JUDGMENT : Sanjay Kumar Gupta, J. 1. State is aggrieved of the acquittal earned by Lekh Raj S/o Amaru Ram R/o Village Sindi Morha, Tehsil Bani, District Kathua ( for brevity ‘accused’) vide impugned judgment dated 04.07.2014 of learned Special Judge, Kathua, in case FIR No.03/2013 registered in Police Station Bani for the offences under Section 8/20 NDPS Act, therefore, 2. It has been averred that trial court has not properly appreciated the evidence on record. That court below has mis-appreciated the law on the point. That there was enough evidence on record which was sufficient for convicting the accused/respondent, 3. Prosecution case is that on 07.02.2013, ASI Bashir Ahmed along with SGCt. Davinder Singh 493/K, SGCt. Manshah Mohd 232/K, SGCt. Shiv Kumar 299/K and Ct. Des Raj 978/K, were on patrolling in the area of Shaparu Mangihaar and when he along with his companions reached Shaparu at 12:15 PM, one person was found coming from the side of Sindi via Radiant-III Shaparu Road GREF and was carrying one bag brown coloured, who on finding the police party tried to run away. He was followed by him and other police personnel and was apprehended. He disclosed his name as Lekh Raj S/O Amaru Ram of Sindi Morha, Tehsil Bani. The bag was checked and one polythene bag containing two kilograms of charas was recovered from it, which was seized. Out of the seized charas, 50 grams were taken as sample for the purpose of chemical analysis which was sealed on spot and was marked as Mark-A. The accused having committed offence u/s 8/20 NDPS Act, was arrested. The ASI made a report, on the basis of which, FIR No. 03/2013 for offences punishable under sections 8/20 NDPS Act was registered and investigation of the case was entrusted to him. He recorded the statements of the witnesses, got the chemical report of analyst regarding the sample and found offences punishable u/s 8/20 NDPS Act established against the accused and accordingly presented the challan in the Court. 4. Charge was framed against the accused on 04.07.2013 for offence punishable u/s 8/20 NDPS Act. He pleaded not guilty and opted for trial. Prosecution was directed to produce evidence. They produced all the listed witnesses namely Davinder Singh, Shiv Kumar, Manshah Mohd., Des Raj, Bashir Ahmed, Jai Singh Naib Tehsildar, Abdul Gani Bhat and Anayat Ali. 5. 4. Charge was framed against the accused on 04.07.2013 for offence punishable u/s 8/20 NDPS Act. He pleaded not guilty and opted for trial. Prosecution was directed to produce evidence. They produced all the listed witnesses namely Davinder Singh, Shiv Kumar, Manshah Mohd., Des Raj, Bashir Ahmed, Jai Singh Naib Tehsildar, Abdul Gani Bhat and Anayat Ali. 5. Court below after conducting full trial has observed that prosecution case is full of contradictions; cardinal principles of laws have not been followed by I/O during investigation. The Malkhna registered has not been produced. 6. Since there was no representation on behalf of respondent-accused, we have heard learned counsel for the appellant-State and with the assistance rendered by State counsel; we have gone through the evidence on record. 7. We have considered all aspects of matter and law on the point. 8. The scope of power of appellate court in case of acquittal has been highlighted by Apex Court in AIR 2014 SC 2200 in case titled ‘Muralidhar alias Gidda & anr. v State of Karnatka’ [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014], which read as under :- 10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years. 11. 11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5], Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. In ‘Ghurey Lal v State of U.P.’ (2008) 10 SCC 450 , the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above.” 9. Before appreciating the evidence on record and judgment of court below it is appropriate to discuss the brief resume of the prosecution evidence which reads as under is as under:- PW-Davinder Singh has stated that in 2013, he was posted in Police Station, Bani. On 07.02.2013, he along with Shiv Kumar Manshah Mohd and Ct. Des Raj were on patrolling along with ASI Bashir Ahmed and at about 12:15 PM, while they were checking and frisking at Shaparu, accused came and tried to run away on seeing the police, however, they apprehended him and recovered one brown coloured bag from him and from the said bag, one polythene bag containing charas was found. ASI arrested the accused and prepared the papers, seizure memo and forwarded docket through Ct. Des Raj to the police station for registration of the FIR. Thereafter, SHO came on spot and he recorded their statements and completed other formalities. He has admitted the contents of the seizure memo EXTP-1 as well as seizure memo EXTP-1/1 and also memo of supurdnama EXTP-1/2. Des Raj to the police station for registration of the FIR. Thereafter, SHO came on spot and he recorded