JUDGMENT : Dharam Chand Chaudhary, J. The respondents herein are accused. Charge under Section 22 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act) and 18 (c) of Drugs and Cosmetics Act was framed against each of them on the allegation that 741 capsules of ?Spasmo Proxyvon? kept in a plastic bag under gas stove in their residence, namely, Roshan Lal building near Chajju Ram Mohan Singh building Bye Pass, Kather, District Solan were recovered during the search conducted consequent upon search warrants obtained by the police. Learned Special Judge (II), Solan after holding full trial and on appreciation of the evidence has arrived at a conclusion that the recovery of capsules from the exclusive and conscious possession of the accused persons though stand proved, however, the drugs so recovered do not fall under the mischief of ND & PS Act with further observation that for the contravention of the provisions of Drugs and Cosmetics Act, 1940, if any, the prosecution may be launched against them by the Drug Inspector. Both of them were accordingly acquitted of the charge framed against each of them vide judgment dated 31.3.2011 in Sessions Trial No. 18-S/7 of 2010, which is under challenge in the present appeal. 2. Since the part of the prosecution case i.e. recovery of contraband spasmo proxyvon capsules 741 in number have been held to be proved, therefore, in the present appeal, the findings to the limited extent that no offence under the provisions of ND & PS Act is made out against the respondents-accused have been assailed in the present appeal on the grounds inter alia that such findings have been recorded by learned trial Court on hypothetical reasoning, surmises and conjectures. The evidence available on record has not been appreciated in its right perspective. The prosecution allegedly has proved its case beyond all reasonable doubt that spasmo proxyvon capsules recovered from the accused were sample of Dextropropoxyphene synonymous to Propoxyphene Napsylate hence a narcotic drug as described at Sr. No. 33 of the notification issued under Section 2 of the ND & PS Act and also that as per Sr. No. 239 of the said table any mixture or preparation with or without a neutral material of above drug is a narcotic drug within the meaning of ND & PS Act. No. 33 of the notification issued under Section 2 of the ND & PS Act and also that as per Sr. No. 239 of the said table any mixture or preparation with or without a neutral material of above drug is a narcotic drug within the meaning of ND & PS Act. Learned trial Court, therefore, has allegedly wrongly acquitted both the accused of the charge framed against each of them under Section 22 of the Act. The impugned judgment as such, has been sought to be quashed and set aside and the accused convicted for the commission of the offence punishable under Section 22 of the Act. 3. The prosecution case as disclosed from the report under Section 173 Cr. P.C and the documents annexed therewith in a nut shell is that on 23.7.2009, PW-12 Nishchint Negi, Dy. S.P Solan was directed by Superintendent of Police Solan to check illicit trafficking of intoxicated drugs in the area. He received secret information that accused are involved in the business of intoxicants in the accommodation they hired in the building, namely, Roshan Lal near Chajju Ram Mohan Singh building Bye Pass, Kather. Therefore, search warrant Ext. PW-12/A was obtained from the Chief Judicial Magistrate, Solan. A raiding party comprising PW-12 DSP Nishchint Negi, PW-13 ASI Kedar Nath, PW-15 Const. Chhabil Kumar, PW-11 Bhupinder Singh and Const. Ajay Kumar was formed. Two independent persons, namely PW-9 Kailash Chand and PW-10 Raman Singh were also associated in the raiding party. The police party went to the hired accommodation of the accused and knocked at the door. Accused Asha Gupta came out and told that her husband accused Prem Gupta was away to Delhi. The search warrant Ext. PW-12/A was shown to her. She was also apprised about her legal right to give her search either before a Magistrate or Gazetted Officer vide memo Ext. PW-9/A. She allegedly consented to be searched by the police vide memo Ext. PW-9/B. Thereafter all the persons of the raiding party offered their search first to her vide memo Ext. PW-9/C. Nothing incriminating could, however, be recovered from them. It is thereafter the house of the accused was searched in the presence of independent witnesses. On the search of their house, 741 spasmo proxyvon capsules were recovered from a polythene packet kept in a plastic container in the kitchen. PW-9/C. Nothing incriminating could, however, be recovered from them. It is thereafter the house of the accused was searched in the presence of independent witnesses. On the search of their house, 741 spasmo proxyvon capsules were recovered from a polythene packet