JUDGMENT : RAMESH CHAND MALVIYA, J. Heard Mr. Ali Muqtadin Ahmad, learned counsel for the appellant and learned APP for the State Mr. Abhay Kumar. 2. The present appeal has been filed under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the judgment of conviction and order of sentence dated 24.10.2008 passed in Sessions Trial No. 21 of 1996 in connection with Sikta (Kangali) P.S. Case No. 06 of 1994 passed by the learned Additional District and Sessions Judge, F.T.C- I, West Champaran, Bettiah, whereby and where under the appellant has been convicted under Sections 20-B(ii), 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1995 (hereinafter referred to as the ‘Act’) and has been sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- and in default of payment of fine further imprisonment for 3 months simple imprisonment for the offence under Section 20-B(ii) of the Act and further 10-10 years rigorous imprisonment and fine of Rs. 50-50 thousand and on account of non-payment of fine further 6 months, each of simple imprisonment for the offences under Sections 22 and 23 of the Act and both shall run concurrently. 3. The case of the prosecution in brief, is that on 21.01.1994 at about 15:00 hours, the informant got information that police is coming for the search and due to fear of police Mansoor Alam, Amanullah Mian and Parvej Alam were fleeing away from the house of Mansoor Alam to conceal a basket. It is further alleged that informant along with Asnarfi Firoj Alam and Ajim caught them near the road. In the meantime, Officer-in- charge of Kangli Police came there and in the presence of witnesses 16 kg of charas were kept in a plastic bag was handed over to the police. On the basis of same, the aforesaid case was instituted on 22.01.1994 at about 10:15 hours against the appellant and two other accused persons. 4. After institution of the present case, the police investigated the case and submitted charge sheet under Sections 20-B(ii), 22 and 23 of the Act against the appellant and two other accused persons, thereafter, on 05.06.1995, cognizance was taken and on 19.08.2005 charges were framed and trial commenced. 5. 4. After institution of the present case, the police investigated the case and submitted charge sheet under Sections 20-B(ii), 22 and 23 of the Act against the appellant and two other accused persons, thereafter, on 05.06.1995, cognizance was taken and on 19.08.2005 charges were framed and trial commenced. 5. On behalf of the prosecution, total 13 witnesses were examined to substantiate the charges leveled against the accused/appellant, out of them, PW-1 Rabindra Singh, PW-2 Jokhu ansari, PW-3 Shamsul Mian, PW-4 Gauri Ram, PW-5 Mahendra Ram, PW-6 Atiullah Mian, PW-7 Firoj Alam, PW-8 Asarfi Sah, PW-9 Mumtaj Khan and PW-10 Md. Mushtafa (informant). The three witnesses who were not examined are IO Tripurari Sharma, SI cum O/C Kangli P.S. Siya Ram Sharma and PW Afsar Mian S/o Md. Sharif Mian. 6. PW-1 to PW-9 were declared hostile by the prosecution. PW-1 Ravindra Singh during course of examination deposed that he is neighbor of appellant as such identify him but he had no knowledge about the occurrence as such declared hostile. PW-2 Jokhu Ansari deposed that he is Co- Villager of the appellant as such identifies him but denied to make any statement before the police as such declared hostile, PW-3 Shamsul Mian also repeated the statement of PW-2, PW-4 Gauri Ram deposed that the appellant had enmity with the informant's father Lajeem Mian and nothing had recovered in his presence PW-5 Mahendra Ram deposed that his statement was not recorded by the police nor any thing was recovered in his presence rather he had gone to earn his livelihood at outside of the village. PW-6 Atiullah Mian said that the conduct of the appellant is very good PW-7 Firoz Alam was said to be the seizure list witness deposed that however the signature on seizure list is his own signature which has made exhibit 1 but he reminded that he had said to make his signature on a blank paper. PW-8 Asharfi Sah deposed the same version as well as PW-7 whose signature made exhibit 1. PW-9 Mumtaj Khan said that he has no knowledge about the alleged occurrence since he was not present at village on the alleged date of occurrence but he knows that the appellant Mansoor Alam is a good person. 7. PW-8 Asharfi Sah deposed the same version as well as PW-7 whose signature made exhibit 1. PW-9 Mumtaj Khan said that he has no knowledge about the alleged occurrence since he was not present at village on the alleged date of occurrence but he knows that the appellant Mansoor Alam is a good person. 7. PW-10 in his examination-in-chief stated that the occurrence is of 21.01.1994 and at that time he was at his door and heard that police came at appellant’s house and searched his house. PW-10 saw Mansoor Alam carrying paddy in a basket. The informant got suspicious and caught Mansoor then Mansoor left the basket there and ran towards south. The informant saw that inside the paddy in the basket, there was a yellow plastic packet which contained charas powder then informed police about the same. When the police came, he gave the said charas to the police and after weighing it was 16 kg. The informant has proved in his own writing that he had prepared his application. The informant also stated that he had signed on the seizure list prepared by the police. The informant has proved his signature on the seizure list as Exhibit 1/2. 