JUDGMENT : Oswal, J. 1. This is an appeal against the judgment dated 29.09.2012 passed by the 3rd Additional Sessions Judge, Jammu (hereinafter to be referred as the trial court) in case tilted, “State v. Amarjit Singh & Anr.” arising out of FIR bearing No. 59/2010 dated 18.07.2010 for commission of offences under sections 8 and 15 of the Narcotics Drugs and Psychotropic Substances, Act (for short the Act) registered with Police Station, Miran Sahib, Jammu. 2. The judgment has been assailed primarily on the ground that the learned trial court has acquitted the respondents despite the fact that the appellant had proved the charges against the respondents and further that the learned trial court has wrongly appreciated the evidence. 3. Mr. Amit Gupta, learned AAG has vehemently argued that the learned trial court has not rightly appreciated the evidence despite the fact that the prosecution had successfully proved all the charges against the respondents. 4. It is pertinent to note that this appeal was filed against two accused persons and respondent No. 1-Amarjit Singh as per certificate produced by Mr. Amit Gupta, AAG has died and appeal against him, as such, abates. 5. Now the brief facts necessary for the disposal of the present appeal are that on 08.07.2010, ASI Nazir Akbar Khan of Police Station, Miran Sahib had laid down a naka at Maralian, Miran Sahib along with other police personnel and at about 4.30 A.M. in the morning, a truck bearing registration No. JK 02F 6315 was intercepted at naka but after stopping the truck, the driver of the truck along with three other persons jumped out from the vehicle and ran towards village Maralian. They were chased by the police personnel. Accused Amarjit Singh, driver of the truck and Vishwa Nath, cleaner of the truck were apprehended but other two accused persons, namely, Harmeet Singh and Manjeet Singh succeeded in running away from the spot. 6. During search of the truck, five sacks and four small plastic sacks were recovered from the upper part of tool box and on opening the said sacks, Bhuki (Poppy Straw) weighing approximately more than one quintal was recovered. Both the accused could not produce any permission for possession of the said contraband. One docket was sent to the Police Station, Miran Sahib by Nazir Akbar Khan through constable Rajinder Singh. Both the accused could not produce any permission for possession of the said contraband. One docket was sent to the Police Station, Miran Sahib by Nazir Akbar Khan through constable Rajinder Singh. FIR No. 59/2010 for commission of offences under sections 8 and 15 of the Act was registered against the accused and thereafter, SHO Police Station, Miran Sahib along with other police officials came on the spot. SDPO and Tehsildar R.S. Pura also came on spot and in presence of the aforesaid officials, the truck was seized along with nine sacks of Poppy Straw. Nine samples weighting 250 grams each were extracted from the sacks and were sealed with ring marked as 'S' for sending the same to the FSL for chemical analysis. The nine sacks containing Poppy Straw were also sealed and marked as A to I respectively, whereas packets containing representative samples were marked as A-1 to I-1. The seized contraband was weighed with a weighing scale and it was found to be 165 Kg and 50 grams. The ring marked 'S' was kept on the supurdnama of Mulkh Raj whereas weighing scale was kept separately on the supurdnama of Amar Nath. Statements of the witnesses under sections 161 and164-A Cr.P.C. were recorded and nine packets of samples were sent to the FSL after getting them resealed from the Executive Magistrate, R.S. Pura. After the conclusion of the investigation and on the basis of FSL report, it was established that the accused had committed offence under sections 8 and 15 of the NDPS Act. After conclusion of the investigation, the charge sheet was filed against the respondents 1 and 2 in the court as other accused were not found. The charges were framed against the accused under sections 8 and 15 of the Act on06.12.2010 to which they pleaded not guilty and claimed to be tried. The prosecution was directed to lead evidence. 7. In order to appreciate the issues raised by the appellant, it would be apt to take note of brief resume of relevant portion of the evidence. Out of 16 witnesses, the prosecution has examined as many as 13 witnesses. 8. PW-3 Rajinder Singh Sgct. The prosecution was directed to lead evidence. 7. In order to appreciate the issues raised by the appellant, it would be apt to take note of brief resume of relevant portion of the evidence. Out of 16 witnesses, the prosecution has examined as many as 13 witnesses. 