Himachal Pradesh High Court
Ramesh Kumar And Bhinder Singh vs State Of H.P. on 26 December, 2005
Equivalent citations: 2006(3)SHIMLC228
Author: Abhilasha Kumari
Bench: Lokeshwar Singh Panta, Abhilasha Kumari
JUDGMENT Abhilasha Kumari, J.
1. Both these appeals arise out of the common judgment of the learned Additional Sessions Judge, Mandi dated 29.11.2003 in Sessions Trial No. 16 of 2002. Both the appellants (hereinafter referred to as the 'accused persons') have filed separate appeals against the impugned judgment which are being taken up together for hearing and are being disposed of by a common judgment.
2. The accused persons were charged and faced trial for having committed an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') as they had allegedly been found to be in conscious and exclusive possession of 3 Kgs. of 'Charas'. They have been convicted under Section 20 of the Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac in default of which to further undergo simple imprisonment for one month.
3. Aggrieved by the said conviction and sentence, the accused persons have filed the present appeals before this Court.
4. Briefly stated, the case of the prosecution is that on 2nd February, 2002 at about 10.30 a.m. Sub-Inspector Bishan Dass along with Madan Lal, HC Ram Lal, HC Ramesh Chand, HHC Sarwan Kumar, Narpat Ram and Lady Constable Champa Devi were present at Khoti Nullah in connection with traffic checking. In the meanwhile, bus No. PB-12C-9006 came from Manali. The police personnel signalled the bus to stop and on its halting, they entered the bus and started checking the luggage of the passengers. During the course of such checking, the police personnel reached near Seat Nos. 36 and 38 which were being occupied by two boys, who had kept one bag and one plastic bag between themselves on the seat. Initially the bag was checked and one blanket, one pair of gloves and cap was taken out and thereafter both the accused persons are stated to have admitted the ownership of the bag. The bag was got opened in the presence of witnesses and on opening the outer pocket one Banyan, two tooth brushes, one tube of tooth paste and one tube of cream were taken out. On opening the main Zipper of the bag, one plastic bag was taken out and from inside the plastic bag 'Charas' in the shape of billets was found, in the presence of witnesses Shukar Deen (PW-2) and Narinder Singh Conductor (PW-1). The prosecution story further is that the accused persons were asked to come out of the bus along with the bag. Constable Sarwan Kumar (not examined) was sent for arranging weights and a scale which he brought from the adjoining shop. On weighing, the 'Charas' was found to be 3 Kgs. Out of the seized 'Charas' two samples of 25 grams each were taken and sealed in two different parcels which were affixed with the seal impression "H". The residue i.e. the bulk of the 'Charas' and the personal belongings were put inside the bag and the bag was sealed with a piece of cloth and sealed with the seal impression "H". The specimen seal impression was separately taken on a piece of cloth and the recovery memo of this is Ext.PW-1/A. The seal, after use, was handed over to Narinder Singh (PW-1). The recovery memo Ext.PW-1/A was signed by the accused persons and also by the witnesses and the specimen seal impression of the parcel was also signed by the accused persons. Thereafter, the Ruka Ext.PW-4/A was signed by the police investigator and the same was sent through Lady Constable Champa Devi to the Police Station for registration of the case. The police investigator conducted the personal search of the accused persons vide memo Exts.PW-2/A and PW-2/B in the presence of the recovery witnesses. The accused persons were arrested on the spot and brought to the Police Station and the case property was handed over to MHC Krishan Kumar vide memo Ext.PW-4/B along with specimen seal impression and NCB Form. The statements of the witnesses were also recorded. During the investigation, the accused Bhinder Singh got identified the spot where he concealed the bag and identification memo was prepared which is Ext.PW-9/K. The spot map, as disclosed by accused Bhinder Singh, is Ext.PW-9/J. The special report was prepared by the Investigating Officer bearing Ext.PW-7/A on 3rd February, 2002 and handed over to Lady Constable Champa Devi to be handed over to the MHC for the further transmission to the S.P. Mandi. On completion of the police investigation and on the receipt of the report of the Chemical Examiner, the police filed the report under Section 173 Cr.P.C. before the learned Sessions Judge, Mandi who assigned the case to the Court of learned Additional Sessions Judge, Mandi. Having found that a prima-facie case was made out against the accused persons for offence under Section 20 of the Act, the learned Additional Sessions Judge, Mandi charged them for the aforesaid offence. The accused persons pleaded not guilty and claimed to be tried. In support of the prosecution case, the prosecution examined as many as ten witnesses. In the statements recorded under Section 313 Cr.P.C. the accused persons pleaded false implication. No defence evidence was adduced. After trial, the learned Additional Sessions Judge convicted and sentenced the accused persons as aforesaid.
