JUDGMENT : N.J. Pandya, J. These two appeals arise out of the judgment of conviction that came to be delivered by the learned Sessions Judge, Mehsana at the end of the trial in Sessions Case No. 74 of 1988. The said case came to be dealt with by him when charge sheet under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short "NDPS Act") came to be filed. The case arose out of an information that PSI of Visnagar Mr. Patel had received on 5-2-1988. He was given to understand that a scooter carrying two persons is to come on the highway from Gandhinagar side going towards Visnagar and these two persons are carrying on in the dickey of the scooter Narcotic material. Accordingly, a watch was kept on the road along with panchas. At about 3.00 p.m. or so, a scooter did come with 2 riders. It was made to stop, search was carried out from the dickey thereof, the raiding party found a plastic bag, which prima facie appeared to be containing brown sugar. The material contained in the bag was weighed and its weight was 910 grams. Usual sea lings and other procedures were carried out, but before that 10 grams from the bulk was taken apart and kept separately for the purpose of getting it analysed by the Forensic Science Laboratory. At the end of the said analysis, the article was reported to be brown sugar by the Forensic Science Laboratory, Ahmedabad. 2. Though at the time of the aforesaid watch, only two persons were riding the scooter No. GUH 524, there came to be arrested a third person accused No. 3, because, according to the prosecution, he was the supplier. 3. The case so far as the first two accused is concerned, is to the effect that they had borrowed the aforesaid scooter from one Govindbhai, who has been examined in the course of the trial. Therefore, apparently, as per the prosecution case, these two accused were proceedings towards Visnagar with the aforesaid article. The scooter was borrowed from Govindbhai at village Kukarwada. 4. The first two accused have taken a defence before the Trial Court that they had nothing to do with the scooter and on the contrary, both of them were in Ravi Guest House situated nearby the place where the scooter was intercepted. The scooter was borrowed from Govindbhai at village Kukarwada. 4. The first two accused have taken a defence before the Trial Court that they had nothing to do with the scooter and on the contrary, both of them were in Ravi Guest House situated nearby the place where the scooter was intercepted. According to them, the scooter was lying there in an abandoned condition and on searching the said Guest House, the police had selected these two accused because they happened to be from Kukarwada. In other words, the defence is that when the scooter was found, there being no persons riding it and as per the information, when the scooter was coming from Kukarwada carrying two persons and these accused being the persons to fill the bill, they have been wrongly implicated. 5. Accused No. 3 has taken altogether a different stand. In the cross-examination of almost all the witnesses, it has been put on behalf of the defence that on 5-2-1988, a scooter was coming from Idar going towards Visnagar via Kukar wada. As it comes near Kukarwada, it has to pass through a level crossing. Before that, however, it was followed by a police chowky. The scooter-according to the defence was being driven by Govindbhai, the owner thereof. He is the same person from whom according to the prosecution, accused Nos. I and 2 had borrowed the scooter. Coming back to the case of accused No. 3 as Govindbhai and accused No. 3 saw a jeep- car following them, Govindbhai felt that they are being chased and therefore, he with a view to escape the chase, proceeded further and luckily for them, they could manage to clear the level crossing, before the jeep-car could do so as a train was about to pass through the level crossing, the gate was closed and that is how they could escape the chase. 6. Accused No. 3 has referred to this in his further statement under Section 313 and taking all opportunity, has submitted his statement in writing also at Exh. 60. There he does not speak about closing of the level crossing gate, but he says the Govindbhai on finding the fact that jeep-car is following them, instead of going to Kukarwada, decided to proceed towards Visnagar and thus succeeded in escaping the chase. 7. 60. There he does not speak about closing of the level crossing gate, but he says the Govindbhai on finding the fact that jeep-car is following them, instead of going to Kukarwada, decided to proceed towards Visnagar and thus succeeded in escaping the chase. 7. Apprehension of accused Nos.1 and 2 at the aforesaid place at the ti me of interception led to the interrogation and from there, it was found that at Kukarwada, there is likely to be some further Narcotic articles and therefore, they decided to search the premises of accused Nos.1 and 2, as also the premises of accused No. 3. As a result of this search, separate case came to be registered with Vijapur Police Station and that has resulted into another case. However, that has been confined to only accused No. 3 because the search had resulted into finding of some quantity of opium from the house where accused No. 3, according to the prosecution, was residing. We are told that at the end of the trial of that case, accused No. 3 has been acquitted. We are not concerned with that case for the present. So far as the present case is concerned, qua accused Nos. 1 and 2, the situation is that they were found, according to the prosecution actually riding the scooter and on it being intercepted, Narcotic weighing about 910 grams which was subsequently found to be brown sugar was recovered from its dickey. Therefore, if we believe the panch Amthabhai, who according to the prosecution was present at the time of interception as one of the panchas, the order of conviction passed by the learned Judge will have to be upheld. 