S. D. JHA, J. ( 1 ) CONVICT appellant Bundu sb Sadi, (hereinafter accused), through this appeal presented from jail challenged his conviction under section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N. D. P. S. Act 1985), and sentence of 10 years R. I. and fine of Rs. llakh, in default, further R. I. for ten years awarded by Additional Judge to the Court of Session Judge, Mandsaur at Garoth by judgment dated 17-7-1990. ( 2 ) THE accused was prosecuted by P. S. G. R. P. Shyamgarh. , The prosecution story is that on 12-12-1989, Head Constable Omendra Singh Tomar (P. W. 3) was on duty at the railway station alongwith Police Constable Sudhakar Rao (P. W. 5) and Kailash Chandra (not examined by the prosecution ). ( 3 ) CHALLAN was then put up against the accused. Before Special Judge (Additional Judge to the Court of Session Judge, Mandsaur at Garoth) on 15-2-1991, the accused pleaded not guilty to charge under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. In his examination, the accused admitted arrest and having been taken to police station but denied all the material allegations. He did not examine any witness in defence. The Special Judge found the accused guilty and convicted and sentenced him as already stated above. ( 4 ) AT the hearing of the appeal, the accused was produced from jail. Shri Brajesh Pandya, Counsel provided by legal aid committee, representing the accused submitted that the evidence adduced by the prosecution was discrepant, suspicious and untrustworthy. On the evidence adduced by the prosecution, the accused ought not to have been convicted. He also argued that there was noncompliance of sections 50 and 57 of the N. D. P. S. Act 1985, vitiating the conviction and sentence awarded to the accused. He urged for an acquittal. In support of his submissions, Shri Pandya relied on Baldev Singh v. State of Punjab. Shri S. M. Bapat, Dy. Government Advocate, representing the respondent-State, defended the impugned judgment. ( 5 ) THE material evidence on the point of seizure of contraband straw from accused, consists of statements of Head Constable Omendra Singh Tomar (P. W. 3), Lokendra Kumar (P. W. 1) Sriniwas (P. W. 2) and Constable Sudhakar Rao (p. W. 5 ). Shri S. M. Bapat, Dy. Government Advocate, representing the respondent-State, defended the impugned judgment. ( 5 ) THE material evidence on the point of seizure of contraband straw from accused, consists of statements of Head Constable Omendra Singh Tomar (P. W. 3), Lokendra Kumar (P. W. 1) Sriniwas (P. W. 2) and Constable Sudhakar Rao (p. W. 5 ). According to Omendra Singh (P. W. 3) and Sudhakar Rao (P. W. 5), an old man with a bundle hanging by the shoulder was just in the act of getting into the general compartment of the frontier mail. Then Omendra Singh felt the bundle and grew suspicious. According to Sudhakar Rao (P. W. 5) when Omendra Singh felt the bundle Lokendra Kumar and Srinivas were also standing there. According to Omendra Singh, after he had felt the bundle and grown suspicious, he called the witnesses Lokendra Kumar and Sriniwas. This by itself might appear to be a minor discrepancy, but when examined with reference to statements of Lokendra Kumar (P. W. 1) and Srinivas, the discrepancy acquired importance. Lokendra Kumar (P. W. 2), runs a tea stall at the railway station. According to this witness, while he was going to the back side of the platform No. 2 on one of the benches constructed for passengers to sit, on one end the bundle was lying and on the other end of the bench, the accused was sitting. He was called by one Pathak Saheb of G. R. P. , i. e. , Government Railway Police, who pointed out abundle to him and asked to find out as to what was in the bundle. The witness found Poppy straw in the bundle. Having seen and done this, witness left the place. According to him after some time he was called to the police station, where he saw, the accused and the bundle, which he had seen earlier, and on being weighed, it was found to be 14 kgs, and samples were taken out of the same. The prosecution made and attempt to declare the witness hostile. According to him after some time he was called to the police station, where he saw, the accused and the bundle, which he had seen earlier, and on being weighed, it was found to be 14 kgs, and samples were taken out of the same. The prosecution made and attempt to declare the witness hostile. But the permission for the purpose was refused by the Special Judge, who permitted the prosecution to put one question for elucidating as to what exactly was the accused doing, and where was the bundle, in answer to the question whether he saw the accused with a bundle, hanging by his shoulder and whether when questioned by Omendra Singh, he gave his name as Bundu? The witness replied that the bundle was