JUDGMENT : Dharam Chand Chaudhary, J. 1. State of Himachal Pradesh aggrieved by the judgment dated 29.8.2011, passed by learned Special Judge, (Fast Track Court) Kullu, Himachal Pradesh, in Sessions Trial No. 44 of 2010 whereby the respondent-accused (hereinafter referred to as the accused) has been acquitted of the charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’ in short), has preferred this appeal for quashing the same on the grounds, inter-alia, that the evidence as has come on record by way of the testimony of PW-1 HHC Uttam Singh and by that of the I.O. PW-6 HC Jamal Deen as well as lady Const. Veena Devi (PW-2) has not been appreciated in its right perspective. All of them have supported the prosecution case in one voice qua the manner in which the contraband, allegedly charas weighing 910 grams, was recovered from the backpack, the accused was holding in her right hand when nabbed by the Manikaran Police at Jai Nullah, while coming from village Katagla side. The same, however, has not been appreciated in its right perspective and to the contrary the findings acquitting the accused of the charge framed against her under Section 20 of the NDPS Act were based on hypothesis, conjectures and surmises. The non-joining of independent persons to witness the search and seizure has heavily weighed with trial Court irrespective of PW-1 HHC Uttam Singh and PW-2 LC Veena Devi have categorically stated that the place of recovery being isolated and secluded one, no one was available nearby for being associated as witness and the I.O. PW-6 HC Jamal Deen had to associate the accompanying police officials PW-1 HHC Uttam Singh and HHC Hari Singh. PW-1 HHC Uttam Singh has proved the entire prosecution case. Learned trial Court, however, did not appreciate the same and proceeded to acquit the accused of the charge taking into consideration the contradictions which were minor in nature and bound to come in the statements of the witnesses with the passage of time. The impugned judgment, as such, has been sought to be quashed and set aside with further prayer that the accused be punished in accordance with law for the offence punishable under Section 20 of the NDPS Act. 2. The impugned judgment, as such, has been sought to be quashed and set aside with further prayer that the accused be punished in accordance with law for the offence punishable under Section 20 of the NDPS Act. 2. Accused is resident of Village Nihri, PO Sarala, Sub Tehsil Sainj under Police Station Bhuntar, District Kullu, H.P. On 20.2.2010, the I.O. PW-6 HC Jamal Deen accompanied by PW-1 HHC Uttam Singh and HHC Hari Singh of PP Manikaran under PS Sadar Kullu was on his way to Village Katagla from Jainagar side in connection with patrol duty on foot. Around 7:30 PM, they spotted the accused at Jai Nullah coming from Village Katagla side in moonlit night. On seeing the police, she started walking briskly and also got perplexed. Her conduct of such nature, has raised suspicion in the mind of the I.O. that she may be in possession of some narcotic drug or psychotropic substance. She, therefore, was asked to stop. Her antecedents were ascertained. She was holding one backpack (Ext. P-2) in her right hand. She was trying to throw the same away in valley side, however, the I.O. asked her to show the same to him. Being an isolated and secluded place and no one could be found available nearby for being associated as independent witness, PW-6 HC Jamal Deen had associated PW-1 HHC Uttam Singh and HHC Hari Singh as witnesses and in their presence, consent of the accused qua search was obtained vide memo Ext. PW-1/A. The I.O. offered his own search vide memo Ext. PW-1/B to the accused, however, nothing incriminating was available with him. The backpack Ext. P-2 had three parts (pockets). From the outer pocket, voter identity card Ext. P-3 whereas in the second pocket two rolls of khakhi coloured adhesive tape Ext. P-4 and from the 3rd pocket/bigger part thereof, one jacket Ext. P-5, ladies suit Ext. P-6, white coloured polythene envelope Ext. P-7, small polythene envelopes 18 in number Ext. P-8 were recovered. On opening of polythene envelope Ext. P-7, charas Ext. P-9 was recovered therefrom. The same was wrapped and found 910 grams in weight. The articles recovered from the backpack were kept in the same sequence in which the same were taken out of it. The backpack was, thereafter wrapped in a white coloured cloth which was sealed with 8 impressions of seal “R”. NCB-1 form Ext. P-7, charas Ext. P-9 was recovered therefrom. The same was wrapped and found 910 grams in weight. The articles recovered from the backpack were kept in the same sequence in which the same were taken out of it. The backpack was, thereafter wrapped in a white coloured cloth which was sealed with 8 impressions of seal “R”. NCB-1 form Ext. PW-5/B was filled in triplicate, sample of seal “R” Ext. PW-1/C was obtained separately on a piece of cloth. The parcel containing the recovered charas was taken into possession vide seizure memo Ext. PW-1/D. A copy thereof was supplied to the accused free of costs. Since on the recovery of charas the accused was found to have committed an offence punishable under Section 20 of the NDPS Act, therefore, rukka