5. We have heard Shri K.D. Sood, learned Counsel for the accused persons end Shri Som Dutt Vasudeva, learned Additional Advocate General for the respondent/State and have also gone through the record carefully.
6. The first point raised by the learned Counsel for the accused persons is that the prosecution has not been able to prove beyond reasonable doubt that the bag from which the 'Charas' was recovered belonged to the accused persons, or that it was in their conscious and exclusive possession. According to him, even the place from where the bag was recovered, is shrouded in doubt, since as per the prosecution version it was placed on the seat in between the accused persons but as per the version of the independent witnesses, it was placed on the shelf above the seats. There is nothing in the said bag that has any connection with the accused persons, therefore, it cannot be said that the bag belonged to them. The prosecution has not been able to prove beyond reasonable doubt on which seats the accused persons were sitting, as there are material contradictions in the statements of prosecution witnesses in this regard. Moreover, as per the statement of PW-9 Sub-Inspector Bishan Dass who was the part of the raiding party, photographs of the accused persons and the recovered material were taken but when the reel was given to the Photo Studio the same got spoilt. The learned Counsel for the accused persons has vehemently argued that the photographs ware the best evidence to disclose where the accused were sitting and where the bag was kept, from which the contraband was recovered. If, as per the version of PW-9, the photographs got spoilt, then the concerned person from the Photo Studio who developed the photographs should have been examined and the spoiled photo film should have also been placed in evidence, which has not been done. Moreover, there is no mention of the photographs in the challan. This indicates that the prosecution has deliberately withheld the evidence which is incriminating to them. Further, it was contended that the story of the prosecution that both the accused persons admitted that they jointly owned the bag is baseless and unsubstantiated by any evidence on record. The independent witnesses have not supported the case of the prosecution but have stated the factual version. If at all, the prosecution story was a truthful one then they could have enlisted a number of independent witnesses as there were numerous passengers in the bus, but the prosecution has failed to do so.
7. Another circumstance which casts doubt upon the entire proceedings, as per the learned Counsel for the accused persons, is that the Constable Sarwan Kumar who was sent to fetch the weights and the weighing scale has not been examined and neither has the shopkeeper from whose shop the weights and scale were alleged to have been brought. There is no substantial evidence on record to prove that the accused persons were in conscious and exclusive possession of the bag from which the 'Charas' was recovered and neither is there an iota of evidence to connect them with the ownership of the same. Since the prosecution has failed to prove that the bag from which the 'Charas' was recovered belonged to the accused persons beyond the shadow of reasonable doubt, the accused persons are entitled to be acquitted.
8. Per contra, the learned Additional Advocate General has argued that it has come in the evidence of PW-9 that the seats No. 37 and 38 were being occupied by the accused persons who had kept one bag and one plastic bag in between themselves on the seat. According to this witness, first the plastic bag was checked and one blanket, one pair of gloves and cap was taken out and thereafter both the accused persons admitted the ownership of the bag and in the presence of the witnesses the bag was got opened from the accused persons and on opening the outer pocket, one Banyan, two tooth brushes, one tooth paste and one tube of cream were taken out. On opening the main Zipper of the bag, one plastic bag was taken out and from inside the plastic bag 'Charas' in the shape of billets was found in the presence of witnesses. This witness further states in cross-examination that both the accused persons admitted that they jointly owned the bag. The learned Additional Advocate General has also referred to the statement of PW-3 HC Ram Lal, Investigating Officer who has also stated that on boarding the bus, when the police party reached seats No. 37, 38 and 39, the seats No. 37 and 38 were occupied by Mohinder Singh (should be Bhinder Singh) and Ramesh Chand and in between the seat a bag was kept, which was admitted to be owned by the accused persons. Since they had so admitted the joint ownership of the bag, their possession of it cannot be disputed. Moreover, there is a reasonable explanation in the evidence of PW-9 that the photographs of the accused persons and of the recovered material which had been taken had got spoilt, therefore, it cannot be said that any incriminating evidence is being withheld by the prosecution for any ulterior motive.
