JUDGMENT 1. - This revision petition is directed against the judgment of learned Sessions Judge, Sikar dated 17th May, 1982 confirming the conviction and sentence passed against the petitioner by the learned Chief Judicial Magistrate, Sikar vide its judgment dated 27th December, 1980 as under : U/sec. 9 of Opium Act : Six month's R.I. and a fine of Rs. 1,000/- and in default of payment of fine to undergo R.I. for three months. U/Sec. 54 of Excise Act : Six months' R.I. and a fine of Rs. 1,000/- and in default of payment of fine to undergo three months' R.I. Both the sentences ordered to run concurrently. 2. Facts leading to the revision petition are that on 14th February, 1976 at 3.30 p.m. a report was lodged by one Chunnilal (P.W. 7) wherein it was alleged by him that one Gulabchand son of Durga Prasad is selling Ganja and opium on his shop near Salasar Bus Stand, Sikar in which he is carrying on the business of selling empty opium poppy capsule. It was further alleged that the information was also to the extent that he keeps the stock concealed of Ganja and opium in his house. On receipt of this information from one Pokar Ram son of Shiv Bux Ram, the S.H.O., Police Station Sikar along with other police officials went to the shop of Gulab Chand at 12.15 in the noon. Gulab Chand was sitting on the shop and in the presence of motbir Shri Ram Chand and Liyakat Ali his shop was searched where from 350 gms of Ganja and 500 gms of opium was recovered. Subsequent to this, it is alleged that search of his house was also taken where from also 30 Kgs. and 390 gms of Ganja and 5 kgs. 550 gms of opium were recovered. All these things were sealed and on returning to the Police station, the aforesaid case was registered by Chunnilal, Dy. S.P., Sikar (P.W. 7). Sample of the opium as well as Ganja were taken out during investigation and sent to Forensic science laboratory for analysis. Police after investigation, submitted a charge-sheet against the petitioner for offence under Section 9 of the Opium Act and Section 54 of the Excise Act. S.P., Sikar (P.W. 7). Sample of the opium as well as Ganja were taken out during investigation and sent to Forensic science laboratory for analysis. Police after investigation, submitted a charge-sheet against the petitioner for offence under Section 9 of the Opium Act and Section 54 of the Excise Act. Learned Chief Judicial Magistrate, Sikar on 16th June, 1976 framed charges under Section 9 of the Opium Act and Section 54 of the Excise Act for recovery of Ganja and opium from the residence as well as from the house. The accused denied the charges and claimed to be tried. Prosecution examined as many as seven witnesses in support of its case. 3. Accused in his statement, has denied the prosecution story and submitted that he had strained relations with Dy. S.P. Chunni Lal who is responsible for falsely making out a case against him. He examined four witnesses in his defence. He also filed statements in writing. The learned Magistrate did not accept the defence case and relying upon the statement of Chunnilal and other police officials convicted and sentenced the accused as aforesaid. Aggrieved with that an appeal was preferred before the learned Sessions Judge, Siker but the same was also dismissed vide judgment dated 17th May, 1982. Hence, this revision has been preferred. 4. In this revision, the learned counsel for the petitioner submits that the findings of both the courts below are erroneous and the law has not been correctly read. It is submitted that there are many illegalities in the judgment and the contradictory findings have been recorded. Learned counsel's grievance is that prosecution has not been able to prove that the places from where the recovery of the opium has been made were in possession of the accused petitioner and that unless exclusive and conscience possession of the accused is established, guilt cannot be fastened on him. The submission of the learned counsel is that there is over whelming evidence on record in shape of prosecution's own witnesses that the shop from which the alleged Ganja and opium have been recovered belongs to one Kailash and for reasons best known, the Investigating Officer has not made him the accused in the case and but for the previous enmity, the petitioner has been substituted as an accused in the case. It is submitted that the Investigating Officer was conscious of the fabrication of the false case and, therefore, a conspiracy was hatched between the persons who were opposed to the petitioner for falsely implicating him in the case in as much as it is one of the arrest of the rare cases where the Investigating Officer has disclosed the name of the source information on the basis of which the alleged searched are said to have been conducted else the normal practice is not to disclose the name of the Mukhbir who gives the information. It is submitted that even the samples have not been properly kept in