JUDGMENT 1. - This appeal under section 374 Cr. PC is directed against the judgment of learned Sessions Judge, Chittorgarh Camp Nimbahera dated 30-5-88 in sessions case No. 54/86, where by the accused appellants Tarsem Kumar, Davendra Singh and Indrajeet have been convicted under section 8/18 of the N.D.P.S. Act, 1985 and sentenced each of them to 10 years R.I. and to pay a fine of Rs. 1 lakh and in default of payment of fine to undergo further 1 year's R.I. 2. Briefly stated the facts of this case are that on the information received on 10-6-86 that one truck No. DEL 3097 carrying 85 kgs opium was going to Delhi, PW 8 Prakash Chand Dbyani, Sub-Inspector, Narcotics with his preventive force left Neemach in jeep and reached at 1.15 a.m. at Nimbahera Municipality Checkpost No. 5. It was found that railway gate was closed where a truck No. DEL 3097 was standing, wherein three persons were sitting The truck was having 12.875 metric tonne load goods which were unloaded in the presence of motbirs and in the floor of the truck from a secret chamber 18 raxine bags were found. Each bag had 4.750 kg. of opium and in all 85.500 kgs. opium was recovered. Samples of 30 gms. each were taken from every bag and after taking them, two samples of 500 gms were prepared and sealed. Rest of the opium was also sealed and seized under section 8/18 of the N.D.P.S. Act, 1985. Accused appellants were arrested at spot. Panchnama Ex.P 1 was prepared on the site, Naksha Mauka (map of the site) Ex.P 2 was also prepared. Search memos of the three accused persons Ex.P 3 of Tarsem Kumar Ex.P 4 Davendra Singh and Ex.P 5 Inderjeet were prepared. Opium and truck No. DEL 3097 were seized vide Ex P 8 and Ex.P 9 respectively. Thereupon FIR Ex.P 11 was filed by PW 8 Prakash Chand Dhyani of the incident which was registered as Ex.P 12 and was sent to M J.M., Chittorgarh on 11-6-86. The samples were sent for examination with one Lalsingh an employee of Narcotics Dept, with a forwarding letter Ex.P 7 on 16-6-86 and the same were received at Neemach Government Opium Works vide receipt Ex. P 6. On chemical examination 6.82 morphin was found, in samples vide report Ex. P 18 dated 3-8-86. The samples were sent for examination with one Lalsingh an employee of Narcotics Dept, with a forwarding letter Ex.P 7 on 16-6-86 and the same were received at Neemach Government Opium Works vide receipt Ex. P 6. On chemical examination 6.82 morphin was found, in samples vide report Ex. P 18 dated 3-8-86. Ex.P 19 sample seal was put on the sample. During the investigation statement of Gopichand motbir was recorded vide Ex.P 10, statement of Prakash Chand Dhyani was recorded vide Ex.P 13, statement of Ashraj, Narayan, Lalchand and Virendra Kumar were recorded vide Ex. 14, 15, 16 and 17 respectively. A challan under section 8/18 was filed against all the accused appellants in the court of concerned Magistrate and they were committed to the court of Sessions Judge. Charge under section 8/18 was framed against the appellants. The appellants stated that they were wrongly arrested as seized opium was recovered from another Iruck, and the appellants pleaded not guilty and claimed trial. The prosecution in support of its case examined PW 1 Bhagwan Sahai, PW 2 Bheru Singh, PW 3 Lalsingh, PW 4 Gopichand. PW 5 Kalusingh. PW 6 Madanlal, PW 7 Dhirendra Kumar, PW 8 Prakash Chand and PW 9 Gulraj Bhatia. In defence the appellants produced DW 1 Narayan and DW 2 Hukmichand The learned Sessions Judge after due trial sentenced the accused appellants as stated above. Hence, this appeal. 3. I have heard Mr. Garg, learned counsel for the appellants who assailed the judgment passed by the learned court below on various grounds, and also Mr. Bhati, learned Public Prosecutor who has supported the judgment and submitted that the appellants have been rightly convicted and sentenced. I have also perused the record and relevant case law. 4. Mr. Garg. learned counsel for the appellant has firstly contended that the prosecution has violated Section 50 of the N.D.P.S. Act and relied on Nathia & Anr. v. State of Raj. (1991 WLN(l)-62) , Biram v. State of Raj (1988(2) RLR-322) , Chotelal v. State of Raj (1590(1) Crimes-246) . Hakam v. V T. Chandigarh (1988 Cr L.J.-528) , Bhanwar Singh v. State of Raj. (1990(1) WLN-710) and Kabu @ Khudia v. State (1991 Cr.L.R. (Raj.)-183) . 5. v. State of Raj. (1991 WLN(l)-62) , Biram v. State of Raj (1988(2) RLR-322) , Chotelal v. State of Raj (1590(1) Crimes-246) . Hakam v. V T. Chandigarh (1988 Cr L.J.-528) , Bhanwar Singh v. State of Raj. (1990(1) WLN-710) and Kabu @ Khudia v. State (1991 Cr.L.R. (Raj.)-183) . 5. In the matters governed by N.D.P.S. Act it is settled proposition of law that compliance of S. 50 of the Act is mandatory, which provides that when any officer duly authorised under section 42 is about to search any person under the provisions of Sections 41, 42 and 43 he shall if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the Department mentioned in section 42 or to nearest Magistrate. In this case PW 7 Dhirendra Kumar, Dy. Inspector Narcotics has stated that in the truck all the accused were sitting. PW 8 Prakash Chand Dhyani, Dy. Inspector, Narcotics has stated that near the railway crossing the alleged truck was standing at Checkpost no. 5. Both the witnesses did not say that they ever asked these appellants whether they wanted to take their search before any Gazetted officer or Magistrate. Therefore, it does not borne out from the record that the appellants when arrested were asked any question in this regard, in compliance of said section at the relevant time nor they have stated in their evidence that the appellants have not availed their suggestion. Therefore, in the absence of compliance of section 50 as required, it cannot be said that the prosecution has conducted investigation according to law and in view of the above facts and settled law, the non-compliance of Section 50 goes to the root of the case which discredits the prosecution story. 