Chander Bhusan Barowalia, J.—The present appeal is preferred by the appellant/State under Section 378 of the Criminal Procedure Code assailing the judgment of acquittal, dated 31.5.2011, passed by the learned Special Judge, Fast Track Court, Chamba, District Chamba,H.P., in Sessions Trial No.11 of 2011, whereby the accused was acquitted of the charges framed against him under Section 20 of the Narcotic Drugs & Psychotropic Substances Act,1985 (hereinafter referred to as ''the Act'''').
2. Briefly stating, as per prosecution story, facts giving rise to the present appeal are that on 26.2.2011, at about 1.00 p.m., a secret information was received by ASI, Jeet Singh that the accused deals in smuggling of Charas and has gone towards Chamba side for bringing Charas and if nakka is laid at Bonkhari mor (curve), the accused can be nabbed with Charas. To this effect, a daily diary report Ex.PW-6/A, was entered and sent to the Superintendent of Police, Chamba, through Constable, Subhash Chand No.572. After sending information, Investigating Officer/ASI, Jeet Singh took out I.O. kit and proceeded to the spot along with Constable, Anuj Kumar and Home Guard, Palwinder. The witnesses Vijay Kumar and Surinder were found standing at Toll Tax Barrier, where they were waiting for bus. He apprised Vijay and Surinder about the secret information of possession of Charas by the accused and whether or not they were ready to accompany him to Bonkhari mor. Thereafter, they both agreed to accompany him to Bonkhari mor and, as such, they were made to sit in the vehicle (Alto Car) No.HP-20D-0997, belonging to the Investigating Officer. The Investigating Officer, along with these witnesses and Constable, Anuj Kumar and Home Guard, Palwinder reached at Bonkhri mor at about 1.45 p.m. and laid a nakka there and started waiting for the accused by concealing their presence below the road. It has been averred that at about 3.00 pm, as per the description given by the secret source, the accused having same description, was seen coming on Chakra road, who was stopped by the Investigating Officer, who disclosed his name, as Darshan Lal son of Prithi, resident of near Kali Mata Mandir, Pathankot. The accused was intimated that he was being suspected of carrying Charas and his personal search was required to be taken. He was also apprised of his legal right to be searched before some Gazetted Officer or Magistrate, in writing, but the accused agreed to be searched by the police at spot, per memo Ex.PW-2/A. Thereafter, all the police officials and witnesses Vijay and Surinder gave their search to the accused, per memo. Ex.PW-1/A. Thereafter, personal search, of the accused was taken and during search, a polythene packet was recovered from him, which had been concealed by the accused below the belt of his trouser on the front side. The word ''Sahajada garments'' was printed on the said polythene packet and on opening it, one more packet of Khakhi colour was recovered, containing black coloured hard substance in the shape of candles and balls, which, on smell and experience, was found to be Charas. Thereafter, the Charas was weighed, which was found 1kg.540 grams, with polythene packet. The Charas, so recovered, was put in the Khakhi colour packet, which in turn, was put in the packet of ''Sahajada garments'' and then the same was parceled and sealed in a piece of cloth by affixing three seals of impression ''K''. Sample seal Ex.PW-1/B, was taken separately. NCB forms Ex.PW-10/F were completed in triplicate and seal was embossed thereon and the seal was handed over to witness Surinder and thereafter the case property was taken into possession vide memo Ex.PW-1/C. Thereafter, rukka Ex.PW-13/A (mark B) was