S. D. JHA, J. ( 1 ) CONVICT appellant Shiv Singh son of Nathu Singh (hereinafter called the accused) challenges judgment dated 9/8/1990 delivered by Second Additional Sessions Judge, Ujjain convicting the accused under section 8/18 of No U. P. S. Act, 1985 (for short the Act) and sentencing him to 10 years R. I. and fine of Rs. 1,00,000. 00 in default further two years R. I. ( 2 ) THE accused was prosecuted by Control Narcotics Bureau, Ujjain, Prosecution story is that on the date of incident 25/8/1986 accused was travelling in bus No. CPW - 6801 and sitting on seat No. 27 of the bus; Sub-Inspector Narcotics Larman Kataria (P. W. 1) was on checking duty/ujjain Agra Road Makodia octorai post. When the bus reached the Octorai post, Laxman Kataria checked the bus with his constables and it is alleged that accused was found carrying a bag containing opium, which subsequently was found to weigh 750 gms. The opium was seized, got chemically examined and thereafter report put up against the accused. ( 3 ) ON 25/6/1990 accused pleaded not guilty to charge under Sections 8/18 of the Act. In his examination under section 313 Cr. P. C. while he admitted the bus having been checked and his travelling in the bus, he denied all the material allegations. He did not examine any witness in defence. He was found guilty and convicted and sentenced as stated above. ( 4 ) AT the hearing of the appeal, accused was from jail. He was represented by Shri A. Siddiqui, Advocate, Counsel provided by Legal Aid Committee. The Narcotics Bureau was represented by Shri A. H. Khan, Counsel for the Department. ( 5 ) SHRI Siddiqui argued that the salutary provisions providing for safeguards to the accused contained in section 42 as to empower Officer only arresting the accused, Section 50 conditions under which search of persons shall be conducted, Section 55 providing for police taking charge of articles seized and, delivery and section 57 of the Act providing for report of arrest and seizure, were, not followed. He also submitted that the prosecution evidence adduced in the case did, not satisfactorily bring home the charge against the accused. He also submitted that the prosecution evidence adduced in the case did, not satisfactorily bring home the charge against the accused. In support of his contentions Shri Siddiqui relied on the following decisions: laxmibai v. State of M. P. , vishnu v. State of M. P. , bundu v. State of M. P. , ( 6 ) FOR the Department Shri A. H. Khan while not disputing that the provisions of the Act referred to by Shri Siddiqui were not followed, submitted that even inspite of these infirmities the evidence brought home the charge against the accused and in absence of any prejudice or infirmity to the accused by non-observance of the provisions, his conviction should be upheld. He urged for the dismissal of the appeal. ( 7 ) IN the fact and circumstances of the case it is not considered necessary to deal with and discuss all the decisions cited by Shri Siddiqui and the provisions referred to by him, because the appeal can be decided on the short ground of paucity of credible evidence connecting the accused with the crime. Of the five witnesses examined by the prosecution, panch witnesses Ramchandra and Radheshyam P. Ws. 2 and 3 did not support the prosecution case. They were declared hostile and cross-examined by the prosecution. Nothing emerged in their cross-examination by the prosecution of advance the prosecution case. R. K. Menon (P. W. 5) had directed S. I. Kataria for making the checking and had forwarded the sample seized to Chemical Examiners factory. The material evidence on which conviction of the accused is based consist in the statements of Constable Lal Bihari Singh (P. W. 4) and Laxaman Kataria (P. W. 1) While according to Lal Bihari Singh (P. W. 4) he himself, Kataria, S. 1, and one Dandada entered into the bus when Dandada Stated that on seat No. 27 a person was sitting in suspicious circumstances and was smelling of opium, this Dandada Saheb has not been examined by the prosecution. Proceeding further witness says that the person on the scat when questioned gave out his name as Shiv Singh son of Nathu Singh, resident of Richha i. e. the accused. He further says that the person had on his lap a British Air Bag and he was made to alight from the bus along with the bag and the two panchas Ramchandra and Radheshyam were called. He further says that the person had on his lap a British Air Bag and he was made to alight from the bus along with the bag and the two panchas Ramchandra and Radheshyam were called. As already stated Ramchandra and Radheysyam have not supported the prosecution case. Though the witness in his statement maintained that accused had the bag in his lap, in his earlier statement Ex. D. 1 there is no mention about the accused having the bag on his lap. The statement is an improvement made before the Court and cannot be believed. Further, while according to the witness, S. I. Laxman Kataria entered into the bus, Laxman Kataria himself in his statement does not say so and is silent on the point. All that he says is that he asked his sipahis to get him down from the bus in the presence of two witnesses and then on checking he found opium in the bag as alleged. ( 8 ) IN view of non-examination of Dandada Saheb referred to in the statement of constable Lal Bihari Singh (P. W. 4) omission in Lal Bihari Singhts earlier statement Ext D-1 as to the bag being on the lap of the accused, discrepancy in the statement of Lax man Kataria, SI (P. W. 5) and Lal Bihari Singh (P. W. 1) as to who exactly got into the bus, there appears doubt whether the bag containing opium was at all on the lap of the accused as claimed by the prosecution. The benefit thereof would have to be accorded to the accused, except for this, the bag is not connected with there in any way. ( 9 ) AS result of the aforesaid discussion it is held that the prosecution has failed to satisfactorily establish possession of the bag containing opium with the accused. Appeal is, therefore, allowed, conviction and sentence imposed against the accused set aside and he is ordered to be released forthwith, if not wanted in any other case. Appeal allowed. .