their statements and completed other formalities. He has admitted the contents of the seizure memo EXTP-1 as well as seizure memo EXTP-1/1 and also memo of supurdnama EXTP-1/2. He was admitted the contents of the arrest memo of the accused EXTP-1/3, search memo EXTP-1/4 and his statement was recorded by the police on 07.02.2013. He has identified the charas, which was shown to him in the Court along with bag. In cross-examination, he states that they left Bani in a vehicle for Shaparu and they reached there in 45 minutes. He cannot say about the distance between Bani and Shaparu. They left police station at 10:00/11:00 AM and when they left police station, they conducted checking at two/three places and thereafter they reached Shaparu. Their party covered some distance on foot, whereas, some by vehicle. When they left Bani, they boarded a bus, but he does not know the place where they alighted from it. They laid naka on the spot at 12:00 PM. He has denied the suggestion that currency of Rs. 100 and one Nokia phone 5130 was recovered from accused. ASI weighed charas on spot and found its weight as two kilograms. Weighing balance was brought by ASI, but he doest no know where from he brought the same. He doest not remember whether the weighing balance was electronic or otherwise. He also cannot say whether the weights used were of 100 grams, or 200 grams, or 1kg, or 2kg or 5kg. Sample of 50 grams was taken by Bashir Ahmed, ASI, who sealed the same. He does not know from whom ASI Bashir Ahmed obtained the seal used for sealing the contraband. They brought accused along with charas in gypsy to Bani. At the time of occurrence, civilians were present on spot. After the sample was taken, it remained in possession of ASI Bashir Ahmed. PW-Shiv Kumar stated that accused is known to him. On 07.02.2013, he along with ASI Bashir Ahmed, Davinder Singh, Manshah Mohd and Ct. Des Raj were on patrolling. Accused was proceeding on foot from the side of Fatehpur Sindi and on seeing the police, he tried to run away. He was carrying one brown coloured bag and when police apprehended him, two kilograms of charas was recovered from the bag. Des Raj were on patrolling. Accused was proceeding on foot from the side of Fatehpur Sindi and on seeing the police, he tried to run away. He was carrying one brown coloured bag and when police apprehended him, two kilograms of charas was recovered from the bag. Accused was arrested. Seizure memo of charas was prepared. Memo of personal search as well as arrest memo was prepared. Docket was forwarded to police station for registration of FIR by ASI Bashir Ahmed through Ct. Des Raj. SHO came on spot, who seized the documents prepared by ASI Bashir Ahmed on spot and prepared a separate seizure memo. ASI Bashir Ahmed took 50 grams of charas separately for chemical analysis and on the said packet, he put mark A. SHO recorded the statements on spot. He has identified his signatures on EXTP-1 (seizure memo of charas), EXTP-1/1 (seizure of documents), EXTP-1/2 (memo of supurdnama) and EXTP-1/3 (arrest memo of accused). He has also produced one ring. He has also identified bag as well as charas in the court. In cross-examination, he says that they left at 11:30 AM for patrolling in a bus from Bani and alighted at Shaparu, where accused was apprehended. Patrolling was not conducted anywhere between Bani and Shaparu. They had not laid naka, but were on patrolling. They saw the accused on the road when the accused ran away. All of them followed him and he was apprehended by Davinder Singh. After the accused was apprehended his bag was opened by ASI Bashir Ahmed. The bag was not having any specific mark. The bag was shown to the witness in the court and DIES is written on it. Some portion of the bag is torn. He does not remember, who had weighed the seized charas. He cannot say from where the weighing balance was brought. He also does not know the kind of the weighing balance. He also does not know whether the weighing balance was seized or not. He cannot say about the colour of the polythene bag in which charas was kept. Seal was with ASI Bashir Ahmed, who handed over the same to him. After completing the formalities on spot, they returned back to police station in a light motor vehicle, but he cannot say whether that light motor vehicle was a matador, gypsy, or car, or some other vehicle. Seal was with ASI Bashir Ahmed, who handed over the same to him. After completing the formalities on spot, they returned back to police station in a light motor vehicle, but he cannot say whether that light motor vehicle was a matador, gypsy, or car, or some other vehicle. He cannot say where the seized material was kept when they came to the police station. PW-Manshah Mohd. has stated that on 07.02.2013, he, Shiv Kumar, Des Raj, Davinder Singh went along with ASI Bashir Ahmed for patrolling and during patrolling at 12:15 PM, when they reached