kept in a plastic container in the kitchen. The accused Asha Gupta failed to produce the documents authorizing them to retain the capsules with them in their house. The sampling and seizure process had taken place thereafter and the recovered capsules were seized on the spot after drawing sample. The identification memo Ext. PW-9/D was prepared. It is thereafter, rukka Ext. PW-2/A was prepared and sent to Police Station for registration of the case through PW-11 Const. Bhupinder Singh. Consequently, FIR Ext. PW-2/B came to be recorded in the Police Station. Further investigation was conducted and completed on the spot. The spot map Ext. PW-12/B was also prepared. The statements Ext. PW-12/F and Ext. PW-9/H of independent witnesses PW-10 Raman Singh and PW-9 Kailash Chand were recorded as per their version. The case property duly sealed was brought to Police Station and deposited in the malkhana after the same having been resealed by PW-2 ASI Lajja Ram. The opinion Ext. PW-4/A of PW-4 Sunny Kaushal, Drug Inspector and Ext. PW-5/A of PW-5 Ravinder Kumar Chaudhary, Asstt. Drug Controller were obtained. Special report Ext. PW-1/A was delivered to the Superintendent Solan who had perused the same and made the endorsement Ext. PW-1/B. The report of Forensic Science Laboratory Ext. PX and PY were obtained and on completion of the investigation, challan prepared and filed in the Court. 4. Learned trial Judge, on consideration of the police report and documents annexed therewith has found a prima-facie case under Section 22 of the ND & PS Act and Section 18 (c ) of the Drugs and Cosmetics Act made out against both the accused and charge against them framed accordingly. The accused, however, pleaded not guilty. The prosecution, therefore, examined 16 witnesses in all. The material prosecution witnesses are PW-9 Kailash Chand and PW-10 Raman Singh, the independent witnesses. PW-4 Sunny Kaushal, Drug Inspector has issued Ext. PW-4/A. PW-5 Ravinder Kumar Chaudhary is Asstt. Drug Controller, Solan. His opinion as to whether the recovered substance was a drug within the meaning of ND & PS Act was sought. He has issued the certificate Ext. The material prosecution witnesses are PW-9 Kailash Chand and PW-10 Raman Singh, the independent witnesses. PW-4 Sunny Kaushal, Drug Inspector has issued Ext. PW-4/A. PW-5 Ravinder Kumar Chaudhary is Asstt. Drug Controller, Solan. His opinion as to whether the recovered substance was a drug within the meaning of ND & PS Act was sought. He has issued the certificate Ext. PW- 5/B stating therein that the same falls under the category of narcotic and psychotropic substance. PW-11 Const. Bhupinder Singh is a witness of the spot. He has supported the prosecution case qua the recovery of the capsules and also the sampling/sealing process. He has also supported the prosecution case qua its seizure and thereafter he had taken the rukka to the Police Station for registration of the case. PW-12 Nishchint Negi is also a material prosecution witness as it is he who being Dy. SP was head of the police party raided the house of the accused persons. PW-13 ASI Kedar Nath has investigated the case. PW-15 Const. Chhabil Kumar was also one of the persons of the raiding party. 5. The remaining prosecution witnesses are formal because PW-1 Yadan Chand was working as Asstt. Reader to Superintendent of Police. He has proved the special report Ext. PW-1/A. PW-2 ASI Lajja Ram was officiating SHO, Police Station Solan on that day. He has registered the FIR. He has also supported the prosecution case qua the case property produced before him and deposited in malkhana after having resealed the same. PW-3 ASI Sunil Kumar was posted as MHC in Police Station Solan. He has also supported the prosecution case qua the case property handed over to him for safe custody in the malkhana and later on samples thereof sent for obtaining the expert opinion. PW-6 HC Chander Mohan had entered the FIR Ext. PW-2/A and also daily diary No. 53 Ext. PW-6/B. PW-8 HC Prem Singh had taken the case property to FSL, Junga on 25.7.2009 and deposited there. PW-16 HC Vikram Singh has also conducted the investigation partly as he had recorded the statement of HC Hardev Singh and Const. Chabil Kumar, as per their version. 6. On the other hand, both the accused in their statements recorded under section 313 Cr.P.C. have denied the prosecution case either being wrong or for want of knowledge. PW-16 HC Vikram Singh has also conducted the investigation partly as he had recorded the statement of HC Hardev Singh and Const. Chabil Kumar, as per their version. 