JUDGMENT : 1. The appellant has filed this appeal against the judgment of acquittal of the accused/respondent passed by the Principal Sessions Judge, Srinagar (for short “Trial Court”) on 15.03.2017 in case FIR no.82/2004 bearing File No.216/B, FIR No.82/2004 for offences punishable under section 8/20 NDPS Act, titled as State through Police Station, Khanyar vs. Shabir Ahmed Rather, precisely on the following grounds: i) That there were sufficient grounds to prove the charge against accused. The witnesses produced show that accused was found in possession of contraband substance (Charas) and he has, thus, committed offence beyond any shadow of doubt. The witnesses have corroborated each other in material particulars. The Trial Court, however, did not give any credence even to the material evidence vis-à-vis recovery of the Charas from the active possession of the accused/ respondent on spot when he was arrested. The Trial court has wrongly observed that Investigating Agency has failed to prove the number of sticks of Charas recovered from the possession of accused which fact cannot be sole ground for passing impugned judgment. There was no material contradiction vis-à-vis recovery of Charas, still the Trial court has not properly appreciated the witnesses produced. The fact that Executive Magistrate cited as PW has not been examined could neither have formed the basis for passing judgment of acquittal in favour of accused nor have taken all measures to ensure presence of the officer before whom the recorded contraband was sealed and forwarded to the Chemical Analyst to FSL. In any case, search and seizure had taken place in presence of a Gazetted Officer, such a statement of Executive Magistrate not recorded should not have been given exclusive weightage in discarding the entire factual and procedural requirements under law being adhered, though the Trial court to that extent has misinterpreted the position of law. The Trial court during arguments has appraised the important fact that at the relevant point of time, a civil witness who had witnessed the occurrence was reluctant to associate with the investigation of the case. The other evidence produced cannot be overlooked, however, while passing impugned judgement, the Trial Court has put undue weightage to blemishes that are not sufficient to throw away the prosecution case. The other evidence produced cannot be overlooked, however, while passing impugned judgement, the Trial Court has put undue weightage to blemishes that are not sufficient to throw away the prosecution case. The requirement of independent witnesses under Section 134 of the Evidence Act stresses on the quality of evidence and not the quantity of evidence, is not plausible at all in light of the hostile environment towards the police. ii) That witnesses examined have in unequivocal terms corroborated prosecution story and connected accused/respondent with commission of offence. The Trial court has not accorded due appreciation to incriminating evidence against respondent/accused and passed impugned judgement without taking into consideration seriousness of offence committed by respondent/accused where the menace of such offence has taken an enormous proportion. iii) While relying on the arguments of the defence, the Trial court has ignored the prosecution aspect of the case as the evidence which has been recorded by the prosecution, has succeeded in establishing the guilt committed by the accused and the defence has failed to create any doubt in the prosecution case, though there may be minor contradictions, discrepancies in the investigation but it does not mean that it should be thrown overboard. Still the prosecution has been successful to prove the case beyond any shadow of doubt. Such minor defects will have no effect upon the prosecution and as per the settled principle of law, same has to be ignored to meet the ends of justice. The acquittal of the accused has been passed in slipshod manner without appreciating the evidence and record present in the file but the trial court has brushed aside the same, which was sufficient and cogent evidence to convict the accused/ respondent but has committed grave error in acquitting the accused which has also caused great injustice to the prosecution case. 2. I have heard learned counsel for parties. I have gone through the record attached with the file and considered the matter. 