8. PW-3 Rajinder Singh Sgct. stated that on 17.07.2010, he along with In-charge ASI, SPO Rakesh Kumarand Baldev Singh, Ex-serviceman was performing naka duty at Maralian and at 4.00 in the morning, a truck bearing No. JK02F 6315 coming from Jammu was stopped and three-four persons came out of the truck and ran away. However, two persons were caught from a distance of 50 yards after chase. ASI searched the truck and five sacks were recovered from the Dashboard of the truck, which were off-loaded from the truck. The sacks were containing powder like material and it was Poppy Straw. The accused along with sacks recovered from them were taken to the Police Station and thereafter, he came back to the naka point. During cross examination, stated that his duty started at naka point at 9 PM along with other police officials after an entry was made in the Roznamcha and alongside the naka point there were shops and a market. Four persons fled away from the truck and out of which, two were caught. ASI Nazir Akbar Khan prepared the seizure memo in respect of five seized plastic sacks on spot over which he had put his signatures. The said sacks were not weighed at that time and nothing was found written over them. Rather they were taken in Police Station and kept in malkhana. Out of the two accused present in the court, one is Sikh and the other is non Sikh. He has seen the accused for the first time. 9. PW-6 Keshav Kumar is an eye witness but he did not support the prosecution as such, was declared hostile. In cross examination, the APP could not elicit any incriminating material against the respondents. 10. PW-3 Nazir Akbar Khan, ASI stated that perhaps on 20.07.2010 he along with Constable Rajinder Singh, Rakesh Kumar SPO and Baldev Raj, Ex-serviceman was performing his duty at naka point Maralian. In cross examination, the APP could not elicit any incriminating material against the respondents. 10. PW-3 Nazir Akbar Khan, ASI stated that perhaps on 20.07.2010 he along with Constable Rajinder Singh, Rakesh Kumar SPO and Baldev Raj, Ex-serviceman was performing his duty at naka point Maralian. A truck bearing No. JK 02F 6315 coming from Satwari side was asked to stop but four persons sitting in the truck jumped out and ran away but after a chase, two persons were caught who disclosed their names, as Vishwa Nath, Cleaner and Amarjit Singh, driver of the truck and they are present in the court today. During checking of the truck, nine bags were found lying on the tool box of the truck and there was Poppy Straw in those bags. The accused were taken into custody and a written docket was sent to the Police Station for registration of the case, marked as ExT-P4. After sometime, SHO and SDPO came on spot and Investigating Officer of the case started the investigation. The contraband recovered from the truck was weighed. It came to be 168 kg and representative samples weighing 250 grams each were extracted from each bag for FSL opinion. He had put his signatures and is marked as ExT-P4/1 and each bag was separately sealed besides packets of samples were also sealed on spot and truck was also seized. He has seen the nine sealed packets of sample in the court and material in the packets was identified by him. During cross examination, he stated that in the Roznamcha of Police Station, their departure was mentioned as 4.00 in the morning and the truck was intercepted at the naka at 4.30 AM. The truck was searched in presence of two civilians, one was Bittu Kumar but he cannot recall the name of other civilian. The seizure memo bears the signatures of Rajinder Singh constable and Rakesh Kumar SPO besides his own signatures. One Amar Nath, Scrap Dealer whose shop was open, was also called on spot along with electronic weighing scale for weighing the contraband. The bags were sealed on spot by a ring over which SS was written and was brought by SHO along with him. The contraband was resealed on spot in presence of Magistrate but he cannot say about the seal used for said purpose. The bags were sealed on spot by a ring over which SS was written and was brought by SHO along with him. The contraband was resealed on spot in presence of Magistrate but he cannot say about the seal used for said purpose. The samples after their resealing on spot were sent to the office of SDPO and Magistrate and rest of the seized contraband was kept in the malkhana of Police Station, Miran Sahib. The samples were not taken to malkhana but they were forwarded straightway to R.S. Pura from the spot. 11. PW-5 Baldev Raj stated that on 18.07.2010 a police naka was laid near Maralian from 9.00 AM to 5 AMand besides him, constable Rajinder Singh, Rakesh Kumar SPO and In-charge naka ASI Nazir Akbar Khan were also present on naka point and at about 4.30 in the morning, a truck No. JK 02F 6315 was stopped on the naka point but four-five persons came out of the truck and ran away, however, two persons, present in the court were caught after chase. Before arrival of the SHO on spot, they had checked the truck and five bags from the tool box and four small bags from the cabin of the driver, were found which were unloaded from the truck. There was Bhukki (Poppy Straw) in the bags. Thereafter, SHO started the investigation on spot and he remained busy with the checking of other vehicles. During cross examination, stated that the Sikh person was the driver of the truck. No civilian was present on spot and no shopkeeper was called there. The weighing scale was not brought on spot in his presence and it might have been brought later on, in his absence as he along with Rajinder Singh and Rakesh Kumar SPO had left the spot at 5.00 AM after their duty hours. 