6. On the other hand, both the accused in their statements recorded under section 313 Cr.P.C. have denied the prosecution case either being wrong or for want of knowledge. In their defence, it is pleaded that accused Prem Gupta is running a shop of hardware at Kather bye pass road Solan. HC Raj Kumar had purchased articles from his shop and he had certain disputes with said Raj Kumar regarding payment of articles so purchased by him. The accused, as such, were falsely implicated by the police in this case. 7. As pointed out at the outset, learned trial Court on appreciation of the entire evidence has concluded that the recovery of 741 capsules from the exclusive and conscious possession of the accused stands established, however, the same were not found to be narcotic and psychotropic substance under the ND & PS Act. It was left open to the Drug Inspector to file a complaint against the accused persons in the Court of competent jurisdiction. 8. Mr. J.S.Guleria, learned Dy. Advocate General, has strenuously contended that certificates Ext. PW-4/A and PW-5/A as well as FSL report Ext. PX, prove beyond all reasonable doubt that the capsules recovered from the accused persons were narcotic drug/ psychotropic substance. The complaint, therefore, is that the accused persons have been wrongly acquitted of the charge under Section 22 of the ND & PS Act. 9. On the other hand, Mr. Rohit Sharma and Anuj Gupta, Advocates have not repelled the submissions so made on behalf of the accused and rather also argued that the findings qua recovery of the contraband allegedly spasmo proxyvon were not at all proved to be recovered from the conscious and exclusive possession of the accused and as such, allowing the prosecution to file a complaint against them under the provisions of Drugs and Cosmetics Act, 1940, are not legally and factually sustainable. It has been urged that in the present appeal against acquittal of the accused, they have the legal right to assail the findings so recorded by learned trial Court against them even without filing an independent appeal. It has been urged that in the present appeal against acquittal of the accused, they have the legal right to assail the findings so recorded by learned trial Court against them even without filing an independent appeal. Support in this regard has been sought to be drawn from the provisions contained under Section 377 (3) of the Code of Criminal Procedure. 10. Learned Dy. Advocate General, however, has vehemently opposed the arguments so addressed on the grounds that there is no provision in the Code of Criminal Procedure providing for challenging any observation in the judgment against them by the accused in an appeal preferred by the State against their acquittal. According to learned Dy. Advocate General under Section 377(3) Cr.P.C., they however, are entitled to argue for their acquittal in an appeal filed by the State against the sentence on the grounds of its inadequacy. 11. In view of the rival submissions, we deem it appropriate to first set at rest the points raised by Mr. Rohit Sharma, Advocate, learned defence counsel. The question, therefore, arises that in an appeal filed by the State against the acquittal, the accused has a right to file appeal against the findings which are against them or not. In order to answer the same, it is desirable to reproduce here the provisions contained under Section 377 (3) of the Code of Criminal Procedure, which reads as follows: ?377(3). When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.? 12. The bare perusal of the above provisions make it abundantly clear that accused has right to argue for his acquittal in an appeal preferred by the State for enhancement of the sentence. Learned counsel Mr. Rohit Sharma in order to substantiate the submissions he made, has placed reliance on the judgment of the Apex Court in Chandrappa & ors. Vs. The bare perusal of the above provisions make it abundantly clear that accused has right to argue for his acquittal in an appeal preferred by the State for enhancement of the sentence. Learned counsel Mr. Rohit Sharma in order to substantiate the submissions he made, has placed reliance on the judgment of the Apex Court in Chandrappa & ors. Vs. State of Karnataka, reported in (2007) 4 SCC 415 , however, unsuccessfully for the reason that nothing of the sort came to be decided in the judgment ibid and the ratio thereof rather is that the appellate Court has all powers, including, power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. Meaning thereby that in an appeal against acquittal of the accused, the Code of Criminal Procedure puts no limitation, restriction or condition on exercise of such power by the appellate Court on the evidence before it and may reach at its own conclusion, both on question of law and facts. This judgment, therefore, is of no help to the defence. 