8. So far as accused No. 3 is concerned, there is no such evidence and he was certainly not present at the time when the scooter was intercepted. Therefore, we have gone through the material on record and we are happy to place on record a very fair stand taken by Ld. APP Mr. J.A. Shelat that except for the reasoning given by the learned judge and the material relied on by him, so far as accused No. 3 is concerned, there is nothing. In other words, according to Mr. Shelat also, unless we accept the reasoning of the learned Judge, the conviction of accused No. 3 cannot be sustained. 9. APP Mr. J.A. Shelat that except for the reasoning given by the learned judge and the material relied on by him, so far as accused No. 3 is concerned, there is nothing. In other words, according to Mr. Shelat also, unless we accept the reasoning of the learned Judge, the conviction of accused No. 3 cannot be sustained. 9. In this regard, we may refer to para- graph 6 of the judgment at page 75 of the paper book where material portion pertaining to accused No. 3 is to be found as also on page 77. The learned Judge is relying on the fact that after accused Nos.1 and 2 were intercepted, the police had obtained information from them with regard to accused No. 3 and that is how, search for accused No. 3 was carried out and he was finally located at his residence in village Kukarwada. A separate raid in presence of PSI Vijapur was carried out and from the person of accused No. 3, opium was found and in respect of that, a separate case has been filed, with which we are not presently concerned. 10. Later on, the learned Judge says that looking to the explanation given by accused No. 3 that too in writing, according to him, he was connected with the said Scooter bearing No. GUH-524, when according to accused No. 3 on earlier part of the day, he was a pillion rider of that scooter which was being driven by witness Govind bhai. They are chased at that time by a police jeep and they could manage to escape as described earlier. However, in paragraph 6 which runs into several pages, the learned Judge in our opinion, has gone on inferences and conjectures which are hardly warranted by the material on record. There is nothing whatsoever to suggest that even if the aforesaid written submission of accused No. 3 is accepted and taken at its face value that after he went away on account of the said chase given by the police, according to accused No. 3 he had never met either of the accused Nos.1 and 2 and had handed over the parcel containing brown sugar which was ultimately intercepted. 11. Suggestions made in the cross-examination can never be used against the accused on whose behalf they are made by the learned Advocate appearing for the accused. 11. Suggestions made in the cross-examination can never be used against the accused on whose behalf they are made by the learned Advocate appearing for the accused. Unless therefore, there is any direct evidence, the material relied on by the learned Judge namely the statements of the co-accused before the police cannot be used in the manner like the learned Judge has discussed. It is, therefore, clear that the appeal of original accused No. 3 who is appellant No. 2 in Criminal Appeal No. 945 of 1988, will have to be accepted and the order of conviction against him will have to be set aside. 12. Coming to the case against accused Nos. 1 and 2 i.e. the solitary appellant of Appeal No. 942 of 1988 and the remaining appellant of appeal No. 945 of 1988, we have to examine and closely scrutinise the evidence of Panch witness Amthabhai, PW I Exh.10 page 21 of the paper book. L.A. Mr. Anandjiwala appearing for the appellants in Appeal No. 945 of 1988 and Mr. J.M. Panchal appearing for the appellant in the other, had strongly submitted that he is a selected punch, who has been brought on the scene solely with a view to see that he tows the prosecution line. For this purpose, he is relying on the fact that the witness is connected with Deepali Cinema, where he is working and his duty hours are from 12 noon to 6.00 p.m. He admits in categorical terms that as a part of his duty, he do see police officials being kept at the hall for maintaining public order. However, he knows them by face only and has not come in their contact so as to know them either by their names or any further. So far as the evidence of this witness from examination-in-chief onwards is concerned, we find that his story is quite natural. Where ever the situation arises, where he does not remember any particular fact, he has frankly admitted so either in his examination-in-chief or in cross. So far as the scooter is concerned, he does say that it was intercepted, but the fact whether there were two persons on its or not, he says that, because of passage of time, he does not recollect. He identifies accused No. 1 to be the person who was there at the time when the scooter was intercepted. So far as the scooter is concerned, he does say that it was intercepted, but the fact whether there were two persons on its or not, he says that, because of passage of time, he does not recollect. He identifies accused No. 1 to be the person who was there at the time when the scooter was intercepted. He does recollect that there was one more person but he does not identify accused No. 2 to be that person. Thus, he says that article was recovered from the dickey which appeared to be a substance like power of snuff colors and at the end of the panchananta drawn for that purpose, he has put his signature, as also signatures on the slips which are affixed on the parcel that was prepared after seizure. 