12. PW-7 Mulkh Raj was declared hostile and he stated that his statement under section 164-A Cr.P.C was got recorded by the Police by pressuring him to give statement in the court on the assurance that his motorcycle would be released as the same was in custody of the police. The witness did not support the prosecution and he was cross examined by the APP but no incriminating material could come out from his testimony. His statement was deferred but later on he was not produced by the prosecution. 13. The witness did not support the prosecution and he was cross examined by the APP but no incriminating material could come out from his testimony. His statement was deferred but later on he was not produced by the prosecution. 13. PW-8 Daljit Singh constable stated that on 18.07.2010, he was attached as PSO with the SHO Miran Sahib. He had gone along with SHO at naka point Maralian where a truck bearing No. JK 02F 6315 was standing. Four small bags were recovered from the cabin of the driver whereas five bags were recovered from the tool box of the truck having Bhukki in them. The Tehsildar and Dy SP also came on spot and bags were seized. The weight of the seized Bhukki was 168 kg and samples weighing 250 grams each were extracted from the contraband. He identified his signature over seizure memo marked as ExT-P4/1. He also proved the seizure memo of the truck, marked as ExT-P7. During cross examination, he stated that no civilian was present on spot when they reached at naka point, bags were lying in the vehicle, which were unloaded by him. An iron weighing scale with chains was used for weighing the seized Bhukki but he cannot say which shopkeeper brought it on spot. The bags weighed 35 kg search whereas small bags were of 19 kgs each. The samples were extracted from the bags which were sealed and they were also weighed which were about 250 grams each. 14. PW-9 Constable Sohan Lal stated that he was attached as PSO with SHO Miran Sahib and on18.07.2010 he went on spot along with SHO and found a truck bearing registration No. JK 02 F 6315 on spot. SHO recovered five sacks from the tool box of the truck and four bags from inside the truck. Thereafter, the SDPO and Tehsildar also arrived on spot. The sacks were weighed and it was 35 kg each and some bags were 19kg each and total weight of the contraband was 168 kg. No other proceedings were conducted in his presence and accused were also there. ASI Nazir Akbar Khan, Rakesh Kumar, Rajinder Singh and Baldev Raj were also there. Samples weighing 250 grams each were extracted from each bag. He identified the signatures on the seizure memo that was marked as ExT-P4/1. He was also shown the seized material. No other proceedings were conducted in his presence and accused were also there. ASI Nazir Akbar Khan, Rakesh Kumar, Rajinder Singh and Baldev Raj were also there. Samples weighing 250 grams each were extracted from each bag. He identified the signatures on the seizure memo that was marked as ExT-P4/1. He was also shown the seized material. In cross examination, he stated that no civilian was present on spot. One boy was brought for unloading the sacks. Weighing machine with which the contraband was weighed was electronic machine and not an iron scale with chains. The Investigating Officer of the case was Nazir Akbar Khan who had prepared the seizure memo. The seizure memo on which he signed, there was a reference of sacks bags measuring 35 kg and 19 kg respectively but ExT-P4 does not have the reference of the same. 15. PW-11 Amar Nath was declared hostile by the APP. He denied that he had gone to naka point and weighed the consignment of Bhukki. In cross examination, he stated that weighing scale was taken by him to the Police Station at 1'O clock afternoon. 16. PW-10 Rakesh Kumar is a photographer and stated that he was called on spot through a SPO where he found a truck standing there. He clicked photographs those were marked as 1 to 5. In cross examination, he stated that the said photographs were clicked by him at about 4-5 in the afternoon. 17. PW-4 Rakesh Kumar SPO stated that on 17.07.2010 he was performing naka duty at Maralian along with ASI Nazir Akbar Khan, constable Rajinder Singh and Ex serviceman Baldev Raj and at about 4.30 AM in the morning, a truck bearing No. JK 02F 6315 was stopped at naka point for checking but driver of the truck along with three others got down from the truck and ran away but two persons namely, Amarjit Singh and Vishwa Nath were caught, who were present in the court today. A search was conducted and five bags and five plastic sacks were found on the tool box and on opening of the said bags, Bhuki was recovered. SHO came on spot and truck was taken to the Police Station. The seizure memo of the truck marked as ExT-P4 bears his signatures. A search was conducted and five bags and five plastic sacks were found on the tool box and on opening of the said bags, Bhuki was recovered. SHO came on spot and truck was taken to the Police Station. The seizure memo of the truck marked as ExT-P4 bears his signatures. In cross examination, he stated that he along with other members of the naka duty remained at naka point after the accused and the truck were taken to the Police Station. He is not aware about the further proceedings conducted by the SHO in the Police Station relating the case. Seizure memo of truck and Bhuki were prepared in the Police Station. 