the office of the Superintendent of Police and there is no proper evidence that they were in the same condition at the time of analysing in which they were kept. Proper evidence has not been led in this respect and important witness has been with held. It is also submitted that important witness like Ram Chandra, Mahipal Singh, Bansidhar and Gauri Shanker have not been examined. It is further submitted that both the courts below have acted illegally in not delivering the judgments in accordance with the law. They have not even cared to read the defence evidence much less critically examining the same. It is submitted that so far as the Court is concerned, it is essential duty of the court to have given due weight to the defence witness also unless either there were contradiction in their statements or that the witnesses were not of any reliance. Mechanical ignoring of the defence witnesses, it is submitted, is not warranted by any law. It is, therefore, submitted that findings arrived at by the courts below are per verse which require to be set aside by this Court. 5. Learned counsel for the State supported the judgment of the Courts below and submitted that there is concurrent findings of fact and this Court should not interfere in revision jurisdiction. 6. I have heard learned counsel for the parties and perused the entire record. 7. Before deal with the arguments raised by the learned counsel, would like to go through the evidence afresh as think it is essential in the instant case keeping in view the contention that the Kailash has nothing to do with the shop. 8. 6. I have heard learned counsel for the parties and perused the entire record. 7. Before deal with the arguments raised by the learned counsel, would like to go through the evidence afresh as think it is essential in the instant case keeping in view the contention that the Kailash has nothing to do with the shop. 8. Pokarmal (PW 1) is the person who had informed Circle Officer, Chunnilal that Ganja and opium is lying in the shop of accused-petitioner and also in the latter's residence. He has stated that at 10.00 a.m. when he was returning from Nehru Park he heard two strangers talking that Gulab, who is a poppy capsule contractor, has received Ganja and opium and he would keep partly in the shop and partly in his residence which is on the first floor of the shop. He also alleged to have seen two-three strangers purchasing opium and ganja, therefore, he went and told. Dy. S.P. at the lattes residence which was near Police Station and Dy. S.P. in turn phoned the S.H.O. and called the force. Thereafter at 12.00 or 12.15 in the noon the entire police party reached the spot from where opium as well as ganja was recovered from the shop and the house. In cross-examination, he has admitted that the house from where the goods have been recovered, 8 to 10 persons are living. He also admits that the room was not locked and the main gate of the house was also opened. He first says that nobody was coming from inside the house but then said that the persons from the society were coming from inside the house. He does not know whether the persons who carried out the search were first searched by the S.H.O. or not. This witness was not shown in the Court the ganja and the opium recovered. However, he stated that even at the time of recovery smell was not coming. He knows the accused from the date of occurrence and was not knowing him from before. He cannot name the persons whom he heard talking on the road. He also admits whether Dy. S.P. called Inspector from the locality. Only Liyakat and Ramchandra were called as Motbirs, though number of persons had gathered there. He knows the accused from the date of occurrence and was not knowing him from before. He cannot name the persons whom he heard talking on the road. He also admits whether Dy. S.P. called Inspector from the locality. Only Liyakat and Ramchandra were called as Motbirs, though number of persons had gathered there. He was confronted with the first part of his statement recorded in the Court since they did not find place in the 161 statement which he explained that it might have been inadvertently. He admits that his signatures had not been obtained on any of the documents prepared on the spot. He also admits that it was not verified from the rent-deed as to whether accused was the tenant in that house. He admits that he has not produced before the Dy. S.P. the person who was purchasing opium and ganja in his presence. He further admits that he has been convicted for offence under Section 354 IPC and is under suspension. He stated that he has been acquitted by the appellate Court but admits that on the date of occurrence he was under suspension. Then he cleared it that he was dismissed. He denied the suggestion that in order to improve his image, he falsely joined hands with Chunnilal, Dy. S.P. and made a false case against the petitioner. It is also pertinent to