Ext. PW-6/A was prepared and forwarded to PS Kullu through PW-1 HHC Uttam Singh for registration of case against her. On the basis of rukka, FIR Ext. PW-7/A was recorded. The spot map Ext. PW-6/B was prepared. The accused was interrogated and the statements of the witnesses recorded under Section 161 Cr.P.C. The accused was apprised about the offence she committed and the provision of sentence under the NDPS Act provided therefor and was thereafter arrested vide memo Ext. PW-2/B. The information qua her arrest was given to her brother Sangat Ram as per endorsement made on Ext. PW-2/B. Lady Const. Veena Devi (PW-2) was summoned from PS Kullu. She conducted the personal search of the accused vide memo Ext. PW-2/A. 3. On the completion of investigation on the spot, the police party left for the Police Station. PW-1 HHC Uttam Singh met the I.O. PW-6 HC Jamal Deen in the Police Station and handed over the case file to him. The columns of the documents prepared on the spot were completed. The case property was produced before SHO Sanjeev Chauhan (PW-7), who resealed the same with 8 impressions of seal “K”. PW-7 SHO Sanjeev Chauhan has also completed the relevant columns of NCB-I form and thereafter entrusted the case property to MHC Ram Krishan, PS Kullu, who entered the same in malkhana register vide entries Ext. PW-5/A and retained in his safe custody in the malkhana. The case property was sent to FSL Junga by PW-5 Ram Krishan through Const. Sunil Kumar (PW-3) vide RC Ext. PW-3/A on 22.2.2010. PW-5/A and retained in his safe custody in the malkhana. The case property was sent to FSL Junga by PW-5 Ram Krishan through Const. Sunil Kumar (PW-3) vide RC Ext. PW-3/A on 22.2.2010. The I.O. PW-6 HC Jamal Deen had prepared the special report Ext. PW-4/A and delivered the same to Addl. Superintendent of Police, Kullu on 21.2.2010. On the completion of investigation and on the receipt of chemical examiner’s report Ext. PW-6/D, PW-7 SHO Sanjeev Chauhan has prepared the Challan and filed in the Court. 4. Learned trial Judge, on the basis of the prosecution case detailed in the Challan and documents annexed thereto has prima-facie found a case under Section 20 of the NDPS Act made out against the accused and as such charge against her was framed accordingly. She, however, pleaded not guilty to the charge. 5. The prosecution, in order to sustain the charge against her has examined 7 witnesses in all. As noticed supra, the material prosecution witnesses are PW-1 HHC Uttam Singh and the I.O. PW-6 HC Jamal Deen as well as PW-2 LC Veena Devi. The remaining witnesses are police officials, hence, formal as they remained associated during the investigation of the case in one way or the other. 6. The accused in her statement recorded under Section 313 Cr.P.C. has denied all the incriminating circumstances appearing against her in prosecution evidence either being incorrect or for want of knowledge. According to her, she has been falsely implicated in this case and the witnesses being police officials have also deposed against her falsely. She, however, opted for not producing any evidence in her defence. 7. Learned trial Judge, on appreciation of the evidence and considering the arguments addressed on both sides though has rejected the plea qua non-compliance of Section 50 of the NDPS Act raised in her defence and rightly so because being a case of alleged recovery of the charas from the backpack, the accused was holding in her right hand for conducting search thereof her option within the meaning of Section 50 of the NDPS Act was not required to be obtained. The learned trial Judge, has already taken into consideration the law laid down by the Apex Court qua this aspect of the matter, hence it is not deemed proper to load this judgment by reproducing the same. The learned trial Judge, has already taken into consideration the law laid down by the Apex Court qua this aspect of the matter, hence it is not deemed proper to load this judgment by reproducing the same. This part of the impugned judgment has even attained finality because accused has not assailed the findings so recorded against her any further by way of appeal. 8. Learned trial Judge, however, not persuaded with the prosecution case that though the efforts were made to associate independent witnesses, however, the spot being isolated and secluded place, no one was available there for being associated as independent witness. The contradictions in the statements of material prosecution witnesses PW-1 HHC Uttam Singh and PW-6 HC Jamal Deen noticed in the impugned judgment were held to have gone to the very root of the prosecution case, the prosecution, as such, has failed to prove its case against the accused beyond all reasonable doubt and also that from the evidence available on record two possible views emerge and taking note of the settled legal principles the view favourable to the accused was adopted and she was given the benefit of doubt. As a result thereof, she was acquitted of the charge framed against her. 9. In these circumstances, the only question which has engaged our attention is as to whether the trial Court did not appreciate the evidence available on record in its right perspective nor the contradictions in the prosecution evidence, as noticed, were of such a nature so as to discredit the recovery of charas from the possession of the accused and that the findings of her acquittal from the charge are not legally and factually sustainable. 