written and sent to the Police Station, through Constable, Anuj Kumar for registration of the case on the basis of which F.I.R. Ex.PW-10/A was registered. On the spot inspection, map Ex.PW-13/B was prepared. The accused was arrested and communicated about the grounds of his arrest, vide memo Ex.PW-1/D and his personal search was taken per memo Ex.PW-1/E. Thereafter, statements of the witnesses were recorded, as per their versions. Thereafter, the accused, case file and the case property brought to the Police Station for resealing the same and produced to the S.I. Vishwas Kumar, Additional S.H.O., who also resealed the parcel in the presence of Constable Hem Raj by affixing two seals of seal impression ''T'' and also took sample seal of ''T'' on Ex.PW-1/B and embossed two seals of ''T'' in NCB forms and filled relevant columns of NCB forms Ex.PW-10/F and prepared reseal memo Ex.PW-7/A and, thereafter, handed over the case file to the Investigating Officer and deposited the case property i.e. parcel NCB forms, sample seals with MHC and the accused was taken into custody. MHC entered the case property in the Malkhana register, vide Ex.PW-10/B. Special report of the case, Ex.PW-3/B, was prepared and sent to the Superintendent of Police, through Constable, Anil Kumar, who deposited the same with Head Constable Subhash Chand, Reader to the Superintendent of Police at about 3.45 p.m., which was produced before the Superintendent of Police, Chamba at 3.50 p.m. On 27.2.2011, at about 1.00 p.m., MHC, Indu Balla entrusted the aforesaid parcel, sample seals, NCB forms and copy of seizure memo and copy of FIR along with document to Constable, Suresh Kumar No.338, vide R.C. No.22/11, Ex.PW-10/C for being deposited in F.S.L., which he deposited in F.S.L. on 28.2.2011 and handed over the receipt to her. Daily diary report No.26-A, Ex.PW-10/D and daily diary report No.27-A, dated 26.2.2011, Ex. PW- 10/E, were procured. Statements of witnesses were also recorded. The report of Chemical Analyst, F.S.L., Junga Ex.PX was received that the quantity of resin found in the Charas was 28.88% w/w and the same were extract of cannabis and sample of Charas.
3. A copy of the challan and other documents were supplied to the accused. On consideration, the accused was charged for the commission of offence under Section 20 of the NDPS Act, to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined, as many as, thirteen witnesses, in order to substantiate the charge against the accused.
4. After completion of the prosecution evidence, the accused was separately examined under Section 313 Cr.PC. The accused denied the prosecution case in its entirety and had not led any evidence in defence. After the completion of the trial, the learned trial Court acquitted the accused of the charges framed against him.
5. Heard. Mr. Virender Verma, Additional Advocate General has vehemently argued that the Court below has committed illegality in acquitting the accused and has not appreciated the evidence correctly and to its true perspective. The learned Court below has failed to appreciate that the prosecution has proved the guilt of the accused conclusively and beyond reasonable doubt and so the judgment of acquittal may be set-aside and the accused be convicted.
6. On the other hand, Mr. Vivek Singh Thakur, learned counsel for the respondent, has argued that the accused is innocent and the only conclusion, after appreciating the evidence on record, leads towards the innocence of the accused and there is no merit in the appeal and the same be dismissed and the accused be acquitted.
7. To appreciate the arguments of the learned counsel for the parties, we have gone through the record of the case in detail.