13. Admittedly, in the Code of Criminal Procedure, there is no provision providing for challenging the findings/observations against the accused in a judgment whereby he/she has been acquitted. Of course, in a case of conviction where the judgment is challenged by the State on the question of inadequacy of the sentence imposed, the accused is entitled to argue for his acquittal. In the absence of any provision in the Code of Criminal Procedure, this Court is of the firm opinion that the accused are not entitled to argue against the observations in the impugned judgment that 741 spasmo proxyvon capsules have been recovered from the conscious and physical possession of the accused. Otherwise also, said observations will be of some consequence in case any case is found to be made out against them under the provisions of Drugs and Cosmetics Act and the Drug Inspector chosen to file a complaint against them. Otherwise also, said observations will be of some consequence in case any case is found to be made out against them under the provisions of Drugs and Cosmetics Act and the Drug Inspector chosen to file a complaint against them. We are also not satisfied with the submissions that in a judgment of acquittal, the accused is remediless and cannot challenge the observations of this nature against him in the impugned judgment for the reason that even if the remedy of appeal is not available to the accused, they may have resorted to other and further remedy available to them in accordance with law, including the writ jurisdiction of this Court as the point so raised is pure and simple and legal in nature. Therefore, we find no substance in the arguments that the accused has right to challenge the observations against them in the impugned judgment without filing appeal and resorting to any other and further remedy available to them. Such submissions, therefore, have been made merely for rejection. 14. The prosecution case that the spasmo proxyvon capsules recovered from the accused is a drug under the provisions of ND & PS Act, we are not in agreement with learned Dy. Advocate General in this regard for the reason that the certificate Ext. PW-4/A issued by PW-4 Sunny Kaushal, Drug Inspector is hardly of any help to the prosecution case as nothing of the sort has come therein that spasmo proxyvon capsule is a drug falling within the mischief of the ND & PS Act. This witness has rather formed the opinion on the basis of the salt of the recovered capsules on its strip/wrapper that the same contains Propoxyphene Napsylate which is synonymous to Dextropropoxyphene. 15. Now, if coming to the opinion of PW-5 Ravinder Kumar Chaudhary, Asstt. Drug Controller, he has also taken into consideration the contents of each capsule as per the detail given on the strip/wrapper. According to him, Dextropropoxyphene and Propoxyphene Napsylate fall under the category of ND & PS Act, however, how and in what manner his opinion Ext. PW-5/B is silent. Even, if it is believed that spasmo proxyvon contains Propoxyphene Napsylate and that the same is synonymous to Dextropropoxyphene, though Dextropropoxyphene finds mention at Sr. According to him, Dextropropoxyphene and Propoxyphene Napsylate fall under the category of ND & PS Act, however, how and in what manner his opinion Ext. PW-5/B is silent. Even, if it is believed that spasmo proxyvon contains Propoxyphene Napsylate and that the same is synonymous to Dextropropoxyphene, though Dextropropoxyphene finds mention at Sr. No. 94 of the Notification No. 527 (E) dated 16.7.1996 and its salts, preparations, admixtures and other substances except preparations for oral use containing not more than 135 mgs of Dextropropoxyphene, do not contain any substances controlled under the Convention of Psychotropic Substances, 1971, hence not narcotic drug or substance under the ND & PS Act. It is only the quantity of above stated salts if more than 135 mgs of Dextropropoxyphene in the drug only then falls within the mischief of the ND & PS Act. In the case in hand, the report Ext. PX received from the State Forensic Laboratory reveals that in the sample of capsules of spasmo proxyvon on analysis in the laboratory, Propoxyphene Napsylate was found to be 99.97 mg per capsule i.e. less than 135 mg. Therefore, the submissions that learned trial Court has not appreciated the evidence in its right perspective made on behalf of the prosecution hardly finds any substance. Learned trial Judge, while placing reliance on the judgment of the Punjab and Haryana High Court in Rajiv Kumar vs State of Punjab, Recent Cr. Reports 1997(4) 846 has rightly held that the presence of 135 mg of Dextropropoxyphene hydrochloride based per unit is exempted from the ambit of manufactured drugs. Therefore, the capsules recovered from the accused do not fall within the mischief of the ND & PS Act. We, therefore, find no substance in this appeal and the same is accordingly dismissed and the impugned judgment is upheld. As a consequence thereof, personal bonds executed by each of the accused will stand cancelled and surety discharged.