefore, there are vital contradictions in the statement of MHC, Pinki Devi and certificate, Ext. PX about the seals having been affixed on the parcels produced before learned JMIC, Manali for taking representative sample. It appears that either case property has been tampered or the parcels having been produced before learned JMIC, Manali for taking representative sample do not belong to this case. Hence, certificate Ext. PX does not stand connected with the case property. 21. There is no order with respect to how the case property were dealt with and passed by the Magistrate. Needless to say that the case property was not produced before the Court. 22. Now coming to the sealing of the samples. In the present case, it has come on record that MHC Pinki handed over one sealed sample parcel, NCB-I, in triplicate, samples of seal impression ''H'' and ''T'' to C. Davinder Prasad on 09.11.2006. Davinder Prashad was directed to deposit the same at CFSL, Chandigarh. It has been alleged that sample along-with the relevant documents was deposited at CFSL, Chandigarh by C. Davinder Prashad. He obtained receipt from the Laboratory and handed over the same to MHC, Pinki. The report of CFSL, Chandigarh was received. The report reveals that the contents of the sample were found to be that of Charas. Special report was also prepared by ASI, Lal Chand, which was handed over to Dy. Superintendent of Police, Manali. 23. In the present case, it has also come on record that the alleged recovery was made from Van Vihar, Manali, which is a busy place with lot of hustlebustle and in the month of November, during day time, there might be hundreds of people around. The non-joining of independent witnesses by the prosecution, when the statement of police witnesses do not inspire confidence is fatal to the prosecution case. There are contradictions in the statements of witnesses. PW4, ASI, Lal Chand states on oath that rukka, Ext. PL had been prepared by him, which was sent to Police Station, Manali, through HHC, Uttam Singh. His version stands controverted from the deposition of PW2, C. Rajiv Kumar, who has stated in his cross-examination that rukka had been scribed by him under the dictation of ASI, Lal Chand. PW4, ASI, Lal Chand states on oath that rukka, Ext. PL had been prepared by him, which was sent to Police Station, Manali, through HHC, Uttam Singh. His version stands controverted from the deposition of PW2, C. Rajiv Kumar, who has stated in his cross-examination that rukka had been scribed by him under the dictation of ASI, Lal Chand. Furthermore, ASI, Lal Chand states that police had remained on the spot for about 4 hours and 15 minutes. This fact does not find necessary corroboration from the evidence of PW1, HHC Uttam Singh, who has stated that it took about three hours to conclude proceedings on the spot. Moreover, stand on oath of PW2, C. Rajeev Kumar is that neither he met the wife of the accused at the relevant time nor he had any conversation with her. This version of the witness goes contrary to his statement having been recorded under Section 161 Cr.P.C., 1973 in which it is disclosed by him that he had informed the wife of the accused about his arrest. This part of the statement of witness Rajiv Kumar recorded under Section 161 Cr.PC stands dis-honoured by him on oath. Surprisingly, arrest memo, Ext. PE also discloses that accused did not want to give information about his arrest to anybody else. It is not revealed from arrest memo, Ext.PE that the wife of the accused was informed about his arrest, as is evident from the reading of the statement of witness, Rajiv Kumar, recorded under Section 161 Cr.PC. It appears that there is lack of fair investigation of the case and above noted discrepancies also pin point that involvement of the accused does not stand established beyond shadow of reasonable doubt in this case qua the recovery of incriminating article from his persons in the alleged manner on the spot at Van Vihar. 24. Needless to say that even ASI, Lal Chand has admitted that there is lot of hustle-bustle near the place of alleged occurrence and it is in the heart of Manali. 24. Needless to say that even ASI, Lal Chand has admitted that there is lot of hustle-bustle near the place of alleged occurrence and it is in the heart of Manali. At the same point of time, it has come on record that the newspaper ''Himalaya Kesri'' in which the Charas was found wrapped, was also put in the bulk and it was before putting it into the same polythene envelope from which it was recovered, but in the absence of production of such bulk parcel, the learned JMIC has not found the polythene bag and newspaper Himalaya Kesari in the said bulk parcel. 25. The net result of the above discussion is that in the present case, the statement of the official witnesses do not inspire confidence. As discussed herein-above in these circumstances, the joining of the independent witnesses during day time in a very busy place like Van Vihar, Manali just near the Police Station was incumbent and their non-joining is fatal to the prosecution case. 26. It has been held in K. Prakashan v. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non-consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 27. The Hon''ble Supreme Court in T. Subramanian v. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 28. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415 , the Hon''ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal : "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language'' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 29. Keeping in view the evidence, which has come on record and also taking into consideration the testimonies of the witnesses, this Court finds that it is not reasonably possible to conclude that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. Even after re-appreciating the evidence and the record, we are of the considered view that the case of the prosecution is full of suspicions and certainly suspicions cannot supersede proof, thus, taking into consideration each and every aspect, which has been discussed herein-above, this Court finds that there is no reason to interfere with the well reasoned judgment of acquittal passed by the learned Court below. 30. 30. In view of aforesaid discussion, the present appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, stand(s) disposed of accordingly.