JUDGMENT :

Rajnesh Oswal, J.

The present appeal is arising out of judgment dated 11.07.2018 and order dated 12.07.2018 passed by the learned 1st Additional Sessions Judge, Jammu (hereinafter to be referred as the trial Court) by virtue of which, the appellants have been convicted for commission of offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) and have been sentenced to undergo rigorous imprisonment for a period of ten years each with a fine of Rs. One lakh each and in default of payment of fine, the appellants have been further ordered to undergo rigorous imprisonment for a further period of six months each.

Grounds:

2. The appellants have impugned the judgment dated 11.07.2018 and order dated 12.07.2018 on the grounds that the trial Court has not appreciated the evidence in its right perspective and further has not taken into consideration the contention of the appellants regarding non-production of material witness, namely, PW-Yasir Rashid, who carried the docket to the concerned Police Station for registration of FIR, particularly when after the closure of prosecution evidence, the said witness was summoned by the trial Court on the motion laid by the prosecution under Section 540 of Cr.P.C.; that there is material contradiction with regard to the commencement of the investigation by the investigating officer (IO) as IO in his cross examination, has stated that he reached the spot at about 10:30 p.m. and thereafter commenced investigation whereas all other witnesses have categorically stated that IO came on spot at 8:30 p.m. and took the accused along with seized material with him at about 9:00 p.m. that is altogether different so far as the contents of FIR is concerned; that IO, namely, Mukhtiar Ali in his cross examination had stated that when he reached the place of occurrence, a docket was given to him by ASI-PW-Akbar Hussain which is contrary to the prosecution story; that the learned trial court has not appreciated that both the independent witnesses i.e. PW-3 Mohd. Alam and PW-4 Mohd. Javed have not supported the prosecution case and have categorically stated in their statements before the trial Court that no contraband was recovered from the possession of the appellants in their presence; that as per the provisions of NDPS Act, it was imperative on the part of the investigating Agency to prove the re-sealing of the samples but in the instant case, Naib Tehsildar, namely Saif-ul-Maluk, who allegedly re-sealed the samples was not listed in the list as witness but was examined later on, on the motion of prosecution in terms of Section 540 of Cr.P.C., however, the original certificate pertaining to re-sealing of samples was neither in the court file nor with CD file which means that re-sealing of the samples was not at all proved by the prosecution; that the seal used for sealing the samples was kept on the Supardnama of PW-Constable Shahjahan, but the said witness never produced the seal before the Court as also the I.O did not bother to hand over the ring used for sealing to independent witnesses; that there was delay in forwarding the samples to FSL for chemical examination as the material was seized on 27.04.2016 and samples those were taken from the seized material were sent to Naib Tehsildar for re-sealing on 02.05.2016 and further that the samples were received in the laboratory on 03.05.2016; that there is delay of six days in sending the samples to the FSL for which the prosecution has offered no explanation; that the IO did not bother to annex copy of Malkhana Register by virtue of which it can be established that the samples were kept in the safe custody and the Mohrar Head Constable was not cited as a witness in the case which clearly shows that the prosecution miserably failed to prove the safe custody of the samples till they reached the FSL; that two witnesses, who were allowed to be re-examined by the trial Court by allowing appli