not hanging on the shoulder of the accused, but lying on one end of the bench, and on the other end, the accused was sitting. He was not asked for his name in his presence. In para 3 of his statement, the witness also stated that when he saw the bundle on the bench, on the platform, then along with Pathak Saheb of G. R. P. , head constable Omendra Singh Tomar was also there. The statement of this witness as aforesaid, would give lie to Omendra Singh Tomars statement that he felt the bundle, when it was hanging on the shoulder of the accused and he was just in the act of getting into the train. ( 6 ) THE other witness Sriniwas (P. W. 2) in his examination-in-chief, on material points did not support the prosecution. He was declared hostile by the prosecution, and cross examined, when he stated the same thing as stated by Omendra Singh Tomar, i. e, the bundle was hanging by the shoulder of the accused, and he was just in the act of getting into the train. But in cross- examination by defence, he maintained that he saw the accused for the first time at the police station only, when he was sitting on one side of the bench and the bundle was lying on the other side. From his statement it appears that he did not see the accused at the platform, he was not spoken to by any police officer. The witness has given contradictory statements at every stage and no reliance can be placed on his testimony. From his statement it appears that he did not see the accused at the platform, he was not spoken to by any police officer. The witness has given contradictory statements at every stage and no reliance can be placed on his testimony. Baldeo Singh's case (supra) would support this view. ( 7 ) WHAT however gives a clinching lie to the prosecution case, is their own document (Exl. P. 7-A) copy of rojnamcha, Entry No. 501, which is proved by L. S. . Chouhan (p. W. 6) and his answer on the point given in cross-examination. In his cross-examination, the witness admitted that in sanha No. 501, he had entered according to information given by head constable Omendra Singh and that Omendra Singh had told him that the accused was sitting on platform No. 2 with the bundle containing Dhoda Straw. In view of the entry in the rojnamcha and statement of Shri L. S. Chouhan (P. W. 6) in cross-examination on the point as also contradictions pointed out in the statements of Lokendra Kumar (P. W. 1) and Srinivas (P. W. 2), the claim of Omendra Singh Tomar (P. W. 3), and the statement of Police Constable Sudhajuir Rao (P. W. 5) that the accused was apprehended with a bundle hanging on his shoulder and while getting into the train, cannot be accepted. The emerging position is that the accused was sitting on on side of the bench and on the other end, the bundle was lying. It appears that the bundle was found to be containing Poppy Straw; liability for the same was fastened on the accused, who was sitting on the other end of the bench, and the story of bundle hanging by shoulder of the accused while he was in the act of getting into the train was invented. ( 8 ) NOW, merely because on the Railway Platform, bench which is about 6 to 8 ft. in length, on one end of which the accused was sitting and on the other end the bundle was lying, would not make the accused responsible for its possession. ( 9 ) THERE was also non-compliance with the requirement of section 500fn. ( 8 ) NOW, merely because on the Railway Platform, bench which is about 6 to 8 ft. in length, on one end of which the accused was sitting and on the other end the bundle was lying, would not make the accused responsible for its possession. ( 9 ) THERE was also non-compliance with the requirement of section 500fn. D. P. S. Act 1985 in as such as the accused was not informed of his right of being searched by the nearest Gazetted Officer of the department mentioned in section 42 of the Act or by the nearest Magistrate. In view of the finding above, as to the bundle hanging by the shoulder and the accused having been apprehended while getting into the train have been found untrustworthy, the effect of noncompliance with requirement of section 50 in this case is only of academic importance, and docs not quire any further discussion. ( 10 ) AS a result of the aforesaid discussion, the prosecution is found not to have satisfactorily established that the accused was either in possession of 14 kgs. of Poppy straw as alleged or that he was transporting the same. His conviction under section 8/15 of N. D. P. S. Act, 1985 and the sentence of imprisonment of 10 years R. I. and fine of Rs. 1 lakh as stated above would have to be and are set aside, and the appeal allowed. The fine if paid, shall be refunded. The accusedappellant who is in jail shall be set at liberty forthwith if not required in any other case. Appeal allowed. .