Shaparu, they found a person, who on seeking the police party, tried to run away. They followed him and apprehended him, who disclosed his name as Lekh Raj. He was carrying one brown coloured bag, which was searched and one polythene bag containing two kilograms of charas was recovered from it, which was seized by ASI and thereafter 50 grams were taken as a sample from the said seized charas for chemical analysis, which was sealed. Thereafter a docket was prepared for registration of FIR, which was forwarded to Police Station, Bani through Ct. Des Raj. Later on SHO Anayat Ali came on spot and prepared the sit plan and also conducted other formalities in his presence. The ring was kept on supurdnama of Shiv Kumar vide EXTP-1/2, which bears his signature in English. His statement was recorded. He has identified the accused in the Court and has also identified the seized charas as well as the bag. On cross-examination, he states that on the date of occurrence, they left for patrolling at 7:00 AM. He does not know whether entry was made in roznamcha regarding patrolling. Before they reached the spot of occurrence i.e. Shaparu, they conducted patrolling at Mangihaar, Gathi Morh, etc. The place of occurrence is about 17 kilometers from Bani. They left police station and reached the spot of occurrence on foot and it took them about five hours to reach there. They were proceeding on the side of road, when they saw the accused, who tried to run away. Accused was apprehended by Davinder Singh and the bag was searched and weighed by ASI. Weighing balance was already with ASI, which was made of iron and a local made. The weights were of 50 grams, 100 grams, 1kg and 2kgs. They were proceeding on the side of road, when they saw the accused, who tried to run away. Accused was apprehended by Davinder Singh and the bag was searched and weighed by ASI. Weighing balance was already with ASI, which was made of iron and a local made. The weights were of 50 grams, 100 grams, 1kg and 2kgs. He does not know whether ASI had seized the weighing balance or not. They reached back to police station at about 10:00 PM. SHO remained on spot from 2:30 PM to 9:00 PM and completed the formalities. PW-Des Raj has stated that on 07.02.2013, he went along with ASI Bashir Ahmed, Davinder Singh, Shiv Kumar and Manshah Mohd for patrolling and checking. They reached Shaparu road at about 12:15 PM. When they reached there, they found a person coming from the side of Fatehpur Sindi, who was in possession of one brown coloured bag. When he saw the police party, he tried to run away and he was apprehended by the police. On inquiry, he disclosed his name as Lekh Raj and on checking his bag, one polythene bag inside the said bag containing two kilograms of charas was recovered and seized by ASI Bashir Ahmed. He prepared a written report and forwarded the same to the Police Station. He handed over the same to SHO, Police Station, Bani, on which FIR was registered. He came on spot along with SHO, who conducted rest of the formalities and recorded his statement. The seized material was shown to the witness and he stated that it is the same which was recovered. On cross-examination, he says that they left at 10:00/11:00 AM for patrolling in a gypsy. They checked the vehicles enroute. He cannot say the number of the vehicles which they checked. They laid naka at Shaparu at 12: 15 PM and they checked all the vehicles which were passing through the said naka. They conducted checking for about 15/20 minutes. There are two houses of Gujjars near the spot of occurrence. When the accused ran away, he was apprehended by the ASI Bashir Ahmed and he opened the bag and conducted search. Polythene, which contained the charas, was blue coloured. Weighing balance for weighing the charas was brought by ASI with himself, which was made of iron and was of common kind. When the accused ran away, he was apprehended by the ASI Bashir Ahmed and he opened the bag and conducted search. Polythene, which contained the charas, was blue coloured. Weighing balance for weighing the charas was brought by ASI with himself, which was made of iron and was of common kind. After the sample was sealed, ring used for sealing was retained by ASI Bashir Ahmed. PW-Bashir Ahmed has stated that on 07.02.2013, they left police station, Bani at 7:00 AM along with Davinder Singh, Shiv Kumar, Manshah Mohd and Des Raj, for patrolling. They reached Shaparu while patrolling and when they reached there, they found one person namely, Lekh Raj coming from the side of Sindi to Shaparu, who on finding the police party tried to run away. He and other employees followed him and apprehended him. He enquired his name. Accused was having a bag, which was searched and on search, charas was recovered, which was later on weighed and weight of the charas was found two kilograms, out of which 50 grams were taken as sample for chemical