Rajiv Sharma, J.
1. This appeal is instituted against the judgment dated 8.6.2012 rendered by the Special Judge, Chamba in Sessions Trial No. 5 of 2012, whereby the appellant-accused (hereinafter referred to as the "accused" for convenience sake), who was charged with and tried for offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for a period of one year.
2. Case of the prosecution, in a nutshell, is that on 27.11.2011, PW-14 Head Constable Madan Lal alongwith HHC PW-4 Budhi Singh, HHC Chaman Singh, PW-3 Constable Subhash Chand and PW-5 Constable Sanjay Kumar had set up a Nakka at Khairi Bridge, Banikhet at 4.00 P.M. At about the same time, accused was noticed coming from Padhar road. On seeing the policy party, he tried to turn back. He was carrying a bag in his hand. He was detained at the spot. A person standing in the rain shelter on Pathankot road, namely, PW-1 Surinder Kumar was associated as independent witness by PW-14 Madan Lal. PW-14 informed the accused of his legal right to be searched in the presence of a Magistrate or a gazetted officer vide memo Ex. PW-1/A. Accused reportedly opted to be searched by the police party. Accused was carrying a bag, which was of white and blue colour. It was opened. It contained one polythene bag of red and blue colour and inside the bag, charas weighing 1.500 grams was recovered vide memo Ex. PW-1/C. The contraband so recovered came to be sealed in a cloth parcel with 5 seals of impression ''T''. Specimen of seal "T" was also taken on separate cloth piece vide Ex. PW-1/D. The Investigating Officer completed the codal formalities of filling up the NCB forms and prepared the spot map. Constable Subhash Kumar was sent alongwith Rukka for registration of FIR to Police Station, Dalhousie. FIR Ex. PW-10/B was registered. Charas was produced before the ASI Onkar Singh, officiating S.H.O., who resealed the parcel with 3 seals of impression ''D''. He deposited the same with MHC Arun Kumar. The contraband was sent to F.S.L. Junga for analysis. The report of F.S.L. Junga is Ex. PX. Police investigated the case and the challan was put up in the court after completing all the codal formalities.
3. Prosecution examined as many as 13 witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He has denied the case of the prosecution in entirety. Learned trial Court convicted and sentenced the accused, as noticed hereinabove.
4. Mr. Chaman Negi, learned counsel for the accused has vehemently argued that the prosecution has failed to prove its case against the accused.
5. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment passed by the trial Court.
6. We have heard the learned counsel for the parties and have gone through the record meticulously.
7. PW-1 Surinder Kumar has deposed that he was present near Khairi Bridge in a rain shelter on 27.11.2011. He was waiting for a bus. The police had laid Nakka. The police was checking the vehicles. After about 5-6 minutes, police called him. A boy was noticed coming from Banikhet side towards Pathankot. The boy on seeing the police tried to go back. He was nabbed. The police asked the accused whether he wanted to give his search to some other person. The boy opted to give his search to the police present on the spot. On search of the boy, contraband was recovered. It was sealed in a cloth parcel. He was declared hostile. He has admitted his signatures on memo Ex. PW-1/A. He was cross-examined by the learned counsel for the accused. He has admitted that officers of the N.H.P.C. were available. He has also admitted that there were about 4 roads leading to Khairi, Pathankot, Banikhet and Mail Chuhan. There were many people at the spot. He had appeared in 2-3 cases as a witness at Dalhousie. The police man had gone to bring cloth, weights and scale. There were also a Rehri and shop at Khairi Bridge.
8. PW-2 Ranjider Kumar has deposed the manner in which accused was apprehended at 4.00 P.M. His carry bag Ex. P-4 was searched, polythene bag Ex. P-1 and contraband Ex. P-2 were recovered. The I.O. had affixed 5 impressions of seal ''T'' on the cloth parcel and the seal after use was handed over to witness Surinder Kumar. I.O. also filled in NCB form at the spot. Thereafter, rukka was sent to Police Station, Dalhousie for registration of the FIR. In his cross-examination, he has deposed that no one had gone to get the weights and scale.
9. PW-3 Subhash Chand has deposed that the police had laid Nakka near Khairi Bridge at 4.00 P.M. At about 5.30 P.M., I.O. Madan Lal handed over a rukka to him to be taken to Police Station, Dalhousie for registration of FIR.
10. Statements of PW-4 Budhi Singh, PW-5 Sanjay Kumar, PW-6 Kusum Lata and PW-7 Sulakha are formal in nature.
11. PW-8 Hem Raj has deposed that on 27.11.2011 at about 10.15 P.M., HC Madan Lal produced a sealed parcel containing 1.500 Kgs of charas bearing 5 seal impressions of seal ''T'' before the ASI Onkar Singh alongwith accused. The ASI resealed the parcel with 3 impressions of seal ''O'' in his presence. Sample of seal Ex. PW-8/B was prepared. He has also admitted that there were many houses around the Police Station.
