Appellate courts should not interfere with acquittal if trial court's view possible despite contradictions in police evidence and hostile independent witness, as suspicion cannot replace proof beyond reasonable doubt.

JUDGMENT :

SUSHIL KUKREJA, J.

1. The present appeal has been preferred by the appellant-State under Section 378 of the Code of Criminal Procedure (Cr.PC) against the judgment of acquittal dated 31.07.2013 passed by the learned Sessions Judge Shimla-cum-Special Judge under NDPS Act, in Sessions Trial No.9-S/7 of 2012, whereby the accused persons (respondents herein) were acquitted of the offences punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ‘NDPS Act’).

2. Facts of the case, in brief, giving rise to instant appeal as per the prosecution story, are that on 10.06.2011, while a police party, headed by SI/SHO Narinder Singh, was on patrolling duty towards Newati-Ghawas on Jhiknipul road, in a private vehicle bearing registration No.HP-01A-0981, being driven by one Ashok Kumar, then at about 11:45 p.m, two persons were noticed one kilometer ahead of Newati near Shiv temple, coming on foot from Jhiknipul side, who were carrying gunny bags on their right hand. On seeing the police, they suddenly tried to run away, but both of them were apprehended by the police at some distance. Thereafter, SI Narinder Singh inquired their names and address, upon which, one person disclosed his name as Mohar Singh (accused-respondent No.1 herein) and the other as Prem Parkash (accused-respondent No.2 herein). On suspicion of having some contraband with them, SI Narinder Singh gave option to them as to whether they wanted to give their personal search to a Gazetted Officer or a Magistrate, but both of them opted to be searched by the police party present on the spot. Thereafter, the police personnel gave their personal search to the accused persons, but nothing incriminating was found and after that, search of the gunny bag, being carried by accused Mohar Singh, was conducted. On opening the same, a black coloured substance, in the shape of wicks and balls, wrapped in a polythene cover, was recovered, which was found to be charas and on weighment, the recovered charas was found to be 4 Kgs. Similarly, on opening the gunny bag, being carried by accused Prem Parkash, same black coloured substance, in the shape of wicks and balls, wrapped in a plastic cover, was recovered, which was also found to be charas and on weighment, the recovered charas was found to be 2 Kgs. Thereafter, SI Narinder Singh, separated 50 grams sample each from the recovered charas, which were sealed separately in a cloth parcel with six seals of seal impression ‘U’ and remaining recovered charas was put into same plastic covers and then in the same gunny bags, which were also sealed in cloth parcels, each sealed with six seals of seal impression ‘U’. Specimen sample of seal ‘U’ was separately taken on a piece of cloth and the seal after use was handed over to Ashok Kumar. Since the place was secluded one, as such, no independent witness could be associated in the proceedings and thereafter, the police completed other codal formalities and arrested both the accused persons.

3. On completion of the investigation and after receipt of SFSL report, the charge-sheet was prepared and presented before the learned Trial Court.

4. The learned trial Court, vide order dated 27.03.2012 framed charges against the accused persons under Section 20 of NDPS Act, to which they did not plead guilty and claimed trial.

5. The prosecution, in order to prove its case,