10. The adjudication of this question needs reappraisal of the evidence available on record. 11. As noticed supra, in this case no one has been associated as independent witness to witness the search and seizure and the explanation therefor as has come in the statement of I.O. PW-6 HC Jamal Deen and in that of PW-1 HHC Uttam Singh as well as documentary evidence, particularly rukka Ext. PW-6/A, is that the spot being isolated and secluded, no one was available nearby for being associated as a witness. The explanation as has come in the evidence is plausible or not need reappraisal of the evidence. PW-6/A, is that the spot being isolated and secluded, no one was available nearby for being associated as a witness. The explanation as has come in the evidence is plausible or not need reappraisal of the evidence. Nothing has come in the examination-in-chief of PW-1 HHC Uttam Singh except that though efforts were made to find out someone for being associated as independent witness, however, the spot being isolated and secluded, no one was available. Since PW-1 HHC Uttam Singh was present on the spot, therefore, had the I.O. made any effort to associate independent witnesses, the same could have been traced. Therefore, to our mind, the I.O. did not make any effort to associate someone as independent witness and in order to fill up the lacunae in the prosecution case falsely made mention in the documents i.e. rukka Ext. PW-6/A that the spot being isolated and secluded, no one was available nor could be associated as independent witness. 12. While in the witness-box, I.O. PW-6 HC Jamal Deen has stated that the accused was apprehended at isolated place, therefore, he had associated HHC Uttam Singh and Hari Singh as witnesses. Nothing has come in his statement that though efforts were made but no one could be traced out for being associated as independent witness. Interestingly enough, the present is not a case where it can be said that accused was nabbed during odd hours, as it was 7:30 PM and had the efforts been made by the IO, the Priest from Jainu temple situated at Jai Nullah itself could have been called because as per the version of the I.O. in his cross-examination, there is provision of electricity in that temple and the Priest always remains present there. Though, he has clarified that a small child used to stay in the temple, however, it is difficult to believe so for the reason that in a temple situated in Jai Nullah, one small child could stay there during night. When he admitted that local inhabitants as well as tourists used to stop and pay obeisance in the temple, it is not known as to why efforts were not made to find out as to whether the devotees had come to the temple during the course of search and seizure or not. He, however, has not stated that no devotee visited the temple during that time. He, however, has not stated that no devotee visited the temple during that time. Interestingly enough, as per his further version one Dhaba, namely, “Krishnawali” was situated at a distance of 20 meters away from the temple whereas Mount View Guest House and White View Guest House were situated nearby to the spot vis. about 500 meters away therefrom as he stated voluntarily. Had someone been deputed either to Dhaba or the Guest Houses as aforesaid situated nearby, someone could have been brought to the spot therefrom and associated as an independent witness. The I.O., however, to the reasons best known to him, did not make any such efforts. 13. Not only this but as per the further version of the I.O., NHPC Guest House, store, cafe and guest houses were also situated nearby the spot. The distance thereof, though has been given by him to be 2 kms in his statement made voluntarily. The distance of these places from the spot was also not of such a nature that it was not possible for the I.O. to have procured the presence of someone on the spot therefrom. The present, as such, is a case where the I.O. has failed to join the independent witnesses to witness the search and seizure intentionally and deliberately and to the reasons best known to him. 14. True it is that as per the ratio of the judgment of the apex Court in Makhan Singh vs. State of Haryana, (2015) 12 SCC 247 , independent persons are not available for being associated as witnesses in every place and at every time and sometimes such person even refuses to associate with the police in the investigation of a case. The relevant extract of the judgment reads as follows: “……In peculiar circumstances of the case, it may not be possible to find out independent witnesses at all places at all times. Independent witnesses who live in the same village or nearby villages of the accused are at times afraid to come and depose in favour of the prosecution. Though it is well settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In the present case, it is not as if independent witnesses were not available…..” 