analysis. Accused was arrested and searched. One docket for registering the FIR was prepared, which was sent to police station through Ct. Des Raj. SHO came on spot and he seized the documents prepared by him. Rest of the formalities was completed by the SHO. He has identified his signatures on the documents EXTP-5, EXTP-1, EXTP-1/3 and EXTP-1/4 and also admitted the contents of the said documents to be correct. On cross-examination, he says that on the date of occurrence, he was in charge of the patrolling party. He made entry in the roznamcha. He has seen EXTP-5 and stated that there is no mention about the entry of report in the rozmancha. They reached Shaparu at about 12:00 PM and had left police station at 7:00 AM. They reached there while patrolling on foot. On the day of occurrence during the patrolling, they did not check any matador, bus or truck. They had no information about the accused. The place where they were standing was a public place and two houses of Gujjars were near the place wherefrom the accused was arrested. He conducted search of the accused, but did not give him option regarding search by a Gazetted Officer or by a Magistrate. They had no information about the accused. The place where they were standing was a public place and two houses of Gujjars were near the place wherefrom the accused was arrested. He conducted search of the accused, but did not give him option regarding search by a Gazetted Officer or by a Magistrate. When accused tried to run away, he was followed and all members of the party surrounded the accused and apprehended. He opened the bag of the accused. He also conducted the weight of the charas. Weighing balance was in the IO Kit, which he was carrying. He has not seized that weighing balance nor the same was put on supurdnama of anyone. For conducting the weight, weights of 50 grams, 100 grams, 200 grams, 500 grams and one kilogram were with him. When he opened the kit and conducted the weight of the charas, all these employees were standing there. He has denied the suggestion that the bag was opened by Davinder Singh. PW-Jai Singh is the Naib Tehsildar. He says that he was posted as Naib Tehsildar at Bani on 11.02.2013. Police party brought an already sealed packet for resealing and produced before him and at their request, he resealed the same and issued the certificate along with authority permitting the FSL to open the seal vide EXTP-6. PW-Abdul Gani Bhat, Assistant Scientific Officer, FSL Jammu has stated that on 15.02.2013, he received letter No.FSL 2013/828-30/SDPO dated 13.02.2013, along with one sealed packet-A through ASI Bashir Ahmed No. 805824/EXJ in connection with case FIR No. 03/2013 under section 8/20 NDPS Act of Police Station, Bani. On examination, the exhibit was found sealed with eight seals intact. The said sealed packet-A was enclosed within cloth bearing eight intact seals out of which 4 seals tallied with specimen seal impression forwarded by Executive Magistrate First Class, Basohli, and 4 seals tallied with specimen seal impression forwarded by SDPO. On opening, it was found to contain greenish coloured material weighing 50 grams, which was given exhibit No. GJ 646/2013 by him in the lab. He conducted the various chemical and chromatographic examination and it was found that the exhibit No. GJ 646/2013 contained Charas. Therefore, in his examination narcotic substance i.e. Charas was found in the sample. Certificate regarding the examination and the opinion was forwarded to SDPO by him. He has seen the certificate which bears his signatures. He conducted the various chemical and chromatographic examination and it was found that the exhibit No. GJ 646/2013 contained Charas. Therefore, in his examination narcotic substance i.e. Charas was found in the sample. Certificate regarding the examination and the opinion was forwarded to SDPO by him. He has seen the certificate which bears his signatures. The contents of which are true and correct. It is exhibited as EXT-P7. On cross examination, he stated that on receipt of the packet on 15.02.2013, he conducted the examination of the sample so sent and prepared the report EXTP7 on 06.05.2013. He does not remember the exact date on which he conducted the examination, but the examination of the sample was conducted in the month of May. They do not conduct the quantitative analysis in order to find the ratio of the charas, but in their examination, they determined whether the sample contained charas or not. PW-Anayat Ali, Sub Inspector has stated that on 07.02.2013, he was posted as SHO, Police Station, Bani. On the said date, ASI Bashir Ahmed and other employees had gone to Shaparu for patrolling/checking. During checking, ASI recovered two kilograms of charas from accused Lekh Raj at about 12:15 PM, and forwarded a docket for registration for FIR to the Police Station through Ct. Des Raj, on which FIR No. 3/2013 was registered