3. The case of the appellant is that on 02.10.2004 SDPO, Khanyar, along with SHO, Police Station, Khanyar and SHO, Police Station Rainawari, laid/put down a Naka at Ikhwan Chowk, Srinagar, and during Naka, they found accused, Shabir Ahmad Rather, roaming in suspicious circumstances. After chasing him, he was apprehended and on his personal search one polythene bag was recovered from his possession, which on inspection was found to be containing Charas (contraband). After chasing him, he was apprehended and on his personal search one polythene bag was recovered from his possession, which on inspection was found to be containing Charas (contraband). Seizure memo, sitemap of place of occurrence was prepared by the Investigating Officer and the statement of witnesses under Section 161 Cr. P.C. was also recorded. Out of the recovered contraband substance, 100 grams of contraband was taken as sample and sealed under the supervision of Executive Magistrate. The said sample was sent for examination to FSL. The same was found to be Charas. The Police after conclusion of investigation and after receiving report of the said sample found the accused prima facie involved in offence under section 8/20 NDPS Act. The challan was presented before the Trial court and the trial court on 02.05.2025 framed the charges under Section 8/20 NDPS Act, to which he pleaded not guilty and accordingly, the prosecution was directed to adduce evidence. 4. It is the prosecution story that the accused on 02.10.2004 was found in suspicious situation by the SDPO alongwith SHO, Police Station, Khanyar as well as SHO, Police Station Rainawari, at Naka at Ikhwan Chowk, Munawar Abad, on the basis of which they searched accused and recovered 03 Kgs and 200 grams of Charas. The prosecution witnesses, Dy. SP Ali Mohammad Shah, SI Mushtaq Ahmad, Constable Ghulam Nabi, Inspectors Mir Rasiq & Manzoor Hussain and Shakeel Ahmad Wani, FSL expert, were examined. After examining the prosecution witnesses and submissions made by learned counsel for parties, the Trial court came to conclusion and made following observations: - “A perusal of the file reveals that FIR having been lodged on 02.10.2004 by transmission of a docket by SHO to Incharge Police Station Khanyar wherein the recovery of 03 Kgs and 200 grams of Charas is stated to have taken place on the place of occurrence referred as Ikhwan Chowk. Frad Jama Talashi’ EXPW-1 does not mention the number of sticks of Charas if any recovered on spot though in the information transmitted by the police it is stated that the Charas was recovered in the form of sticks covered in Maiz Corns. The information lacks the particulars as to how the substance was weighed though it has been quantified 03 kgs and 200 grams. Elsewhere also no reference is found in the prosecution case as to how the substance was weighed on spot. The information lacks the particulars as to how the substance was weighed though it has been quantified 03 kgs and 200 grams. Elsewhere also no reference is found in the prosecution case as to how the substance was weighed on spot. PW SDPO Ali Mohammad Shah has stated that sample was taken on spot and the letter addressed by Executive Magistrate dated 05.10.2004 also refers that 100 grams were taken as sample from the substance but who has produced the same before him is not mentioned. As already noted the Magistrate before whom same has been produced has not been cited as a witness. It is not also stated anywhere as to how the seized substance was kept after being brought to Police Station and in whose custody same was given. The FSL expert PW Shakeel Ahmad has stated that seized substance was brought to the Directorate by PW No.5, Manzoor Ahmed but said witness has not in his deposition narrated that it was he who took the substance to FSL. Even the Magistrate has not mentioned the name of the person who brought the substance to him. It is stated in the letter send to Directorate FSL that the substance was brought to him by police Station, Khanyar. The veracity of the prosecution story stand discounted also from what has been stated by PW SDPO, Ali Mohammad Shah and PW Mir Rasiq about the mode of recovery. PW Mir Rasiq has stated that substance was recovered from pocket of pent of the accused whereas PW Ali Mohammad Shah Stated that it was in the hand of the accused and he had hidden it under his Pheran. PW Mir Rasiq has also made the whole prosecution story doubtful by showing lack of knowledge of the persons who accompanied him during Naka and the person who had searched the accused. Improbability of the prosecution story is also brought forthby PW No. 4 Mir Rasiq who had been SHO, Police Station Khanyar at the relevant time by stating that he does not know whether SHO Police Station Rainawari was also present on spot though PW No. 3 and 5 including PW SDPO stated that SHO Police Station, Rainawari was also present on spot. The Investigating Officer has also remained silent as to why any civilian was not cited as a witness though the recovery has taken place at a busy place where presence of independent or civilian witness could not be ruled out.” 5. The Trial court has come to the conclusion that prosecution has failed to (prove) bring home the guilt to the accused beyond reasonable doubt. 6. Learned counsel for appellant submits that the Trial Court has failed to appreciate the evidence in its right perspective and made a wrong observation despite the prosecution having produced the witnesses proving the charges. 7. On the other hand, learned counsel for the respondent/accused submits that no failure could be found in the judgment of the Trial court as on the basis of witnesses produced, the accused/respondent could not be convicted because the witnesses do not prove the charges leveled against him. The prosecution has not complied with the provisions of the Act and the observance of which is mandatory. 