9. The most important aspect of this case is whether it has been proved beyond reasonable doubt that the accused persons were in conscious and exclusive possession of the bag which contained 'Charas' and whether the bag has been satisfactorily connected with and proved to be belonging to the accused persons. We have minutely scrutinized the entire evidence and material on record. The first aspect which has to be ascertained is that on which seats the accused persons were sitting and where the bag which contained the contraband was found to be placed.
10. PW-1 (Narinder Singh) is the conductor of the bus and is an independent witness. He has stated that when the two police officials entered the bus from the front door and two from the rear door of the bus, they started checking the bus and "one bag was lying on the shelf above the seat of bearing Nos. 36 to 38. I do not know to whom the bag belongs. Police asked the person occupying the seat Nos. 36 to 38 whether the bag belonging to them but they refused the ownership." In his cross-examination by the learned Public Prosecutor, since he was declared hostile to the prosecution, he also states that, "It is incorrect to suggest that bag was lying on the seat on 37 and 38 in between both the accused persons. Self stated that it was lying on the shelf above the seats." He also denies the suggestion that the accused persons admitted the ownership of the plastic bag and the cloth bag. This witness was further cross-examined by the learned defence Counsel and he states that, "It is correct that three persons occupied the seats 36 to 38. All the three seats are on the same bench." He also states that, "The shelf of the bus was photographed from where luggage was taken."
11. PW-2 (Shukardeen) is also an independent witness who has not supported the case of the prosecution. He is stated to have entered the bus along with the police. He also denies the suggestion that the accused persons have admitted to the ownership of the bag. He further denies the suggestion that the accused persons were occupying seats No. 36 and 38.
12. PW-3 (HC Ram Lal, Investigating Officer) states that, "When we reached Seat Nos. 37, 38 and 39 then we found that seat Nos. 37 and 38 were occupied by accused persons Mohinder Singh and Ramesh Chand present in the Court and we found that in between the seat occupied by them a bag was kept." In his cross-examination by the learned defence Counsel he states that, "Seat Nos. 37, 38 and 39 are of the same bench."
13. PW-9 (Sub-Inspector Bishan Dass) also states that, "During process of checking, luggage's of the passengers, we reached near seat Nos. 37 and 38. The said seats were being occupied by two boys who had kept one bag and one plastic bag between themselves on the seat."
14. Ext.PW-4/A is the Ruka and endorsement regarding registration of the case, on the basis of which the F.I.R. was registered. This document also clearly indicates that, "Two passengers sitting on seat Nos. 37 and 38 were keeping in between them a green cloth bag bearing four zips, besides two strings in black and white and a white plastic bag/cover bearing 'J.K. GARMENTS' mark in red. The bag also carried the mark of 'NIKE' on it. The seats/bench under occupation of these two persons was meant for three passengers." The F.I.R. also reiterates that the accused persons were sitting on a seat meant for three passengers and occupying seats No. 37 and 38 and the bag was kept in between them.
15. If the version of (PW-3) HC Ram Lal, (PW-9) Sub-Inspector Bishan Dass and, if the documents on record are to be believed, then the accused persons were sitting on seats No. 37 and 38 and the bag was kept in between them. Admittedly, seats No. 37 and 38 are next to each other and if the accused persons were found to be sitting on seats No. 37 and 38, then there is no possibility of a bag being kept in between them. The only place where they could have kept the bag, assuming that the bag was kept on the seat, could only have been on seat No. 39, which would not fall in between them but next to one of them. Although the evidence of the police witnesses is to the effect that the accused persons were occupying two seats on a bench meant for three persons, there is no evidence on record that seat No. 39 was unoccupied or that some other person was sitting on it.