12. PW-9 Dharvinder Kumar has deposed that on 28.11.2011, MHC Arun Kumar handed over a parcel stated to be containing 1.5 kgs of charas bearing 5 impressions of seal ''D'' and 3 impressions of seal ''O'' alongwith sample seals of ''O'' and ''T'', copy of FIR, NCB forms and a docket vide RC No. 135/11 to be deposited with F.S.L. Junga. He deposited the articles in the F.S.L. Junga on 29.11.2011.
13. PW-10 Arun Kumar has deposed that on 27.11.2011 at about 6.10 P.M., a rukka was received through constable Subhash Chand. FIR Ex. PW-10/A was registered. At about 10.30 P.M., the officiating SHO ASI Onkar Chand handed over the parcel Ex. P-3 stated to be containing 1.500 Kgs of charas bearing 5 seals of impression ''T'' and 3 seals of impression ''O'' alongwith NCB forms, sample seals of ''O'' and ''T''. He made the entry of articles in Register No. 19 at Sr. No. 147. The copy of the same was Ex. PW-10/C. He sent the articles to F.S.L. Junga through Constable Dharvinder Kumar vide RC No. 135/11. He deposited the same in F.S.L. Junga.
14. Statement of PW-11 Subhash Chand is formal in nature.
15. PW-12 ASI Onkar Singh has deposed that at about 10.15 P.M. HC Madan Lal produced before him a sealed parcel stated to be containing 1.500 kgs of charas, which was duly sealed with 5 impressions of seal ''T'' alongwith NCB forms and sample seal. He resealed the parcel with 3 seals of impression ''O''. He has taken the sample of seal ''O'' in a cloth piece vide Ex. PW-8/B. He affixed the sample of the seal on the NCB form and filled in the relevant columns on the NCB forms. In his cross-examination, he has admitted that there were about 15-20 people on the spot.
16. Statement of PW-13 Govind Ram is formal in nature.
17. PW-14 Madan Lal has deposed the manner in which the accused was nabbed, search was conducted, contraband was recovered and rukka was prepared. It was sent to the Police Station.
18. The contraband was produced while recording the statement of PW-14 Madan Lal, i.e. Ex. P-3. It was carrying 5 seal impressions of seal ''T'', 3 seal impressions of seal ''O'' and 5 seal impressions of ''FSL'' at the time of opening the same before the Court. The contraband was sealed on the spot as per the statement of PW-14 Madan Lal with 5 seal impressions of seal ''T''. The contraband was resealed by ASI Onkar Singh and he put 3 seal impressions of seal ''O''. Thereafter, the contraband was sent for analysis to F.S.L. Junga. When the parcel was sent to F.S.L. Junga, the same was bound to be opened for the purposes of analysis and thereafter the seals of FSL were to be put. However, the case property produced in the Court was carrying 5 seal impressions of seal ''T'', 3 seal impressions of seal ''O'' and 5 seal impressions of seal ''FSL''. If the docket was opened at F.S.L. Junga, seals "T'' and ''O'' were to be broken for the purposes of analysis of contraband. 5 seals of seal impression ''T'' and 3 seals of seal impression ''O'' could not at all be intact when the contraband was opened at F.S.L., Junga for the purposes of examination. The case property was produced in Malkhana vide Ex. PW-10/C. It was sent through constable for examination. There is no entry in the Malkhana register when the case property was received back from F.S.L., Junga. There is also no entry when the case property was taken out from the Malkhana to be produced before the Court. There is no DDR to this effect. Similarly, there is no entry in the Malkhana register when the case property was returned after the same was produced before the Court. There has to be entry of every article deposited in the Malkhana and when it is taken out. Who has taken the case property to the Court, neither he has been produced nor there is any DDR to this effect. This casts doubt whether the case property, which was deposited in the Malkhana, sent to F.S.L., Junga, received back and produced in the court, was the same, which was recovered from the accused in view of 5 seals of seal impression ''T'', 3 seals of seal impression ''O'' being intact at the time of production before the Court. There was also no corresponding entry, as noticed hereinabove, when the case property was taken out and deposited in the Malkhana. It also casts serious doubt about the prosecution story. Moreover, in this case, independent witness PW-1 Surinder Kumar produced by the prosecution was declared hostile. He appears to be a stock witness since he has admitted that he has appeared as a witness in 2-3 cases. The Police has not examined witnesses though available on a busy junction.
19. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the case for offence under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 beyond reasonable doubt against the accused.
20. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 8.6.2012 rendered in Sessions Trial No. 5 of 2012 is set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case.
21. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.