u/s 8/20 NDPS Act. He conducted the investigation of the case and proceeded to the spot where ASI along with other employees were present. He seized the material and other documents regarding search and arrest and prepared a seizure memo and on the identification of ASI, he prepared site plan. Seal i.e. ring was put on the supurdnama of Shiv Kumar. Statements of witnesses were recorded on spot and after completing the formalities went to the police station, Bani and accused was kept in the lock up. Out of the seized charas, 50 grams were taken as sample and sealed separately by the ASI, which was handed over to the Munshi of the police station for keeping the same in malakhana. On completion of the investigation, he found offences punishable u/s 8/20 NDPS Act established against the accused. He has admitted the correctness of the documents EXTP-8/1, EXTP-1/1 & EXTP-1/2. In cross-examination, he says that Ct. Des Raj came to the police station along with the docket for registration of FIR at 1:30 PM. On completion of the investigation, he found offences punishable u/s 8/20 NDPS Act established against the accused. He has admitted the correctness of the documents EXTP-8/1, EXTP-1/1 & EXTP-1/2. In cross-examination, he says that Ct. Des Raj came to the police station along with the docket for registration of FIR at 1:30 PM. He left police station at 1:40 PM and reached the spot at 2:30 PM. He went there in official gypsy. Charas was already weighed and sample had also already been taken and sealed. After completing all these formalities, ASI Bashir Ahmed had prepared docket for registration of FIR. He recorded the statement of ASI. He left the spot after completing all the formalities at 10:00 PM for police station, Bani. He cannot say about the mode of transport of the patrolling party, which left in the morning. Whether they went there in vehicle or on foot, he cannot say. He had given only two packets for keeping in the malkhana. No form was deposited in the malkhana. Sample packet was handed over to ASI on 14.02.2013 for depositing the same in FSL, which he deposited there on 15.02.2013. Two packets which were deposited in malkhana were not sealed with the stamp of SHO of the police station. Statements of the prosecution were put to the accused while recording the statement u/s 342 Cr.P.C. He had denied his involvement in the alleged crime and has submitted that the witnesses, who are police witnesses, have implicated him in a false case. He is a labourer and a farmer. He was grazing his cattle. Police came running and caught him. Some unidentified person had fled from that area, as the police could not apprehend them, they arrested him. No proceeding was conducted on spot. Number of people gathered there. He is an innocent and had been implicated falsely. 10. In all NDPS Act cases investigation get completed approximately at spot, except to reseal the samples and obtaining of FSL report. All offences under NDPS are heinous in nature and provide severe punishment and so some safeguards have been provided in Act. There are certain mandatory provisions of law, which investigating officer has to follow while conducting investigation. 11. 10. In all NDPS Act cases investigation get completed approximately at spot, except to reseal the samples and obtaining of FSL report. All offences under NDPS are heinous in nature and provide severe punishment and so some safeguards have been provided in Act. There are certain mandatory provisions of law, which investigating officer has to follow while conducting investigation. 11. Learned trial Court on appreciation of evidence on record observed that, there is material contradiction with regard to leaving of petrol party on spot, the mode of going on spot and place of spot. Malkhna registered has not been produced. There is also contradictions in statements of witnesses with regard to use of weighing machine. 12. We have carefully gone through the statements of prosecution witnesses of patrol party in this regard. 13. PW-Davinder Singh stated that they left Police Station, Bani, 10:00/11:00 AM in a vehicle for Shaparu and reached there in 45 minutes. They also conducted checking at two/three places before reaching Shaparu and laid naka on spot at 12:00 PM. He does not know the place where they alighted from vehicle. He has further stated that weighing balance was brought by PW-Bashir Ahmed, but he does not know where from he brought the same. He does not remember whether the weighing balance was electronic or otherwise. Civilians were present on spot, but none of them were kept as witness. Sample remained in possession of ASI Bashir Ahmed. 14. PW-Shiv Kumar has stated that they left Police Station, Bani, at 11:30 AM for patrolling in a bus from Bani and alighted at Shaparu, where accused was apprehended. Patrolling was not conducted anywhere between Bani and Shaparu. They had not laid naka, but were on patrolling. All of them followed the accused and he was apprehended by PW-Davinder Singh. 