15. Though it is well settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In the present case, it is not as if independent witnesses were not available…..” 15. The Division Bench of this Court, of which one of us (Justice Dharam Chand Chaudhary) is a Member in State of Himachal Pradesh vs. Vijender Singh, Cr. Appeal No. 332 of 2011, decided on 2nd August, 2016, has dealt with this part of the prosecution case in detail and laid guidelines for being followed during the investigation of the case registered under the Act. The relevant extract thereof reads as follows: 2. We feel that it is now high time to formulate the guidelines for being followed by all concerned including the Investigating Officers during the search and seizure conducted in a case registered under the Act. We, therefore, direct as under:- (i) Before resorting to search and seizure and arrest of a person believed to have committed an offence in relation to a Narcotic Drug or Psychotropic Substance under the Act and resort to conduct search of a building, conveyance or place where the Narcotic Drug or Psychotropic Substance or a document and an article, which may furnish evidence qua commission of an offence under the Act believed to have kept or concealed, the Investigating Officer, would associate two independent and respectable persons from the locality as witnesses to witness the search, seizure and arrest. In case any person refuses to witness the search and seizure without reasonable cause despite “Hukamnama” delivered to him/her, to take down the name and parentage etc. of such person for record, including proceeding against him under Section 108 (8) of the Code of Criminal Procedure and in appropriate cases may even launch prosecution also under Section 187 of the Indian Penal Code. Also collect evidence to establish that irrespective of efforts made, no one could be associated as independent witness for the reason to be recorded in writing.……………. 3. The above guidelines have been formulated for being followed in its mutatis mutandis by all concerned and the Officers authorized to conduct search and seizure and make arrest in the cases registered under the N.D.P.S. Act. 3. The above guidelines have been formulated for being followed in its mutatis mutandis by all concerned and the Officers authorized to conduct search and seizure and make arrest in the cases registered under the N.D.P.S. Act. It is made clear that any departure/violation thereof shall entail in penal action, including launching of prosecution under Section 58 of the Act or under Section 211 of the Indian Penal Code and also departmental action against the erring officer/official, who remained associated in one way or other with the investigation, inquiry and trial of the case.” 16. Therefore, in view of above and also there being noncompliance of Section 100 of the Cr.P.C. the conduct of investigation of this case by the I.O. in a fair and impartial manner is highly doubtful. Learned trial Judge, as such, has not committed any illegality or irregularity while holding that the recovery of the charas from the physical and conscious possession of the accused has not been proved beyond reasonable doubt. 17. The contradictions, as noticed by learned trial Judge, are not minor in nature as claimed on behalf of the appellant-State and rather goes to the very root of the prosecution case. 18. Interestingly enough, the I.O. PW-6 HC Jamal Deen, as pointed out hereinabove, has admitted the existence of Jainu temple at Jai Nullah and the Priest residing there as well as the provision of electricity in the said temple. He has also admitted the existence of Krishnawali Dhaba which according to him was situated at a distance of 20 meters from the temple. Not only this, but village Katagla was at a distance of 750 meters from foot bridge at Jai Nullah, the place of recovery, which according to him is thickly populated and having 20-25 houses in existence. He has also admitted the existence of Mount View Guest House and White View Guest House situated nearby to the spot, however, the so called eye witness PW-1 HHC Uttam Singh has denied the existence of Jainu temple at Nullah though while stating voluntarily he tells us that one small temple is in existence there and there is provision of electricity also in that temple. He denied the hustle and bustle every time in the temple and that one Baba remains present there for performing pooja. He denied the hustle and bustle every time in the temple and that one Baba remains present there for performing pooja. It has also been denied that a Dhaba is situated at a distance of 20 meters from the said temple. It has also been denied that Village Katagla is near to the place of recovery as the distance thereof according to him must be 1 km. It has also been denied that 20-25 families are residing at village Katagla, however, according to him, 3-4 families reside there. He has denied the existence of Guest Houses situated nearby as according to him, the same are far away from the spot. The distance of NHPC store and Guest House, according to him was 1½ km. away from Jai Nullah which according to PW-6 HC Jamal Deen was 2 kms. The contradictions in the testimony of both witnesses, is therefore, implicit from close scrutiny thereof. Since the present is a case where no independent person has been associated to witness the search and seizure and as the prosecution case hinges upon the evidence as has come on record by way of sole testimony of PW-1 HHC Uttam Singh which does not find corroboration by the testimony of another material witness PW-6 IO/HC Jamal Deen, therefore, the present is a case where it is not safe to place reliance on the evidence as has come on record by way of the testimony of official witnesses which in view of ratio of the judgment of the Apex Court in State of Haryana vs. Asha Devi and Another, (2015) 8 SCC 39 , could have been relied upon had on examination with all care and caution been found to be consistent and free from any contradiction. 