The recovery and seizure of contraband in NDPS cases must be proved beyond any shadow of doubt, and any substantial discrepancies or infirmities in the prosecution's case can lead to the acquittal of the accused.

JUDGMENT

Rajnesh Oswal, J. - The judgment of acquittal dated 19.01.2013 passed by the learned Sessions Judge, Kathua (hereinafter to be referred as trial court) in case titled, 'State vs. Chain Lal and another' for commission of offence under section 8/20 NDPS Act arising out of FIR No. 08/2008 registered with Police Station, Basohli has been impugned by the appellant on the ground that learned trial court has wrongly acquitted the respondents as the appellant had led sufficient evidence that warranted the conviction of the respondents.

2. Mr. Dewakar Sharma, Dy. AG has vehemently argued that the prosecution had successfully proved the case against the respondents by leading cogent evidence but the learned trial court has acquitted the respondents by appreciating evidence wrongly.

3. Mr. Vikas Mangotra, learned counsel for the respondents argued that there are various infirmities in the prosecution case and the recovery of contraband from the respondents is doubtful, as such, the appeal is required to be dismissed.

4. Heard and perused the record.

5. The facts as they emanate from the charge-sheet are that on 20.01.2008, a police patrol party of Police Station, Billawar had laid a Naka at a place called Khabal. When the respondents saw the police party, they ran away. However, they were apprehended at about 16:45 hours and two bags were found in their possession. On inquiry, they disclosed that they were having Charas. The respondent No. 2-Kali Dass was having black bag with him whereas, the respondent No. 1-Chain Lal was having green bag with him. They were produced before the Executive Magistrate First Class and during presence of the Executive Magistrate, bags were searched and in one bag, two plastic bags containing Charas were found and they weighed as 4 Kg 912 gms and from that two samples were prepared and from the green bag, 3 Kgs 848 gms Charas was recovered and from that also two samples were prepared. The docket was prepared and on the basis of docket, SHO, Police Station, Basohli registered an FIR bearing No. 08/2008 for commission of offence under section 8/20 NDPS Act. After the completion of investigation, charge-sheet was laid against the respondents on 11.03.2008. The respondents were charged for commission of offence under section 8/20 NDPS Act vide order dated 23.09.2008. As the accused did not plead guilty so, the prosecution was directed to lead evidence. Out of 15 witnesses, the prosecution examined 12 witnesses whereas, the respondents examined one witness in their defence. The learned trial court after hearing both the parties acquitted the respondents.

6. In order to examine whether the opinion formed by the learned trial court was possible/plausible one, it is necessary to have brief resume of the relevant portion of the evidence led by the parties.

7. PW-1 Abdul Wahid Giri stated that on 20.01.2008, he was posted as SHO, Billawar and he along with Constable, Varinder Kumar and Murad Ali had laid a Naka near Khabal at about 4:40 PM. They saw two persons, who on seeing the police ran away. They were apprehended after chase and they disclosed their identity. Each of them was having bags. On inquiry, they disclosed that they were having Charas. The accused consented to the search and he talked to SDPO, Basohli on phone. He took both of them to the residence of the Magistrate. The Magistrate told him that he will visit the Police Station. He took the Magistrate with him. SDPO, Basohli was also in the Police Station. The Charas was in the shape of balls. 4 Kgs. 912 gms Charas was recovered from the accused-Kali Dass. Two Samples weighing 50 grams each were taken out of the said charas. The samples as well as charas were sealed. Likewise, from the accused-Chain Lal, 3 Kgs. 848 grams of charas was recovered in the form of balls. Samples of 50 grams and 40 grams were taken out of the same. Seizure memos/recovery memos are in his hand writing and bear his signatures. They were true and correct. The charas was weighed