16. PW-1 i.e. the Conductor Narinder Singh has categorically stated that one bag was lying on the shelf above the seat bearing Nos. 36 to 38 and when the police asked the persons occupying the seats No. 36 to 38 whether the bag belonged to them, they refused the ownership thereof. He also denies the suggestion of the learned Public Prosecutor in cross-examination that the bag was lying on seatl. Nos. 37 and 38 in between the accused persons. In the cross-examination by the learned defence Counsel, this witness has stated that three persons occupied the seats No. 36 to 38 and all the seats are on the same bench. Similarly, PW-2 Shukardeen, who is an independent witness, and who has not supported the case of the prosecution, has also expressed his inability to say whether the accused were occupying seat Nos. 36 to 38. This indicates that a suggestion was put to this witness that the accused persons were occupying seats No. 36 to 38. According to PW-3, seat Nos. 37, 38 and 39 were on the same bench but according to PW-1 the seats that were on the same bench were 36, 37 and 38. The version of the prosecution that the bag was found in between seats No. 37 and 38 does not seem to be tenable because there is no seat in between 37 and 38. It is not the case of the prosecution that the accused persons were occupying seats No. 37 and 39 or 36 and 38. Only in those eventualities would they have been able to keep the bag in between them. Neither has it been proved by any evidence on record that seat No. 39 was unoccupied or occupied by some other person. In this regard, the story put up by the prosecution does seem to be shrouded in doubt.
17. Next we come to the question whether the accused persons have been connected with the bag and whether they were in exclusive and conscious possession of the same. In this regard, the statement of PW-3 (Ram Lal, Investigating Officer) is relevant. He states that "In the presence of the witnesses Shukardeen and Narinder Singh Conductor of the bus, the bag which was admitted to be owned by accused persons in the presence of the aforesaid witnesses, who also disclosed about their whereabouts, thereafter firstly the plastic bag was got opened which contains their personal belongings and subsequently bag Ext.P-1 was opened inside the bus and the outer pocket of the bag was opened and from which two tooth brushes and one tube of Colgate and one tube of cream were taken out. On opening the main jipp of the bag, one bunyan, one underwear and beneath them one plastic bag containing Charas in the shape of billets were taken out."
18. PW-9 (Sub-Inspector Bishan Dass) also states to the effect that one bag and one plastic bag was kept in between the accused persons in the seat. "Firstly the plastic bag was checked and one blanket, one pair of gloves and cap was taken out and thereafter both the accused persons admitted the ownership of the bag and in the presence of the witnesses the bag was got opened from the accused persons and on opening the outer pocket, one Banyan, two tooth brushes, one tooth paste and one tube of cream were taken out. On opening the main Zipper of the bag, one plastic bag was taken out and from inside the plastic bag 'Charas' in the shape of billets was found inside the bag in the presence of witnesses."
19. The recovery memo is Ext.PW-1 /A. According to this document, "the accused persons were occupying seats No. 37 and 38 on a bench meant for three passengers and had kept one green cloth bag bearing four zips and two strings - black and white in colour, besides one white plastic bag/cover bearing 'J.K. Garments' mark, in between them." This document, coupled with the statement of PW-9, indicates that there were two bags allegedly lying between the seats occupied by the accused persons, one of which was a plastic bag and another a bag with zips on it. There is a material discrepancy regarding the bags and from which bag the "Charas" was recovered and whether the same belonged to the accused persons or not, in the statements of PW-3 and PW-9, both of whom are official witnesses. PW-9 states that "In between seat occupied by them "a" bag was kept." He later on goes on to describe the contents of the plastic bag which contained the personal belongings of the accused persons. At best, it is this bag which is stated to have been owned by the accused persons in the presence of the witnesses. PW-3 goes on to say that subsequently the bag Ext. P-l was opened and from the zip of the bag one plastic bag containing "Charas" in the shape of billets was taken out. It has nowhere come in evidence that this bag belonged to the accused persons. PW-9 also states that firstly the plastic bag was checked and the accused persons admitted the ownership of the bag in the presence of the witnesses. Then the other bag was checked and on opening the main Zipper of the bag one plastic bag containing 'Charas' in the shape of billets was found and taken out in the presence of the witnesses. Neither of the two witnesses i.e. PW-3 or PW-9 have established that the bag from which the "Charas' was recovered belonged to or has been admitted by them to have belonged to the accused persons or that there was any item or personal belonging in the said bag which could establish the identity of the accused persons and connect it with them.