18. PW-12 Subash Chander, ASI stated that he was posted as Munshi in the Police Station, Miran Sahib in the year, 2010. He has stated that on 18.07.2010 nine sealed bags of Bhuki marked A to I were deposited in the malkhana as per entry No. 54 made in the relevant register which was brought in the court today. The entry is in his handwriting. A copy whereof has been placed on record after comparing it with the original and has beenmarked as ExT-P12. In cross examination, he stated that there are two entries against serial No. 54 in the register. The firstentry pertains to report No. 45 in respect of a motorcycle where as second entry is ExT-P12 regarding seized articles in the case. It is correct that in the malkhana register there is only an entry of seized material but there is no mention of seal and signatures of the officer concerned. As per serial No. 54 there is only an entry of seized nine bags and truck but there is no mention of any other entry and it is correct that with regard to the case in hand there is no entry of seal impression, seal besides sealed samples in the register. 19. PW-15 Pawan Abrol, Assistant Scientific Officer, FSL Jammu stated that on 21.07.2010 nine sealed packets were received in the office of FSL, Jammu forwarded by DySP, Sub Division R.S. Pura vide letter dated20.07.2010 in connection with FIR No. 59/2010 under sections 8 and 15 of the Act. 19. PW-15 Pawan Abrol, Assistant Scientific Officer, FSL Jammu stated that on 21.07.2010 nine sealed packets were received in the office of FSL, Jammu forwarded by DySP, Sub Division R.S. Pura vide letter dated20.07.2010 in connection with FIR No. 59/2010 under sections 8 and 15 of the Act. The said packets enclosed with the cloth marked as A-1 to A-I were further given the exhibits No. P-1468/10 to P-1476/10 by him and there were nine seals intact out of which three seals tallied with specimen seal impression forwarded by the Executive Magistrate and six seals tallied with the specimen seal impression forwarded by the SDPO. They were 250 gram search and were found to contain some powdered material which was subjected to various chemical tests and chromatographic examination, morphine was detected in all the exhibits and the exhibits also revealed the presence of morphological features of Poppy Plant. The report ExT-P15 bears his seal and signature. During cross examination, stated that he did not receive separate seal impression that had been used by the police at the time of sealing contraband nor did he remember as to what was the type of facsimile of seal impression. 20. PW-16 Sunil Singh Jasrotia, Inspector stated that on 18.07.2010, a case under section 8 and 15 of the NDPS Act was registered on the basis of a written docket of Nazir Akbar Khan ASI with the allegations that Bhukki was recovered from truck No. JK 02F 6315. The contents of FIR in the file are correct which bears his signature. Before proceeding on spot he had informed his superior officers on phone and also requested Executive Magistrate to come on spot. The site plan in the file is in his hand writing bears his signatures and was marked as ExP 16/1. On the arrival of Tehsildar and Dy SP, the contraband packed in nine bags recovered from the tool box of the truck was weighed by a person who had brought a weighing scale on spot. The contraband was weighing 168 kg and samples of 250 grams each were separately extracted and sealed on spot. The seizure memo of contraband and the truck already marked as Ex T-P4/1 and ExT-P7 respectively and prepared on spot bears his signatures. The ring used for sealing purposes was also seized, that also bears his signatures and was marked as Ex P 16/2. The seizure memo of contraband and the truck already marked as Ex T-P4/1 and ExT-P7 respectively and prepared on spot bears his signatures. The ring used for sealing purposes was also seized, that also bears his signatures and was marked as Ex P 16/2. Similarly, the seizure memo of weighing scale also bears his signature and was marked asExT-16/3. The seizure memo prepared by the ASI was also seized by a separate memo which bears his signature and is marked as ExP 16/4. He has also identified his signatures over supurdnama memos ExT-P16/5 and ExT-P16/6 of weighing scale and a ring respectively. He further stated that after getting samples resealed from the Magistrate, they were sent to FSL for expert opinion. He further stated that from his investigation, offences under sections 8 and 15 of the Act were established against the accused. During cross examination, he stated that he found five bags and four small bags having Bhukki in them lying on the tool box of the truck and the same were unloaded from the truck. PW Amar Nath had brought the electronic weighing scale with him and the contraband was seized in the presence of said witness and two other civilian namely, Kishore Kumar and Mulkh Raj but the said civilians were not cited as witnesses in the seizurememo. He further stated that he had forwarded the sealed samples to SDPO for re-sealing who after getting the samples resealed sent them to the Magistrate in order to get the report from FSL. He admitted that it is correct that he had not deposited the samples in the malkhana and the samples were dispatched and delivered to FSL on 21st July. The samples as per record were resealed on 20.07.2010. The samples remained with the police before their resealing. After resealing the samples, the ring was kept on the supurdnama of PW Mulkh Raj. 21. This is the whole prosecution evidence. The incriminating material was put to the respondents and their statements were recorded under section 342 Cr.P.C. No defence evidence was led by the accused-respondents and after hearing both the parties, the learned trial court vide impugned judgment dated 29.09.2012acquitted the respondents. 