8. PW-1, Surinder Singh has stated that he was posted as Chowkidar in Gram Panchayat, Belly. He has further stated that he, along with police officials and one Home Guard and Vijay Kumar went with them to Bonkhari Mod. He has also stated that they were sitting below the road and at about 3.00 p.m., a person appeared from Chakra road side. The accused disclosed his name, as Darshan Lal, resident of Pathankot. The accused was told that a secret information was gathered regarding possession of Charas by him and his search was required to be taken. During search, a polythene packet was recovered from him, which had been concealed by the accused below the belt of his trouser on the front side, which was found containing Charas. He has further deposed that before recovering Charas, no document was prepared and the documents were prepared simultaneously at the time of recovery of Charas. He has also identified his signatures and admitted that his statement was recorded by the police. He has denied that the accused had been apprised that he has a legal right to give his search before a Magistrate or Gazetted Officer. He admitted that before taking search of the accused, the police officials had given search to the accused, and he and Vijay also gave their search to the accused and memo. Ex.PW-1/A to this effect was prepared. He did not remember whether ''Sehjada Garments'' was written on the polythene packet, which was recovered from the accused. In his cross-examination, he admitted that Vijay Kumar, who was resident of village Bathari, was known to him since his childhood. He has also deposed that he was not aware about the profession of Vijay Kumar and that Village Belli is on the Banikhet-Pathankot Road towards Pathankot, whereas Bathari is on Banikhet- Chamba road towards Chamba. He has further deposed that ASI, Jeet Singh had come down on foot from Police Post, but a car was waiting for him where he was waiting for the bus. The car was of red colour, but he was not aware of the number. He also deposed that Pradhan of the Panchayat and many respectable persons reside at Banikhet and there were many houses and shops there. Benkunth is also adjacent to Banikhet on Banikhet-Chamba road and 10-12 houses and shops were situated at Benkunth Nagar. Sukdain Bain was the next destination from Benkunth Nagar towards Chamba. He has also deposed that there were 10-12 shops and houses at Bonkhari mod besides a Bus Stop. He remained at spot till 8.00 pm. Further that so long he remained present, none of the police officials left the place of occurrence. He has deposed that the parcel was prepared at the spot from cloth and the same was not stitched in his presence. He further deposed that he kept on signing the documents in the manner he was asked by the police to sign. He deposed that he was not aware of the metal of the seal and he could not depose whether the same was of rubber or wood. He also deposed that he lost the seal after 5-7 days of the incident and he did not report the authority regarding the loss of the seal. He admitted that the police officials were in uniform. He also did not disclose to the police in his statement that secret information regarding possession of the Charas by the accused had been gathered. He denied the suggestion that he had not accompanied the police to the spot and that Charas was not recovered in his presence and in the presence of Vijay. He also denied the suggestion that no documents were prepared in his presence.
9. PW-2, Constable, Anuj Kumar stated that he, along with other police officials, were sitting for nakka at Chakara Road and at about 3.00 p.m. one person came on foot on the Chakara road, who was stopped by ASI, Jeet Singh. On asking him, the accused disclosed his name as Darshan Lal. The accused was told that he being suspected of carrying contraband and his search was required to be taken, the accused was apprised of his legal right to be searched before a Magistrate, Gazetted Officer or the police present at the spot. However, the accused gave his consent to be searched before the police present on the spot, qua which memo. Ex.PW-2/A, was prepared, which was signed by the accused at circle ''B''. He admitted his signatures at circle ''A'' on it. He has further stated that before taking search of the accused, he, along with other police officials, Vijay and Surinder gave their search to the accused person per memo. Ex.PW-1A. Thereafter, personal search of the accused was taken and a polythene packet was recovered from him, which had been concealed by him below the trouser beneath the belt. He further stated that the said polythene packet was containing words ''Shahaza garments'' which was containing black coloured hard substance in the shape of balls and candles, which on experience and smell, was found Charas. The Charas, so recovered, was weighed with scales and weight, which was found 1kg.540 grams and thereafter, the same was put in the same Khakhi colour packet, which in turn, was put in the packet of Shazada garments and thereafter, the same was parceled and sealed in a piece of cloth with three seals of impression ''K''. Sample seal, Ex.PW-1/B was separately taken on a piece of cloth and seal was handed over to witness Surinder. NCB forms were filled in at the spot and seal was embossed thereon and thereafter, the case property was taken into possession, vide memo, Ex.PW-1/C, which bears his signatures. He has further stated that the accused also signed the same. Thereafter, the Investigating Officer prepared rukka mark ''B'' at 4.50 pm for being taken to the Police Station for registration of case, which he handed over to MHC, Police Station, Dalhousie, at 6.15 pm. He has further stated that at about 6.45 p.m. the case file was given to him by the MHC, which he delivered to the Investigating Officer at the spot at 8.30 p.m. He also identified the parcel Ex.P-1, polythene packets, Ex.P-2 and P-3 and Charas P-4 to be the same. In his cross-examination, he has stated that Vijay was known to him for the last about 1� years, but he was not aware about his profession. He also deposed that witness Surinder Kumar was also known to him, as he used to come to the Police Post in connection with summons. He further deposed that the accused had stated that he was illiterate but knows how to sign. The accused had been explained the meaning of Magistrate and Gazetted Officer. He further stated that he has disclosed to the police in his statement that meaning of Magistrate or Gazetted Officer had been explained by him to the accused, but confronted with mark ''D'' wherein it was not so recorded. He admitted that the Court of J.M.I.C. and his residence was situated at a distance of 10 kms from Chakra road. He had not read the rukka. Rukka had been sent in the presence of Surinder Singh. He has further admitted that he was having I-Card, mobile, purse pen and handkerchief and that the parcel was stitched by him on the spot in the presence of Surinder and Vijay. He further deposed that three sides of the parcel were already stitched by them and fourth side was stitched by him at the spot. He further deposed that the cloth was in the kit of the Investigating Officer and that the search of the I.O. kit was also given to the accused. He denied the suggestion that the accused was not apprehended in his presence.