20. In their separate statements under Section 313 Cr.P.C, though the accused persons have admitted to their travelling in the bus, they have categorically denied having any bag. They have pleaded false implication and have stated that no witness has deposed against them except for the official witnesses who have made false statements in order to establish their case. A glaring irregularity that has come to light in the perusal of the statements under Section 313 Cr.P.C. of both the accused persons is that to the Question No. 1, "Have you heard and understood the prosecution evidence?" no answer has been recorded. Although it can be said that this glaring mistake does raise a presumption that the accused persons have not understood the prosecution evidence, in the light of the fact that no such objection was raised during the recording of the evidence or the trial if cannot be said that this fact alone vitiates the entire case of the prosecution.
21. The learned Additional Advocate General has relied upon Madan Lal and Anr. v. State of H.R. (2003) 7 SCC 465, wherein the expression "possession" has been elaborated upon. Paragraphs-22 and 23 of the said judgment are as follows:
22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes.
23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
According to him, the accused persons were in conscious possession of the 'Charas' since they were aware that the 'Charas' was being carried in the bag.
22. A careful scrutiny of the facts and circumstances of the present case as well as the material on record shows that the prosecution has not been able to prove the possession of the bag containing the 'Charas' by the accused persons, leaving alone the conscious possession of the same within the meaning of the term 'conscious possession', as enunciated by the Hon'ble Supreme Court in this judgment. It is not in dispute that two bags were lying, allegedly on the seat between the accused persons. In our opinion, the prosecution has not been able to prove beyond reasonable doubt out of which bag the contraband was found and whether this bag was in the possession of the accused persons. No doubt, there is a presumption of culpable mental state as per the provisions of Sections 35 and 54 of the Act but for the provision of those Sections to come into play, it has first to be established by the prosecution that the contraband was in the possession of the accused persons. In the first instance, the possession of the contraband by the accused persons will have to be established by the prosecution. Only then will the onus of proof that they were not in conscious possession will shift upon the accused persons. In the present case, the material on record does not establish beyond reasonable doubt that the accused persons were in possession of the contraband, much less in conscious possession.
23. The learned Additional Advocate General has contended that the accused persons had admitted the joint possession of the bag and since they were not accused persons at that point of time, therefore, this admission will not amount to a confession or admission of an offence and will, therefore, be admissible in law. In support of this contention, he has relied upon Pakala Narayana Swami v. Emperor AIR 1939 Privy Council 47 wherein the word "confession" has been explained:
The word "confession" as used in Evidence Act cannot be construed as meaning a statement by an accused "suggesting the inference that he committed" the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains self exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.
Further reliance has been placed on Chandran and Anr. v. State of Kerala 1986 Cri. LJ. 1865. In this case also the case of Narayana Swami (supra) has been relied upon and which also contains the explanation of the word "confession" on the same lines.
24. In our considered opinion, both these authorities, though laying down an undisputed proposition of law, are not applicable to the facts and circumstances of the present case because it is not the case of the prosecution that the accused persons have, at any point of time confessed to their guilt or to carrying the contraband in their luggage. Neither have they confessed to the ownership of the bag from which the contraband was found. Even if it is assumed for the sake of argument that the accused persons admitted to the joint ownership of the bag, it has not been established as to which bag was jointly owned by them, whether it was the plastic bag or the one which had zips upon it. It is nowhere stated by any witness nor has it come on record that the accused persons have admitted to their ownership on both the bags.
25. The learned Additional Advocate General has argued that there is no reason why the police would want to falsely implicate the accused persons and there was no reason to discard the evidence of the police officials. In this regard he has relied upon Nathusingh v. The State of Madhya Pradesh AIR 1973 SC 2783 which lays down the proposition that the mere fact that the prosecution witnesses are police officials is not enough to discard their evidence, in the absence of their hostility to the accused. Another judgment relied upon by him is Fredrick George v. State of H.P. 2002 Cri.LJ. 4600 in which a Division Bench of this Court in Para-50 has come to the conclusion that the contradictions pointed out in the statements of the police officials on one hand and the hostile witnesses on the other cannot be said to be fatal to the case of the prosecution.
