JUDGMENT :

AFTAB ALAM, J.

1. The appellant stands convicted under Sections 8/21(b) of the Narcotics Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to as "the NDPS Act") and sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.25,000/- with the direction that in default of payment of fine, he would undergo rigorous imprisonment for a further period of one year.

2. On March 8, 2005, at about 3.30 p.m. one Anil Kumar Jharkhadia (PW.10), Town Inspector, Police Station Kareli received information that the appellant, the owner of Satyanarain Talkies is engaged in selling of smack powder (heroin in common parlance) from his cinema hall. After completing the formalities, the police party proceeded to the cinema hall where the Town Inspector, complying with the mandate of the law, subjected the appellant to a personal search.

3. The search, made under the Search Memo, Exhibit P.17, yielded three packets from the pocket of the `kurta' worn by the appellant. The plastic packets contained smack powder, the total weight of which was 175 grams. The suspected narcotic recovered from the appellant was seized under seizure memo, Exhibit P.22. From the seized powder, two samples of five grams each were taken and were put in two separate sealed packets marked as Article A and A1. The remainder 165 gram was put in a separate sealed packet marked as Article A-2.

4. Following the appellant, his two employees, namely Kanki @ Vishnu and Guddu Maharaj, who were present there at that time, were also subjected to personal search and from the possession of Kanki 100 grams and from Guddu Maharaj 35 grams smack powder was recovered. Samples were similarly taken from the recoveries made from those two accused also.

5. The samples taken from the smack powder alleged to have been recovered from the three accused, including the appellant were sent to Forensic Science Laboratory vide draft, Exhibit P.31. The FSL report, Exhibit P.32 confirmed that the samples contained diacetylmorphine (heroin).

6. On completion of investigation, charge-sheet was submitted against all the three accused, including the appellant on 31.3.2005. Charges were framed against the accused and they were put on trial. The trial court by judgment and order dated 9.11.2005 passed in Special Case No.4/2005 held all the three accused, including the appellant guilty of offences punishable under Sections 8/21(b) of the NDPS Act and sentenced them as noted above. Against the judgment of the trial court, the appellant preferred Criminal Appeal No.2511/2005 before the High Court. Another appeal being Criminal Appeal no.86 of 2006 was filed by Guddu Maharaj. There is, however, no indication that the third accused Kanaki took the matter in appeal. The High Court dismissed both the appeals by judgment and order dated April 17, 2008.

7. The appellant alone has come in appeal against the judgment of the High Court.

8. On hearing Mr. Akshat Shrivastava, learned counsel for the appellant and Ms. Vibha Datta Makhija, learned counsel for the State and on going through the materials on record, we find there are several features in this case that make it very difficult for us to sustain the conviction of the appellant. To begin with, there were two independent witnesses of the seizure, namely, Ajay Purohit and Udaipal Singh whose signatures were taken on the seizure memos, Exhibits P.22 to 24. They were examined before the Court as PWs 8 and 9 respectively. Neither of the two supported the case of the prosecution. PW.8 was, as a matter of fact, quite emphatic in his denial of any recovery having been made from the appellant or the other accused in his presence. Both were declared hostile by the prosecution. Both the trial court and the High Court had, therefore, to rely upon the testimony of R. K. Jharkhandia, PW 10 who was the Station House Officer at the material time and who had conducted the raid to accept the prosecution case of recovery of the suspected