10. PW-3, HC, Subhash Chand has stated that he was posted as Reader to the Superintendent of Police at the relevant time. He entered the information vide Sr. No.2935/VD on 26.2.2011. He has also admitted that Special Report Ex.PW-3/A, was given to him by Constable Anil Kumar in the office of Superintendent of Police. He produced the same before the Superintendent of Police and the concerned Superintendent of Police, after perusing the same, returned to him after appending his signatures. Said report is Ex.PW-3/B.
11. PW-4, Constable Anil Kumar stated that the Special report was given to him by ASI, Jeet Singh.
12. PW-5, Constable Subhash stated that a copy of daily diary report No.7, dated 26.2.2011, was given to him by ASI, Jeet Singh for being delivered to S.P. Chamba.
13. PW-6, HHC, Chaman Singh stated that daily diary report No.7 was entered in PP by ASI, Jeet Singh, which is Ex.PW-6/A.
14. PW-7, Constable Hem Raj stated that on 26.2.1011, ASI, Jeet Singh produced one parcel sealed with three seals of impression ''K'', NCB forms, in triplicate and sample seal for resealing to SI/Addl. SHO, Vishwas Balli, who resealed the parcel by affixing two seals of impression ''T'' in his presence and embossed seal ''T'' in NCB forms and sample seal of seal ''T'' was also taken on record Ex.PW-1/B. Reseal memo Ex.PW-7/A, was prepared and seal was handed over to him. Thereafter, the case property was handed over by Addl. SHO to MHC. He has also admitted his signatures on Memo Ex.PW7/A.
15. PW-8, Constable, Suresh Kumar stated that on 27.2.2011, MHC, Police Station, Dalhousie had handed over to him a sealed parcel sealed with three seals of impression ''K'' and two seals of impression ''T'' along with copy of FIR, sample seal, docket, NCB forms vide road certificate No.22/11, for being deposited in F.S.L., which he deposited in FSL on 28.2.2011, in safe condition and also handed over the receipt thereof to LHC Indu Balla. He admitted that so long case property remained in his custody, no tampering was done by him.
16. PW-9, ASI Surjeet Singh has stated that he prepared special report, Ex.PW-3/B and sent the same to the Superintendent of Police, Chamba, through Constable, Anil Kumar.
17. PW-10, MHC Indu Balla has stated that she was officiating as MHC, Police Station, Dalhousie. She further stated that on receipt of rukka, she entered FIR Ex.PW-10/A, which contained the signatures of Addl.SHO, Vishwas Balli. She also handed over the case file to Constable Anuj Kumar for delivering the same to the Investigating Officer. She also entered in the malkana register, at Sr. No.77, the parcel duly sealed with three seals of seal impression ''K'' and two seals of ''T'' along with NCB forms in triplicate, articles of jamatalashi, copy of seizure memo and sample seal at about 9.40 P.M. She also received the receipt issued by F.S.L. She further admitted that till the time the case property remained in her custody, no one tampered with it. She also admitted that she entered report No.26 (A), Ex.PW-10/D and daily diary report No.27 (A), Ex.PW-10/E, which are correct as per record.
