IMPORTANT POINT
When recovery of contraband from accused was a case of chance recovery, non-joining of public person as independent witness would not be fatal to prosecution case.

JUDGMENT

Dharam Chand Chaudhary, J.—Dev Kumar, a Nepali National (hereinafter referred to as the accused), who has been convicted by learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, vide judgment dated 02.07.2016, passed in Sessions Trial No.0000014/2015, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act in short) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default to pay the fine, to undergo simple imprisonment for a further period of two years, has approached this Court by filing the present appeal for quashing and setting aside the impugned judgment on the grounds, inter-alia, that learned trial Court has based its findings on surmises and conjunctures and thereby caused miscarriage of justice to him. The conviction of the accused allegedly is based on wrong appreciation of the prosecution evidence. The contradictory version of the prosecution witnesses none-else, but the police officials has been given undue weightage. The prosecution case allegedly suffers from various procedural irregularities such as non-compliance of mandatory provisions contained under Sections 42 and 50 of the Act. The search and seizure is not witnessed by reliable and independent witnesses being not associated by the Investigating Officer to the reasons best known to him, though were very much available. The specimen of seal was neither sent to Forensic Science Laboratory nor produced in the Court. Withholding of such material evidence would lead to the presumption envisaged under Section 114(g) of Indian Evidence Act that had the same been produced would have been unfavourable to the prosecution case. In view of the evidence produced by the prosecution, two possible views emerge on record and in such a situation, the view favourable to the accused has to be relied upon and the benefit of doubt given to the accused.

2. Whether the grounds, as raised in the memorandum of appeal, carry substance or not and the impugned judgment is not legally and factually sustainable, need reappraisal of the given facts and circumstances and also the evidence available on record. The prosecution case as disclosed from the record, is that on 10.05.2015, around 04.30 p.m., the police of Police Station, Jhakri, Tehsil Rampur Bushahr, District Shimla, formed a party to patrol in Rattanpur, Majhewali, Shah & Dofda side. The police party was headed by PW-10 ASI Sher Singh Negi. Its other members were HHC Inder Singh (PW-1), Constable Rajesh Kumar (PW-2) and Constable Roshan Lal. A Rapat which is Ext.PW-6/A to this effect was entered in daily diary. The police party proceeded for patrolling in official vehicle No.HP-02-0788. Around 05.30 p.m., the police party while near Explosive Magazine Technology House Private Limited at Rattanpur-Majhewali road, the accused was spotted coming to the main road through a link road. He was going towards Majhewali side. He was having a backpack (Pithu) on his right shoulder. On seeing the police vehicle, the accused became nervous and he started running on road side. PW-10 Sher Singh Negi had overpowered him with the assistance of accompanying police officials as the place being a secluded and lonely place, no one was present nearby, therefore, HHC Inder Singh (PW-1) and Constable Roshan Lal, were associated as witnesses. It is in their presence, the material being carried in backpack, which the accused was carrying on his right shoulder, was checked and charas in the shape of sticks Ext.P-4 (29 sticks) and in the shape of pancake (8 pieces), was recovered from its inner pocket. On inquiry, the accused disclosed his antecedent to PW-10 Sher Singh Negi. PW-2 Constable Rajesh Kumar was deputed in search of witnesses and also to procure a weighing scale. He though brought an electronic weighing scale from the shop of Ram Chander Negi (PW-3) of village Rattanpur, however, inf