15. PW-Manshah Mohd stated that on the date of occurrence, they left for patrolling at 7:00 AM. He does not know whether entry was made in roznamcha regarding patrolling. Before they reached the spot of occurrence i.e. Shaparu, they conducted patrolling at Mangihaar, Gathi Morh, etc. The place of occurrence is about 17 kilometers from Bani. They left police station and reached the spot of occurrence on foot and it look them about five hours to reach there. Accused was apprehended by PW-Davinder Singh and the bag was searched and weighed by ASI namely Bashir Ahmed. 16. The place of occurrence is about 17 kilometers from Bani. They left police station and reached the spot of occurrence on foot and it look them about five hours to reach there. Accused was apprehended by PW-Davinder Singh and the bag was searched and weighed by ASI namely Bashir Ahmed. 16. PW-Des Raj stated that they left at 10:00/11:00 AM for patrolling in a gypsy. They checked the vehicles en-route, however, cannot say how many vehicles were checked. They also checked all the vehicles which were passing through the naka at Shaparu. He further stated that accused was apprehended by ASI Bashir Ahmed and he opened the bag and conducted search. Weighing balance for weighing the charas was brought by ASI with himself. After the sample was sealed, ring used for sealing was retained by ASI Bashir Ahmed. PW-Bashir Ahmed was the incharge of the patrolling party. He made entry in the roznamcha. He has seen EXTP-5 and stated that there is no mention about the entry of report in the rozmancha. They left police station 7:00 PM and reached Shaparu at about 12:00 PM while patrolling on foot. He has further stated that they did not check any matador, bus or truck on the day of occurrence during the patrolling. Accused was searched by this witness, however, no option regarding search by a Gazetted Officer or by a Magistrate was given to the accused. When accused tried to run away, he was followed and all of them surrounded the accused and apprehended. 17. So the finding of court below with regard to contradiction in statements of prosecution witnesses with time of departure from police station is not perverse in nature. 18. Further from perusal of file it is evident that contraband has been seized on7.2.2013 and samples were taken and sealed on spot, but it has been got resealed from magistrate on 11.2.2013. There is no evidence as to where these samples remained for intervening period. 19. PW-Jai Singh is the Naib Tehsildar and he has only resealed the seized packet. Cr. Appeal No.12 of 2015 Page 15 of 17 20. Learned trial Court further observed that PW-Anayat Ali, IO, has stated that he has handed over the sample to Munshi for keeping the same in malkhana for safe custody, but neither the said Munshi has been examined nor the malkhana register was produced in the court. Cr. Appeal No.12 of 2015 Page 15 of 17 20. Learned trial Court further observed that PW-Anayat Ali, IO, has stated that he has handed over the sample to Munshi for keeping the same in malkhana for safe custody, but neither the said Munshi has been examined nor the malkhana register was produced in the court. PW Anayal Ali SI I/O has stated that out of the seized charas, 50 grams were taken as sample and sealed separately by the ASI, which was handed over to the Munshi of the police station for keeping the same in malakhana. But no Malkhna receipt or copy of register of Malkhna has been annexed in file. Court below has relied upon 2005 (1) Acquittal 438 SC case titled State of Rajashan v/s Gurmail Singh, wherein it held non production of Malkhana Register is loophole in persecution case. Further court has held that I/O has stated that he handed over the samples to Munshi for keeping in malkhana for safe custody. But said Munshi has not been cited as witnesses nor Malkhana register has been produced. Court below has relied upon Pardeshi Ram v. State of MP reported in 2011 (1) CRIMES (HC) 329. 21. Both defects in prosecution case as discussed by Court below and law on the point are correct. 22. Further I/O has not prepared CFSL (Central Forensic Science Laboratory ) Form at the time of seizure and sealing of contraband. It has to be filled-up and deposited in malkhana of concern police station along with sample/s for onward submission to FSL. It is one of the safeguard which could ensure sanctity of seal was affixation of specimen of the seal on the CFSL form which had to be done simultaneously with sealing of parcels. It was for the prosecution to prove that not only the case property was duly sealed with the particular seals and was duly deposited in the Malkhana untempered but it was also incumbent on the prosecution to show that the samples which had been duly sealed, remained intact till they reached the office of CFSL. In proving these facts, it was necessary for the prosecution to prove that the CFSL form containing the specimen seals which was duly filled in at the time of taking the sample also remained intact and it reached the office of CFSL along with the samples. In proving these facts, it was necessary for the prosecution to prove that the CFSL form containing the specimen seals which was duly filled in at the time of taking the sample also remained intact and it reached the office of CFSL along with the samples. Same view has been taken in a large number of cases decided by this Court and other Courts. 