18. PW-11, S.I., Vishwas Kumar stated that on the basis of a rukka, received by him through Constable, Anuj Kumar, FIR Ex.PW-10/A, was registered, which bears his signatures and, thereafter, case file was handed over to Constable, Anuj Kumar and endorsement on the rukka was also made by him, vide Ex.PW-11/A. He has further stated that on the same day, at about 9.30 PM, ASI, Jeet Singh deposited with him the case file along with accused and a parcel duly sealed with three seals of impression ''K'', containing 1kg.540 grams Charas, along with sample seals and NCB forms for resealing the same. He resealed the parcel in the presence of Constable, Hem Raj by affixing two seals of seal impression ''T'' and NCB forms and completed relevant columns of NCB forms Ex.PW-10/F and prepared reseal memo Ex.PW-7/A. He also deposited the relevant case property with MHC and articles of jamatalashi to him and the case file was returned to the Investigating Officer and accused was sent in the custody. In his cross-examination, he has deposed that the vehicular distance of Police Station and place of the recovery of Charas was approximately one hour. He has further deposed that it took about ten minutes to complete the resealing process and he also instructed the witness to preserve the seal. He denied the suggestion that no resealing was done by him.
19. PW-12, Vijay Kumar stated that he has a Karyana shop at Bathari and while he was waiting for some lift to Bathari from Banikhet at a place where Surinder was also standing, at about 1.30/2.00 p.m., some police official appeared there and they called him and asked him to associate them so, he along with Surinder, were made to board the vehicle of the police officials, which was of red colour, but he does not know its number. The police officials stopped the vehicle at Bonkhari mor. When he started to proceed towards Bathari, after alighting from the vehicle, he was asked to stop by the police officials. In the meantime, the police officials told him that a person was caught with Charas and he was made to sign certain papers, but neither said person was nabbed in his presence nor Charas was recovered. He has further stated that he was not in a position to identify the said person/accused. He also could not depose that the accused was the same person. He has also deposed that his statement was recorded by the police. Witness was declared hostile and in his cross-examination, he has deposed that the police officials had laid a nakka at Chakra road. He denied the suggestion that at about 3.00 pm, the accused appeared in Chakra road and was nabbed by the police. However, some person was nabbed by the police at 3.00 p.m. He also denied the suggestion that the said person had disclosed his name, as Darshan Lal, resident of Pathankot. He denied the suggestion that the police had apprised the accused that he was being suspected of carrying Charas and his search was required to be taken. He also denied that the accused was also apprised by the police about his legal right to be searched before a Magistrate or Gazetted Officer. He has also denied that accused consented to be searched by the police party or consent memo Ex.PW-2/A, was prepared at the spot. He also admitted his signatures on Ex.PW-2/A, but admitted that he had signed six papers. He has denied the suggestion that during search of the accused in his presence, a polythene packet was recovered from the accused, which had been concealed beneath the belt. He admitted that polythene packets Ex.P-2 and P-3 and Charas Ex.P-4 had been recovered from the said person and that the parcel Ex.P-1, also bears his signatures. He has denied that Charas was weighed in his presence, but he was told that Charas recovered, was 1 Kg.540 grams. He also denied that the Charas was parceled and sealed in his presence, but three seals of impression ''K'' had been affixed in the parcel. He denied that the accused nabbed in his presence and in the presence of Surinder. He deposed that he had not seen accused Darshan Lal at the spot, as such, he could not say about the colour of his dress. He further deposed that the police officials Jeet Ram and two other constables had asked him to board their vehicle. He has also admitted that he had also been kept, as a witness, in one another case of Charas, by the police official, namely Jeet Ram.
