Hari Krishan vs State of H.P.

Rajiv Sharma, J.—This appeal is instituted against the judgment dated 15.01.2011, rendered by the learned Sessions Judge (Special Judge), Shimla, H.P., in N.D.P.S. case No. 15-S-7 of 2010, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. One lac and in default of payment of fine, he was further ordered to undergo simple imprisonment for one year.

The case of the prosecution, in a nut shell, is that on 20.10.2009 at about 8:05 AM, PW-8 Rattan Singh S.I. in connection with routine patrol duty had left for Rohru-Jubbal in official vehicle No. HP-07B-0771 vide report No. 2 of the daily diary. PW-2 HC Tilak Raj, PW-3 HHC Devinder Kumar and PW-5 HHC Bihari Lal were accompanying PW-8 Rattan Singh. When PW-8 Rattan Singh reached Hatkoti at about 2:30 PM, a secret information was received against the accused. It was alleged that the accused was trading charas and alongwith the contraband he had been on way from his house to Hatkoti. PW-8 Rattan Singh complied with the provision of Section 42(2) of the Act. The report is Ext. PW-4/A. It was duly signed by PW-8 Rattan Singh. It was submitted to the Superintendent of Police, State CID through PW-5 Bihari Lal. PW-8 Rattan Singh and his team had left Hatkoti for Bholad. The police party stopped at Bholad Nalla at about 3:15 PM. PW-1 Ghanshyam Sharma was seen on way from Bholad towards Hatkoti. PW-8 had associated PW-1 in the police party. At about 3:30PM, the accused carrying bag Ext.P-2 was noticed coming from Bholad towards Hatkoti. The accused was questioned. He was given option of search before the magistrate or Gazetted Officer vide consent memo Ext. PW-1/B. He consented for search before the local police party. The police personnel also offered themselves for search by the accused person in the presence of PW-1 Ghanshyam Sharma. Nothing incriminating was found with PW-2, PW-3, PW-8 and Surinder Kumar Constable vide search memo Ext. PW-2/A. In the presence of PW-1 to PW-3, PW-8 Rattan Singh checked the bag Ext. P-2. The bag was found to be containing charas Ext. P-3 in the shape of billets. The bag Ext. P-2 also contained empty Cement bag Ext. P-5. Ext. P-5 contained scale Ext. P-6, weights Ext. P-7 (one kg.) and Ext. P-8 (100 gms.) The charas was weighed. It weighed 13 kgs. The charas Ext. P-3 was sealed in packet Ext. P-1 along with bag Ext. P-2 with seal ''P''. Bag Ext. P-5 alongwith scale Ext. P-6, weights Ext.P-7 and Ext. P-8 were separately sealed in packet Ext. P-4 with seal ''P''. These were taken into possession vide recovery memo Ext. PW-1/A. The NCB forms were filled in. PW-8 Rattan Singh also prepared special report Ext. PW-8/E and entrusted copy thereof to PW-2 HC Tilak Raj with direction to fax the report to the Police Station. PW-8 Rattan Singh handed over the case property and report Ext. PW-8/E to PW-3 HHC Devinder Kumar with the direction to take them to the Police Station. PW-3 HHC Devinder Kumar handed over the case property to PW-9 SHO Lal Singh. PW-9 SHO Lal Singh re-sealed Ext. P-1 containing charas in original packing with seal ''C''. He deposited the case property with PW-7 HC Balbir Singh with direction to send the packet Ext. P-1 to the Chemical Examiner. PW-7 HC Balbir Singh handed over the same to PW-6 Govind Singh Constable with the direction to deposit the same with the Chemical Examiner. The Chemical Examiner analysed the contraband and his report is Ext. PX. Thereafter, the matter was investigated and challan was put up against the accused after completing all the codal formalities.

The prosecution has examined as many as 9 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C. to which he pleaded not guilty. His case is of simpliciter denial. The accused also produced two defence witnesses. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal.

Mr. Ajay Kochhar, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. J.S. Guleria, learned Asstt. Advocate General, has supported the judgment of the learned Sessions Judge (Special Judge), Shimla, H.P. dated 15.01.2011.

We have heard learned counsel for the parties and gone through the records of the case meticulously.