23. In Radha Kishan v. State reported in 87 (2000) DLT 106, the Court has explained the importance of ensuring that the FSL Form is duly sent with the sample for testing and held as under:- "26. It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central forensic Science laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instant case, this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of tampering of seals on sealed packets after seizure anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/police station." 24. One major defect in prosecution is that, it is case of prosecution that ASI Bashir Ahmed was in charge of Naka party; he on apprehending the accused on relevant day, firstly prepared seizure memo EXTP/1; then he sent a docket EXTP-5 for registration of FIR. One major defect in prosecution is that, it is case of prosecution that ASI Bashir Ahmed was in charge of Naka party; he on apprehending the accused on relevant day, firstly prepared seizure memo EXTP/1; then he sent a docket EXTP-5 for registration of FIR. On the basis of docket FIR No.3/2013 for offences u/s 8/20 of NDPS Act was registered and investigation was started by SI Anayat Ali SHO concerned, who went on spot and prepared seizure memo of document prepared by ASI Bashir Ahmed. So seizure memo EXTP/1 prepared by ASI Bashir Ahmed should not bear FIR number and offence. But in present case EXTP/1 bears FIR no.3/2017 and offences u/s 8/20 of NDPS Act. 25. In 2003 (1) JUDICIAL REPORTER (CRIMINAL) 534, the Hon’ble Supreme Court of India in case titled State of Orissa v. Sitansu Sekhar Kanungo, has held as under:- “Narcotics drugs and psychotropic substance Act----section 21 and 57 –Evidence Act 1872 section 3 – Seizure lists ought to have been prepared before the lodgment of FIR and as such question of mentioning of FIR no. on seizure list would not arise at all –indication of case number in the seizure lists has resulted that seizure lists cannot be but ascribed to be manipulated in the document which is not permissible under law. Para 4 –The ld. Advocate appearing in support of appeal, however, rather confidently stated that since the provision of S.57 of Act are now settled to be only directly and not mandatory in nature, the question of non-production of Malkhana Register though vital but the success of case does and cannot depend upon it. It may be a mere irregularity but cannot go to the root of prosecution which make the prosecution vulnerable. At the first blush the argument seems to be rather convincing but on closure scrutiny however, it lost its efficacy by the reason of fact of there being no factual support therefore, the High Court has dealt with the mater purely on factual score and conclude adversely by reason of non-production of Malkhana Register coupled with other set of facts as argued before High Court. The doubt which sprang up as regard the seizure list admittedly cannot be brushed aside. The doubt which sprang up as regard the seizure list admittedly cannot be brushed aside. The seizure ought to have been prepared before lodgment of FIR and as such, question of mentioning of FIR on the seizure list would not arise at all but, in the contextual facts the indication of case number in the seizure list has resulted in the submission of ld. Advocate for defense before the High Court as also before this court this-that nothing on the seizure list which cannot be prescribed manipulation on the documents under necessary provision of law. The High Court though not placed any reliance apparently thereon but obviously the same had its due impact and affect on the court since the last paragraph the High Court did speak of other factor highlighted coupled non-production of Malkhana Register that have given fatality to the prosecution. This observation of high Court by itself connotes that High Court has taken note of it with due particulars and it is on the issue of facts that High Court has felt that there would be justice trumpeted if an order is passed in favour of the prosecution.” 26. In view of what has been discussed above, we are of considered opinion that prosecution has not proved its case beyond reasonable doubts. Therefore, we do not find any infirmity of law and facts in the judgment of Court below, which is upheld accordingly.