20. PW-13, ASI, Jeet Singh stated that he had received a secret information from some source that one Darshan Lal (accused) deals in smuggling of Charas and had gone towards Chamba side for bringing the Charas. He entered a daily diary report Ex.PW-6/A, on the basis of secret information and sent a copy to the Superintendent of Police, Chamba through Constable Subhash Chand. Thereafter, he took out I.O. Kit and proceeded to the spot along with Constable Anuj Kumar, Home Guard Palwinder and at Toll Tax Barrier, witnesses Vijay and Surinder were found standing, who were waiting for a bus. He apprised them about the secret information of possession of Charas by the accused and whether or not they are ready to accompany him to Bonkhari mor and they both agreed to accompany him to Bonkhari mor and, as such, they were made to sit in the vehicle (Alto) Car No.HP-20D-0997. They reached at Bonkhri mor at about 1.45 p.m. and laid a nakka there. They also started waiting for the accused by concealing their presence below the road. It has been averred that at about 3.00 pm, as per the description given by the secret source, the accused having same description, was seen coming on Chakra road, who was stopped by him, who disclosed his name, as Darshan Lal son of Prithi resident of near Kali Mata Mandir, Pathankot. The accused was intimated by him that he was being suspected of carrying Charas and that his personal searched was required to be taken. He was also apprised of his legal right to be searched before some Gazetted Officer or Magistrate, in writing, but the accused agreed to be searched by the police at spot, per memo, Ex.PW-2/A. Thereafter, all the police officials and witnesses Vijay and Surinder gave their search to the accused per memo Ex.PW-1/A. Thereafter, personal search of the accused was taken and during search, a polythene packet was recovered from him, which had been concealed by the accused below the belt of his trouser on the front side. The word ''Sahajada garments'' was printed on the said polythene packet and on opening it, one more packet of Khakhi colour was recovered, which was containing black coloured hard substance in the shape of candles and balls, which on smell and experience, was found to be Charas. Thereafter, the charas was weighed, which was found 1kg. 540 grams, with polythene packet. The Charas, so recovered, was put in the Khakhi colour packet, which was put in the packet of ''Sahajada garments'' and then the same was parceled and sealed in a piece of cloth by affixing three seals of impression ''K''. Sample seal Ex.PW-1/B was taken separately. NCB forms Ex.PW-10/F were completed in triplicate and seal was embossed thereon and the seal was handed over to witness Surinder and thereafter the case property was taken into possession, vide memo, Ex.PW-1/C. Thereafter, he scribed rukka Ex.PW-13/A (mark B) and thereafter, sent the same to the Police Station for registration of the case through Constable, Anuj Kumar. Accused was arrested. The personal search of the accused was also taken after arrest memo Ex.PW-1/E. He has also recorded the statements of the witnesses, namely Vijay and Surinder. Case file was also handed over to him by Constable Anuj Kumar at the spot at about 8.30 p.m. He has further stated that after resealing the case property at the Police Station, the same was deposited by the Station House Officer to the M.H.C. Thereafter, he became busy in another case and handed over the case file to ASI, Surjeet Singh. He returned the file after investigation to him. He presented the file to SHO for preparation of challan. He further stated that the daily diary report Ex.PW-10/D was entered when the case property was presented by him for resealing purpose. In his cross-examination, he has deposed that witness Vijay Kumar was not known to him prior to 26.2.2011. He has also denied the suggestion that it becomes dark at 5.00 pm during the month of February at Bonkhari mor. Self stated that it becomes dark at about 6.30 pm during February. He has also admitted that the statements of the witnesses, was recorded by him on the road with the reflection of light from the shop of Sadhu Ram and other lights, which were on the road. He also denied the suggestion that he had not written in the statements of the witnesses that Vijay and Surinder met him at Toll Tax Barrier and that he had received secret information about possession of Charas by the accused and they should not accompany him. He has also admitted that the secret source had not been disclosed about the colour of clothes of the accused. He also denied the suggestion that Bonkhari Mod was a busy highway. He has also deposed that the accused was wearing shirt and trouser, but was not aware about the colour thereof. He had not entered number of the vehicle in the departure report. He has deposed that after complying with Section 50 of the Act, he gave personal search of the police officials and witnesses to the accused and effected the recovery. He further denied the suggestion that consent memo was prepared after sending the rukka. He had written in the rukka that accused was apprised about his legal rights to be searched before a Magistrate or Gazetted Officer. He denied the suggestion that accused did not appear at Chakra road. He has also denied that witnesses were not present with him at the spot. He denied the suggestion that no Charas was recovered from the accused and the accused was not apprised of his legal right of search before Magistrate or Gazetted Officer. He has also denied the suggestion that no proceedings were conducted at the spot and that parcel and other case property were not produced for resealing by him before the Station House Officer.