19. Therefore, on this ground also, no findings of conviction could have been recorded against the accused. 20. Surprisingly enough, PW-2 LC Const. Veena Devi was called from PS Bhuntar specially to arrive at the spot and conduct the personal search of the accused. However, as per her version, she was brought to the spot by a rider on motorcycle. She, however, did not disclose the name of the rider. The number of the motorcycle and its log book has also not been produced in evidence. According to the I.O. the call to depute some lady police to the spot was made by him to PS Kullu. She, however, did not disclose the name of the rider. The number of the motorcycle and its log book has also not been produced in evidence. According to the I.O. the call to depute some lady police to the spot was made by him to PS Kullu. Had it been so, obviously rapat in daily diary would have been entered in the Police Station. No such document has been produced in the evidence. Not only this, but the MHC Ram Krishan (PW-5) has not said anything about the call so made by the I.O. and deploying a lady Const. Veena Devi (PW-2) to conduct search of the accused on the spot at Jai Nullah. PW-7 SHO Sanjeev Chauhan has also not said anything that Veena Devi (PW-2) was deputed to the spot. Therefore, the evidence as has come on record by way of testimony of PW-2 LC Veena Devi also seems to be fabricated later on. 21. Another aspect of the matter which has engaged our attention is as to how during night hours even if it was moonlit night, the investigation could have been conducted on the spot. No explanation is forthcoming in this regard. It is also not the case of the prosecution that the I.O. went to Jainu temple situated there and conducted investigation in the light available there. Therefore, it cannot be believed by any stretch of imagination that the investigation was conducted on the spot. 22. As per the version of I.O. he completed the documents i.e. filling the number of FIR etc. in Police Station when reached at PS Kullu and the case file was handed over to him by PW-1 HHC Uttam Singh. True it is that FIR No. in consent memo Ext. PW-1/A, memo qua personal search of the IO Ext. PW- 1/B, sample of seal Ext. PW-1/C, seizure memo Ext. PW-1/D, memo qua personal search of the accused Ext. PW-2/A, arrest memo Ext. PW-2/B and spot map Ext. PW-6/B, the FIR number has been written in red ink. However, the date of FIR i.e. 21.2.2010 is in blue ink. Since the accused was apprehended at 7:30 PM on 20.2.2010, it is not understandable as to how the I.O. has presumed that the FIR in this case was going to be registered in the Police Station on the next day i.e. 21.2.2010. However, the date of FIR i.e. 21.2.2010 is in blue ink. Since the accused was apprehended at 7:30 PM on 20.2.2010, it is not understandable as to how the I.O. has presumed that the FIR in this case was going to be registered in the Police Station on the next day i.e. 21.2.2010. Therefore, mentioning of FIR number in red ink and the date of registration thereof in blue ink casts doubt that these documents were written on the spot during the course of investigation. The prosecution story on this score is also highly doubtful. 23. As noticed at the outset, the evidence as has come on record by way of testimony of formal witnesses PW-3 Sunil Kumar, PW-4 Harbans Kumar and PW-5 Ram Krishan is formal in nature because the case property was deposited with PW-5 Ram Krishan who forwarded the same further to FSL, Junga through PW-3 Sunil Kumar. PW-4 HC Harbans Kumar was Reader to DSP (Hqrs.), Kullu and he has proved special report Ext. PW-4/A. The evidence as has come on record by way of their testimony could have been treated as link evidence, had the prosecution been otherwise able to prove its case against the accused beyond all reasonable doubt, hence, need not be elaborated. 24. In view of the facts and circumstances of this case and also the evidence available on record, in our considered opinion, learned trial Court has not committed any illegality or irregularity while acquitting the accused of the charge framed against him. The findings recorded by the trial Court, as such, are neither legally nor factually sustainable. The same as such calls for no interference by this Court in the present appeal. 25. For all the reasons hereinabove, this appeal fails and the same is accordingly dismissed and the impugned judgment is affirmed. Consequently, personal bonds executed by the accused are cancelled and surety discharged.