26. In Akmal Ahmed v. State of Delhi AIR 1999 SC 1315, the Hon'ble Supreme Court has observed in Paragraph-12 that the evidence of search or seizure made by the police will not become vitiated solely for the reason that the evidence is not supported by independent witness.
27. Relying upon the above judgments, the learned Additional Advocate General has argued that if the prosecution witnesses do not support its case that does not mean that the evidence of the police officials cannot be relied upon.
28. So far as this contention is concerned, there is no disputing the proposition of law that the evidence of the police witnesses cannot be discarded on the sole reason that they are police witnesses or members of the raiding party. However, it also cannot be disputed that the evidence of police officials has to be clear, cogent and trustworthy and also corroborated by the statements of other witnesses and the material on record.
29. The learned Counsel for the accused persons had relied upon a judgment of this Court in Moti Ram v. State of H.P. (Criminal Appeal No. 342 of 2005 decided on 25.11.2005) to the effect that when there is reason to believe that the accused persons are carrying contraband, independent witnesses as per the requirement of Section 42 of the Act ought to have been associated. In reply to this proposition, the learned Additional Advocate General has relied upon Raj Pal v. State of H.P. 2004 Cri.L.J. 695 where the Court has come to the conclusion that the non-joining of an independent witness was not deliberate or mala fide act on the part of the Investigating Officer. In that case the place where the accused was apprehended was an isolated one and the nearest locality was 3 Kilometers away and no vehicle was on that spot. In our opinion, the contention of the learned for the accused persons that independent witnesses ought to have been associated is not a very relevant one since the prosecution has associated PW-1 Conductor and PW-2 Shukardeen as independent witnesses. It is a different story that they have not supported the case of the prosecution.
30. The flaw in the present case is that the evidence of the police officials is neither clear nor cogent. Rather, there seems to be a basic confusion in the case of the prosecution as to which seats the accused persons were sitting on and from where the bag containing the 'Charas' was recovered. Further it is not clear whether the bag was kept in between the accused persons or on the shelf. If kept in between the accused persons, where could it have been kept since the accused persons were occupying seat Nos. 37 and 38 as per the prosecution version and there could have been no seat in between. Neither has it been brought out whether seat No. 39 was occupied or unoccupied. Further, the very possession and ownership of the bag by the accused persons is shrouded in doubt. All these aspects have been minutely gone into and discussed in detail.
31. The important link evidence to connect the accused persons with the bag is also missing. The damaged photographs and reel have not been brought on record. By itself this may not be an incriminating circumstance but taken along with the other circumstance it can be said to add to the doubtfulness of the prosecution case. There is no explanation why HC Sarwan Kumar who was sent to fetch the weights and scale, the shopkeeper from whose shop the scales were brought and the driver of the bus were not examined. All these circumstances taken together only deepen the shadows of doubt cast upon the case of the prosecution. In addition to this, when the testimony of the police witnesses is itself not clear regarding the basis aspects of the case, then all these circumstances taken together do not induce us to have faith in and put reliance upon the testimony of the official witnesses.
32. In a criminal trial the onus to prove the different ingredients of the offence is upon the prosecution. Unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence can the Court record the findings of guilt against the accused. Where the Court entertains any reasonable doubt regarding the guilt of the accused, then the accused must be given the benefit of that doubt. What is of paramount importance is whether the guilt of the accused has been established beyond reasonable doubt by the evidence brought on the record or not.
33. In the present case, after hearing the parties at length and minutely going through the evidence on record, we are of the considered view that the prosecution has not been able to establish the possession, much less the conscious possession, of the 'Charas' by the accused persons beyond the shadow of doubt. In the light of the above discussion and for the foregoing reasons, the conviction and sentence imposed upon the accused persons by the learned trial Judge cannot be sustained and the same are liable to be set aside.
34. Resultantly, both the appeals are allowed and the conviction and sentence of the accused persons is set aside and they are acquitted of the offence under Section 20 of the Act.
35. The accused persons, who are presently lodged in Jail and undergoing sentence, shall be released forthwith, if not required in any other case. The amount of fine, if already deposited/realized, shall be refunded to the accused persons.