8. To appreciate the grounds taken in the appeal and the submissions made by learned counsel for parties, it becomes necessary to give brief resume of the witnesses produced by the prosecution and recorded by the Trial court hereunder: (a) PW No. 1 Dy. SP Ali Mohammad Shah has stated in his statement that on 02.10.2004 he was posted as SDPO Khanyar and during Naka on that day he along with other police personnel found accused Shabir Ahmed Rather roaming under suspicious circumstances and on his personal search one parcel containing charas in the Polythene bag wrapped under corn leaves which weighted by the SHO concerned was found 03 kgs and 200 grams. A seizure memo was prepared on which he put his signatures and no further action was taken on spot. However, further action in the matter was taken by the other officers. (b) PW No. 2. SI Mushtaq Ahmad, SHO Police Station Rainawari has stated that on the same day i.e. 02.10.2004 along with SDPO and other two officials was on patrolling duty and during conducting search of passers-bye at Ikhwan Chowk the accused/respondent who was roaming in suspicious circumstances was also searched and on his search a bag of charas wrapped in corn leaves was found in his hand. Same was seized on spot and sent a docket to Police Station regarding the occurrence. Same was seized on spot and sent a docket to Police Station regarding the occurrence. The seized charas after weighting was 3 Kgs and 200 grams out of which 100 grams was taken for expert opinion, after sealing the same was separated. However, SI Mushtaq Ahmed PW No. 2 is not in a position to identify the accused today in the court. (c) PW No. 3 Cons. Ghulam Nabi has stated that on the day i.e 02.10.2004 he, SHO P/S Khanyar, Rainawari and SDOP Khanyar were present at Ikhwan Chowk where they have laid a Naka and about 1.00 PM they found the accused under suspicious circumstances on sport and on the directions of SDPO the accused was called and searched. On search a bag containing charas was recovered from him. SDPO seized the same and witness was told to get the weighing scale from nearby shop and on measuring, it was found 3 kgs and 200 grams. Out of the seized charas, 100 grams were sealed separately and rest was also sealed. Thereafter SHO P/S Khanyar sent a docket to the Police Station through Constable Javeed Ahmad. Seizure memo was prepared and accused/respondent was also arrested on spot. (d) PW No. 4 Inspector Mir Rasiaq has stated that he was posted as SHO Police Station Khanyar on 02.10.2004. On that day he and SDPO were present at Ikhwan Chowk where a Naka was laid down. During Naka they found that the accused/respondent was roaming in suspicious circumstance. On his search Charas like substance was recovered from his possession. Seizure memo of the substance was prepared on spot and investigation of the said case was entrusted to SI Manzoor Ahmad. (e) PW No. 5 Inspector Manzoor Hussain has stated that while posted in Police Station Khanyar on 02.10.2004, he under the supervision of SDPO were conducting search in the area and during checking at Ikhwan Chowk, the accused/respondent was found roaming in suspicious circumstances and on searching charas like substance was recovered for which he could not tender any explanation. A docket was sent to Police Station for registration of a case and investigation was entrusted to him. On weighting the seized charas was found 300 kgs and 200 grams. Site map was prepared and statement of witness was recorded. The seized charas like substance was sent for expert opinion to FSL where same was detected to be charas. A docket was sent to Police Station for registration of a case and investigation was entrusted to him. On weighting the seized charas was found 300 kgs and 200 grams. Site map was prepared and statement of witness was recorded. The seized charas like substance was sent for expert opinion to FSL where same was detected to be charas. The Opinion from FSL was got by him and accused present in the court is same person as was arrested by them on the day of occurrence. (f) PW No. 6 Shakeel Ahmad, has stated that while posted as Scientific Officer FSL on 07.02.2004 he received one sealed packet enclosed within cloth bearing six intact seals forwarded for examination by SDPO, Khanyar sent through ASI Manzoor Ahmad. On opening the packet, it was found to contain greenish coloured material in from of sticks weighing 100 grams. Same were subjected to analysis and was detected as charas The report EXPW6 bears his signatures. One of prosecution witnesses, Constable Javeed Ahmad, has not been examined and prosecution evidence was closed on 03.12.2013. 9. The accused/respondent on 20.02.2014 while confronting with the prosecution evidence in terms of Section 342 Cr.P.C. has stated that he is innocent and he has not committed any offence and that the witnesses being all police personnel have given false statements in order to implicate him in the offence of which he has no knowledge. 