PW-1, Ghanshyam Sharma, testified that he was running a Karyana Shop, STD and PCO booths at Hatkoti for the last 10-12 years. On 20.10.2009 at about 8-8:30 PM, when he was present in his shop, one person in civil dress came to his shop. He asked him to accompany him to the HP PWD Rest House, Hatkoti. He accompanied him to the HP PWD Rest House, Hatkoti. A grey colored bag was kept on the floor of the room. One of those persons disclosed that the said bag was recovered from a person who was also sitting there. Inside the bag, charas in the shape of sticks, was shown to him. Scale and weights were also lying there. Charas weighed 13 kgs. It was put in the packet after weighing. Thereafter, he left for his house. He did not read the seizure memo Ext. PW-1/A. The seizure memo was not signed by anybody in his presence. Nothing was recovered from the accused in his presence. He was declared hostile and cross-examined by the learned Public Prosecutor. He has admitted his signature on parcel Ext. P-1 at point ''A'' encircled in red ink.

PW-2 HC Tilak Raj, testified that he alongwith HHC Devinder Singh, HHC Bihari Lal, Const. Surinder Singh of Commando Cell, accompanied S.I. Rattan Singh of Police Station State CID, Shimla in Govt. Vehicle No. HP-07B-9771 which was being driven by Const. Brij Lal for patrolling and detection of crimes towards Hatkoti. When at about 2:20 PM, they were present at Hatkoti, S.I. Rattan Singh received a secret information to the effect that accused was indulging in the trade of charas. He was proceeding to sell the charas. On the basis of this secret information, S.I. Rattan Singh prepared an intimation under Section 42 of the NDPS Act and sent the same through HHC Bihari Lal to the Superintendent of Police, CID Shimla. Thereafter, they started for village Bholad Nalla at about 3:15 PM. PW-1 Ghanshyam came from Jhagtan road. He was associated in the raiding party and the secret information was also disclosed to him. At 3:30 PM, the accused came from the Bholad side. The accused was apprehended by the police. He was asked as to whether he wanted to give his search before a Magistrate or a gazetted officer or police to which the accused disclosed that he wanted to give his search to police. The consent memo Ext. PW-1/B was prepared. The police officials also gave their personal search. S.I. Rattan Singh opened the packet Ext. P-2. The charas was recovered. A gunny bag Ext. P-5 was also found in the bag Ext. P-2. The recovered charas weighed 13 kgs. The Gunny bag contained scale and weights. The case property was taken into possession vide seizure memo Ext. PW-1/A. Charas Ext. P-3 was put in the bag Ext. P-2 and the bag alongwith the charas was put and packed in a parcel Ext. P-1 on which three seal impressions of seal ''P'' were put. He identified P-6 scale, Ext. P-7 and Ext. P-8 weights. NCB forms in triplicate were filled in by SI Rattan Singh. Rukka was prepared. It was sent through HHC Devinder to Shimla to hand over the same in the office of State CID, Shimla. The duplicate of rukka was handed over to him which was faxed by him from Rohru to the office. In his cross-examination, he deposed that they received secret information at 2:30 PM at Hatkoti. There were 10-15 houses towards the upper side and below the road. Bholad Nalla was at a distance of about 12-13 kms. from Hatkoti. He further stated in his cross-examination that PW-1 Ghanshyam met them at Bholad Nalla. They did not try to associate any other witness nor any witness was available. He denied that when they started from CID Office, Kasumpti, Shima-9, the party was headed by SI Meenakshi. Volunteered that the party was headed by SI Rattan Singh. Meenakshi SI was accompanying them. Meenakshi SI had accompanied them upto Hatkoti and from there she boarded a bus and left their party. S.I. Meenakshi was not with them when the secret information was received. He also denied that one or two villages came on the road side in between Hatkoti and Bholad Nalla. He also admitted that Bihari Lal had not returned to Jubbal from Shimla. He did not see either Devinder or Bihari lal at Jubbal for two days during which he stayed at Jubbal. He denied the suggestion that when accused was produced in the Court at Jubbal, Bihari Lal and Devinder were with them. He also admitted categorically that the name of Bihari Lal was written in Ext. PW-1/A showing his presence on the spot.