mention here that this witness has been changing statements and spite the fact that he stated that he had been acquitted by the appellate Court, and then stated about his dismissal but while giving his name and address, he mentioned that he was still under suspension on the date his statements were recorded. Besides this, the witness has admitted that he has given statement under Section 161 Criminal Procedure Code wherein he has stated that on a shop belonging to Kailash son of Kaluram, Gulab and Kailash sell opium and ganja without licence. He admitted to have given this statements. Kailash was neither arrayed as an accused nor is before the Court. Besides this, the witness has admitted that he has given statement under Section 161 Criminal Procedure Code wherein he has stated that on a shop belonging to Kailash son of Kaluram, Gulab and Kailash sell opium and ganja without licence. He admitted to have given this statements. Kailash was neither arrayed as an accused nor is before the Court. Regarding calling of the Motbirs also, the statement of this witness before the Investigating Officer was that Liyakat and Ramchandra were called at 12.15 p.m. but he does not know whether they reached there or not, which statement, it appears from the reading of the statements of this witness that he wants to suppress something and has not come out with a clear statement. He was under suspension on the date of occurrences on a charge of outraging the modesty of a lady as he admits to have been convicted under Section 354 IPC and gives different version about the time and place of his informing Chunnilal of the occurrence will make further comments about his statement at the relevant time. 9. PW 2 is Liyakat Ali who is a Motbir. He has been declared hostile by the prosecution. He has also denied to have given any statement to the police which is Ex. 6. 10. Karni Singh (PW 3) was Head Constable at Police Station, Sadar, Sikar who accompanied the police party. He is alleged to have received the telephone from Dy. S.P. at 11.30 a.m. to go along with him to Salasar along with other police officials all of them first went to the shop of accused Gulab were they called two Motbirs Ramchandra and Liyakat. In their presence search was conducted. On recovering ganja and Opium, as mentioned in the statement, they were sealed. Thereafter they went to the residence and there also searched at 4-5 places and further recovered opium as well as Ganja. He also states about preparation of the necessary documents and taking the samples and sealing them. In cross-examination, this witness admits that in Rojnamcha, he did not enter about going to the shop or to residence of Gulab. He admits that he did not enter the rooms from where the recovery was made but it was Baburam and Dy. S.P. who had gone inside. He also admits that number of shops were open in the locality when the search was being carried out. He admits that he did not enter the rooms from where the recovery was made but it was Baburam and Dy. S.P. who had gone inside. He also admits that number of shops were open in the locality when the search was being carried out. Similarly, he admits that there are number of houses where persons were living in the vicinity of the house where search was carried. He, however, states that he cannot say whether any person of the locality was asked to come or not. He also could not say as to how many persons or family members were in the house. He admits that the house was open. He also admits that he had not even tone inside the shop and he had remained standing out side. He, however, denied the suggestion that he did not go to the shop or the residence of the accused and that false document might have been prepared. Regarding calling of the witnesses the witness denied his knowledge and says that Dy. S.P. knows about the witness from where they were called and that they were the same witnesses at the residence also. He denied that the accused has been falsely implicated in the case. He also denied that the case has been made in order to re-instate Pokar Ram who was suspended. 11. PW 4 is Khan Mohammad who is also a Foot Constable. He submits that he was given ten packets to be handed over to Forensic Science laboratory from the office of Police Superintendent, Sikar along with a for warding letter. He submits that he had handed over the same in seated condition to the Director. This witness states that packets were handed over to him on 6-3-1976 at 6.00 a.m. and at 10.30 a.m. he had handed over the same to Director, Forensic Science laboratory. He admits that he does not know what was written on the packets and what types of seal was there. He further says that he does not know what was written on the seal as he had not read it. He also does not know what was written on the packet and what it contained. He states that he had received only one letter and on this letter the sample of the seal was not affixed. He