7.i. During the cross-examination, the informant has stated that police came in the village and many people gathered at the house of appellant and searched the house of the appellant but did not recovered any articles. He further stated he did not see the basket and on request of the police he wrote the application. He further stated in para-4 of his deposition that police took his signature on blank paper. 8. Learned counsel for the appellant submit that the trial Court erred in convicting the appellant for the charges leveled against him, in-spite of having no materials available on record, except for the oral evidence of the prosecution witnesses. He further stated in para-4 of his deposition that police took his signature on blank paper. 8. Learned counsel for the appellant submit that the trial Court erred in convicting the appellant for the charges leveled against him, in-spite of having no materials available on record, except for the oral evidence of the prosecution witnesses. He further submitted that there are material discrepancies in the statements of the witnesses as it appears from the statements of the witnesses that the prosecution case against the appellant is absolutely false and concocted as all the witnesses PW-1 to PW-9 have denied about such occurrence rather said that the appellant posses a good moral character while PW-4 Gauri Ram stated in his deposition that since the appellant had previous enmity with the father of PW-10 namely Lajeem Mian and the present case is the result of the same. He further submitted that the learned trial Court has failed to appreciate the enemocity of the informant from the appellant’s family since a long time for that purpose a complaint case no. 631C of 1994 was filed by the appellant against the informant (PW-10) under Sections 368, 365, 363, 347, 342 and 322 of the Indian Penal Code in the year 1994 and the present case was instituted by the informant in connivance with the police. But the trial Court by ignoring the materials available on records passed the order of conviction which is not only bad and illegal but also miscarriage of justice. 8.i. Learned counsel for the appellant further submitted that 3 charge-sheeted were not examined by the trial court which vitiates the criminal prosecution. He further stated that this appeal is of the year 2008 and the occurrence is of the year 1994, whereas, the appellant have suffered and undergone persistent agony on the account of the same and are struggling for the defence since last 30-31 years. So, the appellant should have been acquitted from the conviction as sentenced against him. 9. On the other hand, learned Additional Public Prosecutor has vehemently opposed this appeal and submits that there was recovery of heroin from the person of the accused- appellant and thus in view of the aforesaid statements and the evidence on record, learned trial Court had rightly convicted the appellant and the present appeal should not be entertained. 10. 9. On the other hand, learned Additional Public Prosecutor has vehemently opposed this appeal and submits that there was recovery of heroin from the person of the accused- appellant and thus in view of the aforesaid statements and the evidence on record, learned trial Court had rightly convicted the appellant and the present appeal should not be entertained. 10. At this stage, I would like to appreciate the relevant extract of entire evidence led by the prosecution and defence before the Trial Court. 11. Having deeply studied and scrutinized the facts of the case and the materials available on record, it is evident to note that FIR was lodged against three named accused persons including the appellant with an allegation that the accused persons were caught on spot with the said article but they were not present when the police came there and only a plastic bag containing 16 kg of charas was handed over to police by the informant and prosecution witnesses 1 to 9 were declared hostile. Further, the contents of the FIR has also not been proved as the evidence of the IO has not been examined during the course of trial and non-examination of Investigating Officer concerned is fatal to the case of the prosecution. The Supreme Court in Habeeb Mohammad vs The State of Hyderabad 1954 AIR 51, 1954 SCR 475 pointed out that- “It was the duty of the prosecution to examine all material witnesses who could give an account of the narrative of the events on which the prosecution is essentially based and that the question depended on the circumstances of each case. In our opinion, the appellant was considerably prejudiced by the omission on the part of the prosecution to examine Biabani and the other officers in the circumstances of this case and his conviction merely based on the testimony of the police jamedar, in the absence of Biabani and other witnesses admittedly present on the scene, cannot be said to have been arrived at after a fair trial, particularly when no satisfactory explanation has been given or even attempted for this omission. A police Jamedar, in the absence of Biabani and other witnesses admittedly present on the scene, cannot be said to have been arrived at after a fair trial, particularly when no satisfactory explanation has been given or even attempted for this omission.” 