PW-3 Devinder Kumar also deposed the manner in which the accused was apprehended, searched, charas was recovered, seizure memos were prepared and sampling process was completed on the spot. According to him, seizure memo Ext. PW-1/A was prepared vide which case property was taken into possession. The seal after use was given to PW-1 Ghanshyam. The ''rukka'' was handed over to him by SI Rattan Singh. NCB forms in triplicate had been prepared on the spot. SI Rattan Singh, handed over to him two sealed parcels, rukka, seizure memo, sample of seals and NCB forms in triplicate with the direction to handover the case property in the Police Station, State CID, Shimla. He handed over the case property to SHO Lal Singh alongwith the documents. FIR was registered on the basis of the rukka. Lal Singh SHO re-sealed the case property. Thereafter, he did not return to the spot and remained in the Police Station. He was also cross-examined by the learned Public Prosecutor. In his cross-examination, he admitted that secret information was reduced into writing by SI at Hatkoti. The secret information was sent through HHC Bihari Lal to Police Station, State CID, Shimla from Hatkoti. Bihari Lal returned from Hatkoti and he had not gone to Bholad Nalla. He admitted in his cross-examination that there were 30-40 houses in village Hatkoti. There were 8-10 shops at Hatkoti. They did not take any person from Hatkoti to Bholad Nalla. Bholad Nalla was at a distance of 10-15 kms. from Hatkoti. He brought the case property and came to Shimla in a vehicle. He came in Alto Car. He did not know the owner and driver of that car. He did not take any receipt. He did not recover Rs. 150/-from his Department. In his further cross-examination, he admitted that he after handing over the rukka in Police Station, did not return to the spot. He handed over the case property to MHC Parkash, in presence of Lal Singh SHO. The rukka was written by SI Rattan Singh. He also admitted that when they started from the Office at Kasumpti, Meenakshi SI, was with them. She was not the member of the police party but she had accompanied them upto Hatkoti. He did not know whether she was on leave or on duty on that day. On the following day, he had not seen Bihari Lal at Shimla. He had not gone through the contents of recovery memo nor he could identify in whose handwriting, Ext. PW-1/A had been written. He did not remember whether Ext. PW-1/A was prepared in his presence. He also admitted that in the memo, it was written that he alongwith Bihari Lal were present there at that time. The identification memo of charas was also signed by the accused. The identification memo was also signed by HC Tilak Raj, Surinder and Bihari Lal Constables.

PW-4 Naginder Singh, deposed that he was posted as Assistant Reader to Superintendent of Police, CID Crime Branch Shimla since August, 2009. According to him, on 20.10.2009, HHC Bihari Lal handed over to him an intimation under Section 42(2) of the NDPS Act, 1985 which was produced by him before the Superintendent of Police, CID, Crime Branch, Shimla Smt. Sumedha Devedi vide Ext. PW-4/A.

PW-5 HHC Bihari Lal, testified that on 20.10.2009, he alongwith HC Tilak Raj, HHC Joginder, Constable Devinder, Constable Surinder Singh accompanied SI Rattan Singh in Govt. Vehicle No. HP-07B- 0771 towards Hatkoti from Shimla for patrolling. At Hatkoti, SI Rattan Singh got secret information from a person which was recorded by SI and handed over to him with the direction to hand over the same in the office of S.P. Crimes. He carried the same from the spot and handed over the same in the office of PW-4. In his cross-examination, he admitted that when they proceeded and went to Hatkoti Ms. Meenakshi Bhardwaj, the then Addl. SHO PS CID also accompanied them till Hatkoti. He did not know whether she had accompanied SI Rattan Singh and other police officials to the alleged spot. Inspector SHO Lal Singh had not accompanied them from Shimla to Hatkoti. He returned from the spot in the presence of police officials who were present there. He came back in the bus. He did not remember whether there was habitation near the place of scribing intimation from where he came by bus. He admitted towards the end of his cross-examination that no charas was recovered in his presence.

PW-6 Constable Govind Singh deposed that on 22.10.2009, MHC Balbir Singh handed over to him one parcel sealed with seal impressions of seal ''P'' and seal ''C'' alongwith NCB forms in triplicate, samples of seals ''P'' and ''C'' and other documents vide RC No. 3/09 with the direction to hand over the same in the FSL Junga. He carried the same to FSL, Junga and handed over the same there against receipt.