10. Perusal of the record as also impugned judgement reveals that prosecution has not produced Executive Magistrate who is said to have resealed the sample. He has not even been cited as witness in the calendar of challan, therefore taking the sample before the Executive Magistrate for resealing has not been proved and, as such, the mandatory provision of law has not been followed by the I.O. which makes the prosecution story doubtful. The prosecution has also not cited any independent person as witness nor has the I.O. tried to approach any civilian to be a witness of the occurrence as required under Section 114 (g) of Evidence Act. 11. As per the documents on record, contraband was recovered on 02.10.2004 at 7.30 AM. The prosecution has also not cited any independent person as witness nor has the I.O. tried to approach any civilian to be a witness of the occurrence as required under Section 114 (g) of Evidence Act. 11. As per the documents on record, contraband was recovered on 02.10.2004 at 7.30 AM. The certificate of reseal is on record, which shows that the parcels were reaseled on 06.10.2004, that means after four days when the contraband was sealed and sample separated by the I.O. The contraband as well as sample was required to be kept in a safe custody. The sample packet and the rest of contraband were tampered. As per the report of the FSL dated 20.10.2004, one sealed packet enclosed within cloth bearing (6) intact seals would show that the sample which was resealed by Executive Magistrate on 06.10.2004 was received on 07.10.2004 after one day of its alleged resealing. Again, no explanation has been given or statement made to show that sample was in safe custody and there was no occasion of its tampering. The contraband as well as sample was required to be kept in safe custody in the Malkhana of the Police Station and there was no chance of it being tempered with. The contraband as well as sample was required to be kept in safe custody in the Malkhana of Police Station and the entries were also required to be made in the Malkhana Register regarding depositing of the sample and the seized material/contraband. This was necessary so as to show that there was no chance of contraband and sample being tampered when there is no such witness produced by prosecution in this case. Even the Investigation Officer is silent about the fact. He has not stated that from the date the contraband was seized, sample sealed, to the day, i.e., 06.10.2004 when the sample was resealed by Executive Magistrate, same was kept in the safe custody; even from the day when it was resealed to the day it was delivered to the FSL as to whether the sample was kept in safe custody. Since there is no witness to establish that seized material and sample was kept in safe custody after its recovery, there was every apprehension of sample being tempered. Since there is no witness to establish that seized material and sample was kept in safe custody after its recovery, there was every apprehension of sample being tempered. The prosecution case is that Charas was recovered in the form of sticks wrapped in Maiz corns but “Frad Jama Talashi” EWPW-1 does not indicate the number of sticks of charas, if any, recovered on spot. Another infirmity with the sample is about resealing by the Executive Magistrate and sending of sample to FSL. The Executive Magistrate, who has resealed the sample, has neither been cited nor produced as witness, even who produced the sample for resealing before the Magistrate is not stated in the letter/ certificate of the resealing. 12. The veracity of prosecution story stands discounted also from what has been stated by PW SDPO, Ali Mohammad Shah, and PW Mir Rasiq, about mode of recovery. PW Mir Rasiq has stated that substance was recovered from pocket of pant of accused whereas PW Ali Mohammad Shah stated that it was in the hand of accused and he had hidden it under his Pheran. PW Mir Rasiq has also made the whole prosecution story doubtful by showing lack of knowledge of the persons who accompanied him during Naka. Improbability of the prosecution story is also brought forth by PW No.4, Mir Rasiq who had been SHO, Police Station Khanyar, at the relevant time as he has stated that he does not know whether SHO Police Station Rainawari was also present on spot though PW No.3 and 5 including PW SDPO stated that SHO Police Station, Rainawari are stated to have also been present on the spot. 13. Having regard to what has been stated above and after going through the judgment passed by the Trial Court, I find that the Trial court has properly appreciated the witnesses produced before it and appreciation of witnesses by the Trial Court does not suffer from any illegality or irregularity, therefore, this appeal is held to be without any merit and the order of acquittal passed by the Trial court is on merit. Hence the appeal is dismissed. Interim direction, if any, shall stand vacated. 14. Copy be sent down along with the record.