21. There were two independent witnesses, namely Surinder Singh (PW1) and Vijay Kumar (PW12). The prosecution story is that in the presence of the independent witnesses, accused was informed that the Police has suspicion that he was carrying narcotics and the accused has legal right to be searched before a Magistrate or Gazetted Officer, but the accused gave his consent to be searched before the Police at the spot. Now, Surinder Singh, the independent witness (PW1) has stated that on 26.2.2011, he was waiting for the bus along with Vijay Kumar near Police Post, Banikhet, at about 1-30/1-45 PM, when ASI, Jeet Singh and Constable, Anuj and one Home Guard came to him and requested him and Vijay Kumar to accompany them to Bonkhari curve (Mor) and accordingly, they reached at Bonkhri Mod at 1-45 PM and were sitting below the road and at about 3-00 PM, accused appeared from Chakra road-side whose identity and whereabouts were ascertained and accused disclosed his name as Darshan Lal. According to him, accused was told about the secret information received qua him regarding possession of Charas and that his search is to be taken and on search, a polythene packet was recovered which had been concealed by the accused below his trouser near stomach which was found containing Charas. However, he has not stated anything that the accused had been apprised of his legal right to be searched before a Magistrate or Gazetted Officer before carrying out his search. Rather, he stated that before recovery of Charas, no documents whatsoever were prepared and the documents were prepared simultaneously at the time of recovery of Charas. Though, this witness was declared hostile by the prosecution but nothing favourable to the prosecution has come. He has specifically denied that accused had been apprised of his legal right to be searched before a Magistrate or Gazetted Officer. Though, he admitted that the accused had stated that he was ready to be searched by the police at the spot, but once the accused was not apprised of his indefeasible legal right to be searched before a Magistrate or Gazetted Officer, the whole search and recovery becomes doubtful. So, as the witness has not stated anything with regard to the fact that the accused had been apprised about his legal right to be searched before a Magistrate or Gazetted Officer, the prosecution story becomes suspicious with regard to the recovery and the benefit of it is always required to be given to the accused. At the same point of time when this witness was cross-examined by the defence counsel, he stated that he know the Investigating Officer, as he used to go to the Police Post in connection with the service of summons, as he was the Chowkidar of the Panchayat. He has further stated that the distance of his village and the Police Post was 10 Kms from his village and many other persons were there and there were 10-12 shops. It has also come in the prosecution story that the alleged recovery was effected at 3.00 PM. It is surprising why any resident of Bonkhari Mor was not associated by the police. This witness has also not supported the sealing of the samples at the spot. In his statement, he stated that no police official departed from the spot till 8.00 PM, the same is in contradiction to the contents of the F.I.R.