PW-7 HC Balbir Singh deposed that during the intervening night of 20/21.10.2009, at about 1:30 AM, Inspector/SHO PS CID, Lal Singh deposited with him parcel Ext. P-1 allegedly containing 13 kg. of charas bearing three seal impressions of seal ''P'' and 3 seal impressions of seal ''C'' and parcel Ext. P-4 allegedly containing scale and weights having seal impressions of seal ''P'' alongwith one sample of seal ''P'' having three seal impressions of seal ''P'' and three samples of seal ''C'' having three seal impressions of seal ''C'' on each, NCB forms in triplicate, certificate of resealing and copy of seizure memo for depositing in the Malkhana. He entered the receipt of the case property against Sr. No. 4 in the Malkhana Register. In his cross-examination, he admitted that in Malkhana Register, Ext. PW-7/A, the name of Inspector Lal Singh has not been written as a person having deposited the case property. Volunteered that the name of HHC Devinder had been written. He admitted that he did not remember when he received the case property and FIR number was written on the same or not. He also admitted that the Malkhana Register was not paged.

PW-8 SI Rattan Singh, deposed the manner in which the accused was apprehended, searched, charas was recovered and sampling was also completed. He also prepared the spot map Ext. PW-8/B. He recorded the statement of the witnesses. Column Nos. 1 to 8 of NCB forms were filled in by him. He was not aware whether regarding this case, award and commendation certificate has been given to SI Meenakshi, HC Balbir Singh and Rajesh Verma. He admitted that there were houses and shops at Hatkoti where the information was received by him. He did not associate any independent witness from Hatkoti before proceeding to Bholad Nalla. He also admitted that when they started from Shimla, SI Meenakshi was with them upto Hatkoti. SI Meenakshi was the senior most police officer with them. HHC Bihari Lal informed him at Jubbal personally on the following day regarding the handing over of the intimation under Section 42(2) of the NDPS Act at about 9:00 Am. He did not know the mode of journey of Bihari Lal from the spot while taking the said intimation to the office of S.P. However, from the spot, he had left on foot. He admitted that the log-book pertaining to 20th and 21st of October, in respect of the vehicle in question has been filled up by SI Meenakshi. He identified her signatures on Mark DB. According to him, the document Mark-DB, there was no reference of Bholad Nalla, but it was written Shimla local. When seizure memo Ext. PW-1/A was prepared, HHC Bihari Lal was not present on the spot. The recovery of charas in question was not effected in the presence of Bihari Lal. However, in memo Ext. PW-1/A, it is written that the recovery was effected in the presence of Bihari Lal. Volunteered that the said lapse has been clarified in ''rukka'' Ext. PW-8/E where it is written that the recovery was made after sending Bihari Lal with intimation under Section 42(2) of the NDPS, Act. When the accused was produced before the JMIC, Jubbal, on 21.10.2009, Bihari Lal HHC was present there. Memo Ext. PW-4/A was in the hand writing of SI Meenakshi and the said memo was intimation under Section 42(2) of the NDPS Act. The seizure memo Ext. PW-1/A was in his hand writing.

PW-9 Inspector/SHO Lal Singh deposed that on 21.10.2009, Devinder Kumar HHC had produced two sealed packets duly sealed with seal ''P'' before him. He re-sealed the case property. He put his seal ''C" and deposited the case property with MHC Balbir Singh. According to him, in the Malkhana Register Ext. PW-7/A, it has been wrongly recorded that Devinder Singh HHC had deposited the case property with MHC. Volunteered that Devinder Singh HHC had produced the case property before him and he had handed over the same to MHC and name of depositor has been incorrectly recorded. He has not seen the Malkhana Register.

The case, as projected by the prosecution, is that the police party left Shimla. S.I. Meenakshi was also accompanying them. They reached Hatkoti in the afternoon. The secret information was received that the accused was selling charas. The secret information was recorded by PW-8 SI Rattan Singh. It is Ext. PW-4/A. Thereafter, PW-5 Bihari Lal was sent to Shimla with a special report Ext. PW-4/A. The police party went towards Bholad Nalla. The accused was apprehended. He was carrying charas. His consent memo was prepared. The accused agreed to give his search to the police. The police officials also gave their search. Nothing incriminating was recovered from their possession. The bag was opened. It contained charas. Weights and scale were taken into possession. These were properly sealed with seal impression ''P''. Recovery memo was also prepared. PW-3 HHC Devinder Kumar, brought the case property to Shimla. It was handed over to PW-9 Inspector Lal Singh. He deposited the same with PW-7 HC Balbir Singh. PW-7 HC Balbir Singh handed over the case property to PW-6 Constable Govind Singh to be taken to FSL, Junga. The report was received from the FSL, Junga.