further says that he does not know what was written on the seal as he had not read it. He also does not know what was written on the packet and what it contained. He states that he had received only one letter and on this letter the sample of the seal was not affixed. In Court questions also he admits that one form was given to him from the office of the Police Superintendent which was not a sealed envelop. Thus, this witness has stated that samples were delivered to him on 4th March, 1976 but no separate specimen seal was given along with them. 12. PW 5 Babu Ram is the S.H.O., Police Station Raghunathgarh. On the date of occurrence he had casually come to Sikar for giving some statements on that day but was asked by Dy. S.P. to accompany him for carrying on the aforesaid search. He states that Pokarmal Mukhbir was also with Dy. S.P. On bus stand, two Motbirs Ramchandra and Liyakat were called and then they went to the shop of accused Gulab who was present in the shop. The search of the shop was taken and Ganja and opium was recovered. Samples were taken and rest were sealed. Thereafter they went to the residence of Gulab from where also Ganja and opium were recovered on search. He gives the detailed description of the search carried out and thereafter submits that the material recovered including the the seals and weights were sealed. The witness in cross-examination stated that there was none else on the shop except accused and that during those days his posting was, at Police Station Raghunathgarh. He showed his ignorance as to who was contractor of the shop. He also denied to have any knowledge as to whether Kailash was the licence holder of the shop. He further denied that he cannot say whether the licence and the documents were displayed on the shop and whether any stock register was maintained in respect of the sale of empty poppy capsules. He further admits that he does not know whether any record was seen in the shop and whether licence was asked to be produced. He denies to have called the accused from the shop of one Mahaveer whose shop is nearby. He also does not remember whether the Galla was locked or not. He further admits that he does not know whether any record was seen in the shop and whether licence was asked to be produced. He denies to have called the accused from the shop of one Mahaveer whose shop is nearby. He also does not remember whether the Galla was locked or not. He states that Pudiyas in which the opium and ganja were brought out had been taken out by Gauri Shanker. He also does not know about taking the weight of the recovered articles in the shop. He admits that he is not a signatory to the search memo Ex. 2. He has been cross-examined at length about the topography of the house but that is not very material for this judgment. He has denied the suggestion that one or two days prior to this occurrence one mound opium was recovered from one Gokul but the accused was let out in that case. He also denied that Kailash was sitting on the shop as a licence holder. 13. Ramesh Sharma (PW 6) is Assistant Director of State Forensic Science Laboratory who was proved report Ex. P. 1. He stated that these packets had been sent to Leboratory along with a letter of S.P. Sikar dated 25th February, 1976 and were received on 6th March, 1976 through a personal messenger. The contents referred to an incident dated 14th February, 1976. He gives the details about the bringing out the goods in the various bags and analysing the same. He has proved that Article 1 to Article 10 are the same. 14. PW 7 is Chunnilal Dy. S.P. who was incharge of the entire raid. According to him it was at 11.00 a.m. on 14-2-76 that Pokarram came to his official residence and told him that Gulab accused-petitioner is carrying out the business of opium and ganja. He, therefore, accompanied with C.I. Prabhati Lal Sub-Inspectors Mahipal and Baluram and others reached Salasar. He took two persons Ramchandra and Liyakat as Motbir from the bus stand and thereafter took the search of the premises of the shop from where he recovered 50 gms. of opium and 350 gms of Ganja. He states that he got the search conducted by Gauri Shanker. He took two persons Ramchandra and Liyakat as Motbir from the bus stand and thereafter took the search of the premises of the shop from where he recovered 50 gms. of opium and 350 gms of Ganja. He states that he got the search conducted by Gauri Shanker. He also got the document prepared in the hand writing of Gauri Shanker and thereafter with the two Motbirs went to the residence of the accused where he got the search conducted by S.I. Baluram who recovered in all 30 kg. and 380 gms. of Ganja and 5 kg. and 550 gms. of opium. Samples were preserved and sealed in accordance with the rules. Site plan and other documents were prepared and the bulk was also got sealed. He has proved the various documents as well as the articles produced in the Court. In cross-examination, the