12. A police Jamedar, in the absence of Biabani and other witnesses admittedly present on the scene, cannot be said to have been arrived at after a fair trial, particularly when no satisfactory explanation has been given or even attempted for this omission.” 12. The Hon’ble Apex Court in the case of Munna Lal Vs. State of Uttar Pradesh, reported in 2023 SCC OnLine SC 80 , whose relevant paragraph Nos.- 28 and 39 of the said judgment are reproduced here-in-below: “28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into ‘settled principles of law.’ These are: (a)......... (b)......... (c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version. (d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non-examination would not render the prosecution case fatal. (e)......… “39. Secondly, though PW-4 is said to have reached the place of occurrence at 1.30 p.m. on 5th September, 1985 and recovered a bullet in the blood oozing out from the injury at the hip of the dead body, no effort worthy of consideration appears to have been made to seize the weapons by which the murderous attack was launched. It is true that mere failure/neglect to effectseizure of the weapon(s) cannot be the sole reason for discarding the prosecution case but the same assumes importance on the face of the oral testimony of the so- called eye- witnesses, i.e., PW-2 and PW-3, not being found by this Court to be wholly reliable. The missing links could have been provided by the Investigating Officer who, again, did not enter the witness box. Whether or not non-examination of a witness has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The missing links could have been provided by the Investigating Officer who, again, did not enter the witness box. Whether or not non-examination of a witness has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The reason why the Investigating Officer could not depose as a witness, as told by PW-4, is that he had been sent for training. It was not shown that the Investigating Officer under no circumstances could have left the course for recording of his deposition in the trial court. It is worthy of being noted that neither the trial court nor the High Court considered the issue of non-examination of the Investigating Officer. In the facts of the present case, particularly conspicuous gaps in the prosecution case and the evidence of PW-2 and PW-3 not being wholly reliable, this Court holds the present case as one where examination of the Investigating Officer was vital since he could have adduced the expected evidence. His non- examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case.” emphasis applied 13. Further, as per the submission of the learned counsel for the appellant the learned trial Judge did not put any questions to the accused/appellant under Section 313 Cr.P.C. regarding the chemical report because of which the accused appellant was not able to express the circumstances against him and it caused prejudice to his case and the same is correct in the opinion of this Court. The chemical examiner who prepared the FSL report has also not been examined by the trial Court. In light of the same, the veracity of the FSL report is doubtful. Moreover, there are discrepancies regarding the sequence of events and the presence of individuals at the place of occurrence. The chemical examiner who prepared the FSL report has also not been examined by the trial Court. In light of the same, the veracity of the FSL report is doubtful. Moreover, there are discrepancies regarding the sequence of events and the presence of individuals at the place of occurrence. Further, there is no eyewitnesses to the said occurrence and all the PW’s were declared hostile except the informant and ongoing enmity between informant and accused/appellant creates a material lacuna in the effort of the prosecution to nail the appellant, thereby creating reasonable doubt in the prosecution case and the learned trial Court failed to scrutinize the evidence brought on record regarding deficiencies, drawbacks and infirmities crept during course of trial and passed the impugned judgment in complete ignorance of criminal jurisprudence. 14. Considering material discrepancies in the statement of witnesses and the doubtfulness over the truth of the FSL report, prosecution has failed to establish this case beyond shadow of all reasonable doubt, therefore, in such circumstances, it may not be proper to convict the appellant/accused on the materials available on record. Hence, the judgment of conviction and order of sentence in this present matter is fit to be set aside 15. Hence, the Judgment of conviction and order of sentence dated 24.10.2008 in Sessions Trial No. 21 of 1996 arising out of Sikta (Kangali) P.S. Case No. 06 of 1994, passed by learned Additional District and Sessions Judge, Fast Track Court No-1, West Champaran is set aside and the accused/appellant is acquitted from the charges leveled against him. As the appellant is on bail, he is discharged from liability of his bail bond. 16. Accordingly, this appeal is allowed.