Rajiv Sharma, J.

This appeal is instituted at the instance of the State against the judgment dated 23.1.2012, rendered by the learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in NDPS case No. 05/2011, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offence punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), have been acquitted.

2. The case of the prosecution, in a nut shell, is that on 19.9.2010, the police party was on routine patrol duty in official vehicle No. HP-34A-016. It was driven by Const. Karam Chand. At about 9:00 AM, when the patrol party was present near the bifurcation of Jaon- Sarahan road, two persons were seen coming from Jaon side towards Sarahan, carrying bags on their backs. On seeing the police party, they became nervous and turned back. On suspicion, they were apprehended. Since it was a lonely place and nearby there was no house or population, HHC Diwan Chand was sent to arrange for independent/local witnesses. However, no independent witness was available. In these circumstances, HC Lal Chand and Const. Ramesh Chand were associated as witnesses. The accused persons were informed verbally as well as by writing that the police had suspicion that they might be in possession of some contraband and for this reason, their personal search as well as that of the bags being carried by them was required to be taken. They were also apprised of their legal right to be searched before Magistrate or Gazetted Officer. The accused persons opted to be searched by the police party. Thereafter, the police officials gave their search to the accused persons and in this regard search memo was prepared. The personal search of the accused No. 1 Sohan Lal was undertaken but no contraband was recovered. However, when the bag carried by the accused No. 1 was searched, one plastic envelope in which substance in the form of wicks and round shape was recovered. Some substance was also found to be wrapped in plastic paper. It weighed 5 kg. It was put in the same bag and sealed in a parcel with seal “H” (8 seals) and the parcel was marked as A-1. Similarly, when the personal search of accused No. 2 Anand Kumar was undertaken, no contraband was recovered except his personal belongings. The bag carried by him was checked and charas weighing 5 kg in round shape was found. It was sealed in a parcel with 8 seals of seal “H”. It was marked as A-2. NCB form in triplicate were filled in and the recovered charas was taken into possession by preparing seizure memo. The rukka was sent to the Police Station through Constable Ramesh Chand and thereafter FIR was registered. Site plan was prepared. In the investigation, it was also revealed that the real owner of the recovered charas was one Khub Ram, accused No. 3. It also came during the investigation that accused No. 3 had abetted the co-accused to indulge in the trade/business of charas. Allegedly, he disclosed to have sent 6 kg. of charas from the house of some Nepali to the house of accused No. 1 so that the same could be taken by him to Delhi. He had telephonic conversion with the co-accused. The contraband was sent for FSL, Junga for chemical examination and report of the FSL is Ext. PX. The investigation was completed and the challan was put up after completing all the codal formalities.

3. The prosecution, in order to prove its case, has examined as many as 10 witnesses. The accused were also examined under Section 313 Cr.P.C. According to them, they were falsely implicated. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.

4. Mr. M.A.Khan, learned Addl. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. G.R.Palsra, Advocate for the accused has supported the judgment of the learned tria