6. Mr. Garg, has next contended that the recoveries were not made from the conscious possession of the appellants as they are not the owners of the truck and simply driver and cleaner. He has placed reliance on Gurdayal Singh v. State of Raj (1976 Cr. L.R. (Raj.) 382 ), Harish Chandra v. State of Raj. (1981 Cr. L.R (Raj.) 384) , Satya Narayan v. State of Raj. (1984 RLW-48) and Yashpal v. State of Raj. (1985 RLW-456) . 7. He has placed reliance on Gurdayal Singh v. State of Raj (1976 Cr. L.R. (Raj.) 382 ), Harish Chandra v. State of Raj. (1981 Cr. L.R (Raj.) 384) , Satya Narayan v. State of Raj. (1984 RLW-48) and Yashpal v. State of Raj. (1985 RLW-456) . 7. It is true that a person can be held guilty if contraband articles found and recovered from his possession but merely on the ground that the contraband opium was found in the secret chamber of the truck, the appellants cannot be held guilty unless it is proved by the prosecution that the appellants had the knowledge regarding secret chamber from where the opium was recovered. 8. In the instant case it is not disputed that all the three accused appellants are not the owner of the truck. PW 6 Madanlal has stated in his cross-examination that the owner of the truck are Hardayal Singh and Swaran Singh. The learned trial court has also observed that Hardayal Singh and Swaran Singh were the owners of the truck but the prosecution has not produced them or any material, on the basis of which it can be said that the appellants had the knowledge regarding the secret chamber. When no such evidence or material is produced that they had the knowledge of any secret chamber, the conscious possession of the seized goods cannot be attributed to the appellants as they are not the owner of the truck, therefore, in view of the case law and in the absence of knowledge being proved by the prosecution, the finding regarding conscious possession is wrong and no conviction can be maintained. 9. Mr. Garg, has next submitted that no independent witness has been examined by the prosecution in support of its case. 10. It is no doubt true that the prosecution is expected to produce independent witness if easily available in support of its case Undoubtedly, if no other witness is available, the conviction can be passed on the sole evidence of a police officer provided his evidence is of sterling worth. In the instant case, the recovery was made in the presence of three motbirs. The prosecution has left the other two motbirs Bach Raj and Narayan and examined only one motbir Gopi as PW 4, who was ultimately declared hostile. In the instant case, the recovery was made in the presence of three motbirs. The prosecution has left the other two motbirs Bach Raj and Narayan and examined only one motbir Gopi as PW 4, who was ultimately declared hostile. On the other hand PW 1 Bhagwan Sahai has stated that at the check post, Nakedar was on duty and two to three hotels were there, PW 2 Bherusingh has stated that in the relevant night Nakedar was on duty and hotels were opened. PW S Prakash Chand has also stated that there were two to three hotels. He has also stated that there exist checkpost of RTO and Municipality and employee remain on duty continuously. On the contrary the defence has produced one Narayan DW 1 who has categorically stated that alongwith Bachraj he came on one motor cycle when search was made he did not see anything recovered from the accused or from their truck but certain recovery was made from one another truck- Under the circumstances, and on the basis of material on record no conviction can be maintained without the evidence of any independent witness when they were available. 11. Mr. Garg has also submitted that in the absence of explanation how the samples were weighed without 'Taraju' the trial is vitiated. 12. PW 1 Bhagwan Sahai has stated that they did not brought 'Taraju' with them. He has stated that he does not know from where 'Taraju' was brought PW 7 Dhirendra Kumar has also shown his ignorance about 'Taraju'. PW 8 Prakash Chand has stated that 'Taraju' in which opium was weighed was not brought by them but they took it from the shop of Gopi. This statement of PW 8 Prakash Chand does not find corroboration with the statement of Gopi PW 4 who has become hostile. Therefore, the evidence regarding 'Taraju' and weighing of opium becomes doubtful. 13. Mr. Garg has further contended that specific seal of the sample was not sent alongwith the sample sent for chemical examination and samples were not taken from each and every raxine bag. 14. Admittedly, two samples were prepared by mixing all the material whereas the samples were required to be taken from each and every bag, to show that each and every bag contains opium. Similarly the prosecution has to prove that specific seal of sample was sent with the sample. 14. Admittedly, two samples were prepared by mixing all the material whereas the samples were required to be taken from each and every bag, to show that each and every bag contains opium. Similarly the prosecution has to prove that specific seal of sample was sent with the sample. Under the circumstances, it creates doubt about the prosecution story. 15. In view of the facts and circumstances of this case and the reasoning's given above, the conviction of the appellants passed by learned District and Sessions Judge cannot be sustained as the persecution has failed to prove its case beyond reasonable doubt and the conviction of the appellants cannot be maintained. 16. In the result, this appeal is allowed. The conviction and sentence passed by the learned Sessions Judge, Chittorgarh are set aside and they are acquitted of the offence under section 8/18 of the N.D.P.S. Act. The appellants are in jail, they be released forthwith if not required in any other case.Appeal allowed. *******