witness proved Ex. D-1 and D-2 as the statements of Pokar Ram and Karani Singh respectively recorded by him. He admitted that he had no knowledge as to the shop in which opium and ganja were recovered was in contract of one Kailash but according to him on the counter accused was sitting. He has submitted that he does not know as to whether the licence has to be exhibited on the shop or not. A admits that he did not check any licence nor he demanded. He only demanded about the licence of ovum and Ganja which the accused slid not possess. He denied the suggestion that accused had no relation with that shop but admitted that he considered himself as to be the owner because he was sitting on the counter. He admits that he has not asked any body in the locality as to whether the accused the owner of the shop or not. He admits that subsequently also neither he investigated in this respect nor looked into any record of the shop. He also admitted that Pokarm Constable, the Mukhbir had been removed from the service. He admits that no person in the neighbourhood was called. He stated that he had no knowledge as to whether the house was residential or was a guest house. Then stated that at that time it was only a residential premises. 15. This all is the prosecution evidence. Accused has examined Laxmi Prasad (DW 1) who is a Vaidhya. He admits that no person in the neighbourhood was called. He stated that he had no knowledge as to whether the house was residential or was a guest house. Then stated that at that time it was only a residential premises. 15. This all is the prosecution evidence. Accused has examined Laxmi Prasad (DW 1) who is a Vaidhya. According to him, police had come on the shop of Kailash and at that time Gulab was sitting with him. Dy. S.V. called Gulab as at that time Kailash was not there. Father of Kailash was sitting on the shop of Mahaveer at that time. Police people had entered the same. However, Gulab did not enter the shop when police searched it. In his presence no search was taken. According to him, no document was prepared there. In cross-examination, he has stated that Kailash is the cousin of accused-petitioner. Police had taken away Gulab after the shop was searched. Gulab had stated that he is being falsely implicated. He admitted in cross-examination that when the search started, Kailash was sitting but he had run away. In answer to the question of the Court, he stated that accused is giving cycles on hire and he is not doing any business. 16. Richpal (DW 2) has stated that the shop of Kailash was searched. They later on went to the house of Gulab. When the police people had gone inside, Gulab was standing out side with the Inspector. Gulab is running a cycle shop according to this witness. Almost similar is the statement of Madhoprasad. 17. Ram Chandra is the Motbir who has been left out by the prosecution. He stated that he had come after the search was complete. This is, all the defence evidence. 18. The learned appellate Court after consideration of the evidence gave certain observations in the case which are of quite some importance. The learned appellate Court took note of the fact that Poker Mal is not the signatory of Ex. P. 1 or Ex. P. 2. The learned Judge relied his statement as according to him the search was taken in his presence. In my opinion. the learned Judge ought to have considered his statements as a whole and than should have come to a conclusion whether he is a reliable witness or not. In isolation, the fact should not have been taken note of. The learned Judge relied his statement as according to him the search was taken in his presence. In my opinion. the learned Judge ought to have considered his statements as a whole and than should have come to a conclusion whether he is a reliable witness or not. In isolation, the fact should not have been taken note of. He was a dismissed employee being a previous convict and his statement that in his presence the accused had been selling opium and ganja to unknown persons, is not Corroborated in as much as he is alleged to have seen the transaction in the morning at about 10.30 a.m. and this raid was conducted at 12.30 a.m. within these two hours there is nothing on record to show that any business was transacted in the shop as no money has been recovered from the Galla and it is said that it was lying empty. Had the illegal transaction taken place as stated by the witness, some sale proceeds ought to have been either on his person or in the Galla. Besides this, there is contradiction in the statement of this witness as to the place of mentioning the name of Kailash in his statement. It cannot be denied that this witness in his police statement has categorically stated thar the shop belongs to Kailash where both the Kailash and the present accused petitioner Gulab were jointly carrying on the business. He has deliberately omitted the name of Kailash in the statements before the