22. After scanning the evidence, we find that there are material contradictions in the evidence. The incriminating material was put to the respondents and their statements were recorded under section 342 Cr.P.C. No defence evidence was led by the accused-respondents and after hearing both the parties, the learned trial court vide impugned judgment dated 29.09.2012acquitted the respondents. 22. After scanning the evidence, we find that there are material contradictions in the evidence. So far as evidence led by the prosecution to prove the recovery of the contraband from the truck is concerned, PW Rajinder Singh, Sgct. has stated that the vehicle was searched and five sacks were recovered from the tool box of the truck. This runs contrary to the prosecution story as the prosecution story is that five bags and four small plastic bags were recovered lying on the tool box of the truck. Though PW Nazir Akbar Khan has stated that the nine bags were found lying on the tool box of the truck and they were having Bhukki in it. Perusal of the statements of PW Daljeet Singh and PW Sohan Lal reveal that on checking of the truck, four small bags were recovered from the cabin of the driver and five were recovered from the tool box. Likewise, PW Rakesh Kumar SPO has stated that during search, five bags and five plastic bags were found in the tool box of the truck. PW Baldev Raj has stated that during the checking of the truck, five bags were recovered from the tool box and four bags were found from the cabin of the driver. Thus, there are material contradictions with regard to the recovery of the contraband. These contradictions assume significance in view of the fact that PW Keshav Kumar has not supported the prosecution case and has turned hostile. Similarly, PW-7 Mulkh Raj who was independent witness and was cited as eye witness and witness to the supurdnama of the ring has also not supported the prosecution. Even PW Amar Nath, who was cited as a witness of supurdnama of weighing scale also did not support the prosecution. Rather PW Amar Nath stated that he took the weighing machine at Police Station whereas the prosecution story is that contraband was weighed on spot. Even PW Amar Nath, who was cited as a witness of supurdnama of weighing scale also did not support the prosecution. Rather PW Amar Nath stated that he took the weighing machine at Police Station whereas the prosecution story is that contraband was weighed on spot. Also PW Daljeet Singh who was witness to the seizure memo has stated that the weighing scale having iron chains was used which is contrary to the prosecution case and the presence of this witness on spot becomes doubtful. 23. In view of above findings, we find that the prosecution story with regard to the recovery of the contraband from the truck is doubtful. The link evidence is also lacking in the instant case as the Investigating Officer has admitted that the representative samples extracted from the seized contraband were not deposited in the malkhana. The recovery was effected from 18.07.2010 and the samples were in the police station till20.07.2010 when they were got resealed. The independent witness PW Mulkh Raj has not uttered a word about the ring that was kept on his supurdnama and used for the purpose of sealing the representative samples. The prosecution is under obligation to prove that after the samples were extracted from the seized contraband, the same were kept in safe custody so as to negate the chances of tampering with the samples. In the instant case the samples remained with the police from 18.07.2010 to 20.07.2010 and also the fact that with whom, the ring used for the purpose of sealing the samples remained, casts a serious doubt as to whether in fact the representative samples those were extracted on spot from the recovered material were got resealed and thereafter sent to FSL for chemical examination. It assumes significance particularly in view of the fact that the Executive Magistrate, Iqbal Singh, who had resealed the samples on 20.07.2010 was not examined by the prosecution. 24. We have also gone through the judgment of the learned trial court and the learned trial court has rightly appreciated the evidence and we do not find that there is any perversity in the judgment impugned passed by the learned trial court, rather on the basis of the evidence led by the prosecution, the only option available before the trial court was to acquit the accused-respondents. 25. 25. We do not find any reason whatsoever particularly in view of all what has been discussed above, to take any view contrary to that taken by the learned trial court, as such, the judgment impugned is upheld. The appeal is dismissed. 26. The bail bonds of the respondent(s) are discharged. 27. Record of the trial court be sent back forthwith.