The recovery memo is Ext. PW-1/A. It is specifically stated in Ext. PW-1/A that the contraband was recovered from the accused in the presence of HHC Bihari Lal and PW-3 HHC Devinder Kumar. However, the fact of the matter is that Bihari Lal PW-5 had left with Ext. PW-4/A for Shimla. The report was recorded at Hatkoti. Thereafter, a team had gone to Bholad Nalla where the accused was apprehended and the recoveries were made. If, Bihari Lal PW-5 had already left for Shimla, how he could be present at the time of preparing recovery memo Ext. PW-1/A.

PW-3 HHC Devinder Kumar deposed specifically that it was correctly written in memo that he alongwith Bihari Lal were present on the spot at the time of incident. PW-8 SI Rattan Singh also admitted in his cross-examination that in memo Ext. PW-1/A, it is written that the recovery was effected in the presence of Bihari Lal. He tried to clarify by stating in ''rukka'' Ext. PW-8/E, where it is written that the recovery was made after sending Bihari Lal with intimation under Section42(2) of the NDPS, Act. According to PW-2 HC Tilak Raj, Bihari Lal PW-5 has not come back to Jubbal from Shimla. He has neither seen Devinder Kumar PW-3 nor Bihari Lal PW-5 at Jubbal for two days during which time he stayed at Jubbal. He denied the suggestion that when accused was produced in the Court at Jubbal, Bihari Lal and Devinder Kumar were present with them. PW-8 SI Rattan Singh in his cross-examination deposed that when the accused was produced before the JMIC, Jubbal on 21.10.2009 Bihari Lal HHC was present. It is a major contradiction between the statements of PW-2 HC Tilak Raj and PW-8 SI Rattan Singh.

Mr. Ajay Kochhar, Advocate, for the accused has drawn the attention of the Court to Ext. PW-8/A NCB forms. According to PW-8 SI Rattan Singh, he has filled in NCB forms on the spot. A specific suggestion was put to him as to who has filled in columns No. 9 to 12 of NCB forms. He did not know in whose hand writing columns No. 9 to 12 were filled in. It is apparent to the naked eye that in Ext. PW-8/A all the columns have been filled in the same hand writing. Columns No. 1 to 8 are to be filled in by the I.O. and remaining 9 to 12 by the S.H.O, if he is not the Investigating Officer.

PW-1 Ghanshyam Sharma, deposed that he was called from his shop at 8:30 PM on 20.10.2009. PW-2 HC Tilak Raj has deposed that PW-1 Ghanshyam Sharma has met them at Bholad Nalla. They did not try to associate any other witness nor any witness came there. PW-2 HC Tilak Raj has also admitted that there were 10-15 houses towards the upper and lower side of the road side at Hatkoti. He also admitted that one or two villages came from Hatkoti to Bholad nalla. PW-3 HHC Devinder Kumar has also admitted that Hatkoti is quite a famous temple. Hatkoti is also a village. There were 30-40 houses in Village Hatkoti. There were about 8-10 shops at Hatkoti. They did not take any person from Hatkoti to Bholad Nalla. He has admitted in his cross-examination by the learned Public Prosecutor that PW-5 Bihari Lal returned from Hatkoti and has not gone to Bholad Nalla. He also admitted that it is correctly written in the memo that he alongwith PW-5 Bihari Lal were present at that time when memo Ext. PW-1/A was prepared. PW-8 SI Rattan Singh admitted that there were houses and shops at Hatkoti where the information was received by him. He did not associate any independent witnesses. The recovery was effected in the afternoon on 20.10.2009. The police could have easily associated independent witnesses before leaving from Hatkoti to Bholad Nalla. There were shops and houses at Hatkoti. The prosecution has only associated PW-1 Ghanshyam Sharma as an independent witness. He was declared hostile. There are major contradictions in the statement of PW-1 Ghanshyam Sharma and PW-2 HC Tilak Raj. PW-1 Ghanshyam Sharma, as noticed by us hereinabove, has deposed that he was present in his shop. PW-2 HC Tilak Raj deposed that Ghanshyam was present at Bholad Nalla.