court. The findings of the learned Judge that these days in big cities since shops are not easily available and even two persons may share the shop is absolutely a surmise and if he had to draw such inference, the same could be drawn otherwise also. The statement of Pokar Mal does not inspire confidence. No independent witness has been examined in the case in as much as Ram Chandra, Motbir, has not at all been produced while Liyakat Ali has not supported the prosecution story. The entire case rests on the statement of the police officers, whose statements have been believed by both the courts but the question is whether in the given circumstances of the case. the statements of the police officers were sufficient, is to be seen. The entire case rests on the statement of the police officers, whose statements have been believed by both the courts but the question is whether in the given circumstances of the case. the statements of the police officers were sufficient, is to be seen. One very important factor which has come in the case from the very beginning is that the shop belongs to Kailash and if this fact had come before the investigation in the statements recorded by him under Section 161 Cr. P.C., it was obligatory for him to have investigated into that aspect of the matter particularly because if it had been proved that he had been the owner, he should have also been tried. It is regret able that the Investigating officer did not even care to look into the licence of the shop when the licensed goods were being sold. It is a matter of common knowledge rather than it is the mandate of the law that not only the certificate issued by the various departments under various statutes are to be obtained but they have to be displayed at a conspicuous place in the shop and if that is not done than the act of not displaying is itself punishable under the statute the licence has been obtained. In the instant case, there ought to have been not only the licence about running the shop of the local authority but the licence must have been obtained from the Excise Department for selling the empty poppy capsules and that ought to have been checked. That not having been done, the very foundation of the case is shaken because it is essential in the cases like the present that conscience possession over the goods has to be proved by the prosecution. It is not a case where the goods might have been recovered in pursuance of an information which might have been given by some accused who was under arrest. In that eventuality, the fact discovered can connect the accused with the crime but in the cases of search and seizure in consequence of the search the gravity is more. Here are the persons who had entered the shop and the house and made the search, ought to have got themselves searched before the Motbirs prior to their entering and secondly, the Motbirs should have been reliable persons and that of locality. Here are the persons who had entered the shop and the house and made the search, ought to have got themselves searched before the Motbirs prior to their entering and secondly, the Motbirs should have been reliable persons and that of locality. In the instant case it is admitted that persons of the locality were not called and the search was not effected in their presence. Besides this, it is also admitted that Motbirs were not asked to search the members of the searching party who had entered for the purpose of seizure and, therefore, in my opinion, the seizure in the instant case does not inspire confidence. There are as many as three defence witnesses, who had been produced in the case who have stated that accused is sitting for giving the cycles on hire at the place where there is shop of Kailash. May be that Kailash might have asked accused Gulab to sit in the shop during his absence but that would not fasten the liability of the guilt on him as mere sitting would not amount to his conscience possession. Some holds good for the seizure from the house which also not have been proved to be either in exclusive possession of the accused or the place where from it is recovered to be in control of the accused-petitioner. It is an admitted case of the prosecution that several persons are living in the premises much less when the prosecution itself initially started with two accused persons; during investigation dropping the one or rather not investigating against one and filing the charge-sheet against the other, amounts to unfair investigation and for all these reasons feel that this is a fit case where benefit of doubt should have been extended to the accused-petitioner. 19. The result of the aforesaid discussions is that the revision petition is allowed, judgments of the courts below are set aside and the accused Gulab Chand is acquitted of all the charges. He is on bail and need not surrender to bail bonds. Fine, if deposited, shall be refunded to the petitioner.Revision allowed. *******