22. The another independent witness namely Vijay Kumar, who appeared as PW12, has also not supported the prosecution story and stated that he along with Surinder was taken to Bonkhari Mod from where he was about to go to his house, but was stopped by the police and in the meanwhile, he was apprised by the police that accused has been found in possession of the Charas and was made to sign certain papers. In these circumstances, he too was declared hostile, but without any assistance to the prosecution. No doubt, he stated that the person nabbed by the police had disclosed his name as Darshan Lal and witness has identified his signatures on memo Ex.PW-2/A encircled A and that the parcel was also sealed in his presence, but he has denied rest of the prosecution story. He also categorically denied that the accused had been apprised of his legal right to be searched before a Magistrate or Gazetted Officer or that the accused had consented to be searched by the police party at the spot or consent memo Ex.PW-2/A was prepared at the spot. He also denied that search of the accused was carried out in his presence and a polythene packet had been recovered which had been concealed below the belt or that Charas was weighed in his presence or sample seal was taken or NCB forms were completed on the spot or rukka was sent from the spot or accused was arrested. During his cross-examination, he has stated that witness Surinder was known to him for the last about 4-5 years, but witness Surinder has stated that this witness was known to him from childhood and that he was also associated as witness in one another case after 26.2.2011. He further stated that he was not resident of Bonkhari Mor, as such, he was not required to be associated. So, he was a stock witness and, as such, his signatures were obtained somewhere else and it was projected that the accused had been nabbed in his presence. Once he has categorically stated that neither Charas was recovered in his presence nor accused had been apprised of his legal right to be searched before a Magistrate or Gazetted Officer nor the accused consented to be searched by the police, the entire prosecution case falls to ground and it is not substantiated that mandatory provisions of Section 50 of the NDPS Act have been complied.
23. Constable, Anuj (PW2) was present with the Investigating Officer and corroborated the prosecution story. As per him, rukka was written by the Investigating Officer and handed over to him at 4-50 PM, which he took to the Police Station for registration of the case and handed over to MHC at 6-15 PM and at 6-45 PM, case file was given to him by the MHC, which he further delivered to the Investigating Officer at the spot at 8.30 PM. So far as his version regarding depositing the rukka is concerned, PW1 has categorically stated that he remained at the spot till 8.00 PM and so long he remained there, no police official departed from the spot. PW-12 Vijay Kumar has also stated that no rukka was sent in his presence. PW-1 and PW-12, are also not the residents of Bonkhari Mor and belong to far off places and appear to be stock witnesses. If so, it is also doubtful that the rukka had been dispatched in the manner projected and possibility of completing all the papers lateron cannot be ruled out. According to him, accused had been explained the meaning of Magistrate or Gazetted Officer, but when confronted with his statement under Section 161 Cr.P.C. Ex.PW-13/A, said statement was silent that the accused had been explained such meaning as such an inference arises that the accused was not apprised of his legal right as projected by the independent witnesses. He has further stated that the Court of Judicial Magistrate and residence was at a distance of 10 Kms. from the spot. He also stated that the parcel was stitched in the presence of Vijay and Surinder but PW-1 has denied the same. Apparently, he was under the influence of Investigating Officer. Since the independent witnesses have not rendered assistance to the prosecution story and his version regarding explaining the meaning of the Magistrate or Gazetted Officer is silent in his statement under Section 161 Cr.P.C., possibly of deposing falsely to cover up the lacuna left by PW-1 cannot be ruled out. Therefore, his version without corroboration of independent witnesses cannot be believed.
24. Further, though the independent witness PW-1, has stated that the accused was not informed that he has a right to be searched before a Magistrate or Gazetted Officer, meaning thereby that the provision was not complied with. At the same point of time, even PW-2, Constable Anuj Kumar has stated that the accused was apprised of his legal right to be searched before a Magistrate, Gazetted Officer or the police officials present on the spot and even this is also not a proper compliance of the mandatory provisions under the law. In these circumstances also, the findings of the Court below cannot be said to be against the law while convicting the accused.
25. It has been held in K. Prakashan v. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified.
26. The Hon''ble Supreme Court in T. Subramanian v. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.
27. In these circumstances, as the prosecution has failed to prove the guilt of the accused conclusively and beyond shadow of doubt. This Court finds that the learned trial Court has rightly dealt with the evidence and found the same to be not worthy of credence. We, thus, find no merit and substance to interfere with the well reasoned judgment, passed by learned Appellate Court and the appeal filed by the appellant is accordingly dismissed.
28. In view of the aforesaid decision of the Hon''ble Supreme Court and discussion made herein above, we find no merit in this appeal and the same is accordingly dismissed.
29. All the pending application(s), if any, also stand disposed of.