According to PW-3 Devinder Kumar, he came back from Jubbal and deposited the case property with PW-9 Lal Singh. PW-9 Lal Singh deposed that he deposited the case property with HHC Balbir Singh with direction to transmit the property containing charas to the chemical examiner. PW-7 HC Balbir Singh deposed that Lal Singh deposited with him parcel Ext. P-1 containing 13 kgs. charas alongwith scale and weights. PW-7 HC Balbir Singh in his cross-examination has admitted that in the Malkhana Register Ext. PW-7/A, name of SHO Inspector Lal Singh is not written as a person having deposited the case property. Volunteered that name of HHC Devinder Singh has been written. The Malkhana Register is also not paged. PW-9 Inspector Lal Singh has also testified in his cross-examination that in the Malkhana Register, it was wrongly recorded that Devinder Singh had deposited the case property with MHC. Volunteered that HHC Devinder Singh had produced the case property before him and he had handed over the same to MHC and name of depositor has been incorrectly recorded. He has not seen the Malkhana Register. He has not examined the relevant entry of the Malkhana Register at the time of preparation of final report. It also demolishes the case of the prosecution, the manner in which the contraband was deposited in the Malkhana.

Mr. Ajay Kochhar, Advocate, has also argued that his client has been falsely implicated in this case at the instance of S.I. Meenakshi Bhardwaj. The accused in his statement recorded under Section 313 Cr.P.C. has stated that he was Up-Pradhan of Village Bholad and some people have managed to falsely implicate him in connivance with SI Meenakshi. According to him, SI Minakshi was having enmity with him and his family members. Now, we will advert to the role of SI Meenakshi Bhardwaj in the entire episode. PW-2 HC Tilak Raj, in his cross-examination, has denied the suggestion that when they started from CID Office, Kasumpti, Shima-9, the party was headed by SI Meenakshi. Volunteered that the party was headed by SI Rattan Singh. SI Meenakshi was accompanying them. SI Meenakshi had accompanied them upto Hatkoti and from there she boarded a bus and left their party. S.I. Meenakshi was not with them when the secret information was received. PW-3 Devinder Kumar has admitted in his cross-examination that when they started from Shimla, CID office, SI Meenakshi was with them. According to him, she was not member of the police party but she had accompanied them up to Hatkoti. He was not aware whether she was on leave or on duty on that date. PW-8 SI Rattan Singh admitted in his cross-examination that SI Meenakshi was posted with them at that time. The recovery of this case was not effected in the presence of SI Meenakshi and she had got no concern with the same. He admitted categorically in his cross-examination that the log book pertaining to 20th and 21st October, in respect of vehicle in question was filled in by SI Meenakshi. He identified her signatures on mark DB. He also admitted that memo Ext. PW-4/A was in the hand writing of SI Meenakshi and the said memo was intimation under Section 42(2) of the NDPS Act. As per mark DB, the name and designation of officer using staff car is by SI Meenakshi. SI Meenakshi has accompanied the raiding party up to Hatkoti. She has been given commendation certificate alongwith the award in case FIR No. 4 of 2009 dated 20.10.2009. The police has put up challan in the instant case in FIR No. 4 of 2009 dated 20.10.2009. It is not understandable why SI Meenakshi Bhardwaj was not cited as a witness when at the time of receipt of secret information, she was present at Hatkoti. We can take judicial notice that she has participated in the entire proceedings, the manner in which the accused was arrested and the contraband was recovered from him. The discussion made hereinabove probablizes the defence of the accused that he has been falsely implicated at the instance of SI Meenakshi Bhardwaj. She was the member of the raiding party. She had gone up to Hatkoti and the version of the prosecution that thereafter she left in the bus cannot be believed more particularly when Ext. PW-4/A has been scribed by her.

There are major contradictions, improvements and embellishments in the statements made by the prosecution witnesses, the manner in which the report under Section 42(2) of the Act was dispatched to S.P. CID Shimla, the manner in which the accused was arrested and recovery was effected and the manner in which the case property was deposited with PW-7 HC Balbir Singh. The role of SI Meenakshi Bhardwaj in the entire episode, the presence of Bihari Lal on the spot at the time of recovery, though he had already left for Shimla with report prepared under Section 42(2) of the Act, all these factors cumulatively taken, leads to only one conclusion that the prosecution has failed to prove the recovery of charas from the exclusive and conscious possession of the accused. The trial Court ought to have noticed the major contradictions, as noticed by us hereinabove, while convicting the accused.

Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 15.1.2011, rendered by the learned Sessions Judge (Special Judge), Shimla, in NDPS case No. 15-S-7 of 2010, is set aside. The accused is acquitted of the charge framed under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case.

The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.