13. Understandably, earlier part of the cross- examination is about his work with the said Cinema Hall and the possibility of his coming in contact with the Police officers and police personnel in general. Then questions have been put to him about the key of the scooter whether it was seized or not. He says that he does not remember. He does say about the seizure of the aforesaid article and drawing there from of a small quantity of about 10 grams separately. He speaks about weighment having been done, but he does not recollect who had brought the weighing scale as well as the weight. 14. If at all there has been a witness who is out to oblige the police as suggested by the defence and was eager to tow the official line, one would have expected him to say meticulously everything which the police authorities wanted him to. The raid took place on 5.2.1988 and his deposition was recorded within six months. In spite of that whenever he did not recollect, he candidly said so and about the material part whatever he could recollect, he has deposed and he withstood the stage of cross examination. We do not see any reason to disbelieve this witness and to brand him as selected witness and the defence version cannot be accepted in that regard. 15. All throughout the trial, on behalf of all the three accused, the aforesaid chase from Vijapur to Kukarwada has been strongly pressed into service and heavily relied on. We do not see any reason to disbelieve this witness and to brand him as selected witness and the defence version cannot be accepted in that regard. 15. All throughout the trial, on behalf of all the three accused, the aforesaid chase from Vijapur to Kukarwada has been strongly pressed into service and heavily relied on. To develop further, according to the defence, witness Govindhhai had brought the scooter upto the place where, according to the prosecution, it was intercepted when accused Nos. 1 and 2 were riding it. No doubt, according to the defence, after witness Govindbhai brought the scooter up to that spot, he abandoned it and went away. The police were in search of persons belonging to Kukarwada and therefore, they moved about in the vicinity and thereby there was a place called Ravi Guest House and from there both the accused were caught and when they found that they are from Kukarwada they were implicated in the case. All these questions are put to said punch witness Amthabhai and he has denied them. As stated earlier, accused No. 3 has in his written submission at Exh. 9 spoken about his having alighted from scooter in question and proceeded to village Saduthala which is about 4 kms. away from Visnagar, when one goes from Kukarwada to Visnagar. As against that, no doubt, the prosecution case is that Govindbhai, who had come from Idar to Kukarwada for his personal work was accosted by accused Nos. 1 and 2 with a request that his scooter he lent to them. He complied with the request and thereafter, the aforesaid interception took place. Govindbhai Exh.15 pages 31 to 33 of the paper book has been thoroughly cross-examined on behalf of the defence. The story that emerges to an extent, no doubt, does appear to be slightly unnatural as submitted on behalf of the appellants by L.A. Mr. Anandji wala and Mr. Panchal. In the cross-examination, Govindbhai admits that he knew accused Nos. I and 2 and he instructed them to return the scooter to his house at Kukarwada after their work is over and does not even care to inquire whether accordingly, the scooter had been returned. He comes to know about the involvement of the scooter after 7-8 days and at about that time, the police contacts him and record his statement. 16. He comes to know about the involvement of the scooter after 7-8 days and at about that time, the police contacts him and record his statement. 16. In the background of the aforesaid cross-examination, coupled with the suggestions put to him that there was a chase given to the scooter by the police and they got down etc. after cleaning the level crossing without any beneficial result to the defence, when the entire evidence on record is taken into consideration, in our opinion, this does not lead the defence anywhere. If in a place like Kukarwada which does not seem to be a very big place even when persons are not known very well to each other, if a request on the aforesaid line is made and if a vehicle like scooter is lent fora short period, that by itself cannot be said to be that unnatural as to become wholly unacceptable. 17. As stated earlier, the panch witness Amthabhai has stood the test of cross-examination very well and in our opinion, when he has supported the case of prosecution about the scooter having been intercepted in the manner stated above, the question whether Govindbhai Exh.15 would have lent the scooter or not becomes totally insignificant. 18. The defence is also relying on the copy of the logbook produced during the cross examination of PSI Chaudhari of Vijapur Police Station. The deposition of PSI Chaudhari is at Exh.25 paper book page 49. He says that he received wireless message from PSI of Visnagar Police Station that Narcotic dealings are suspected at village Kukarwada and his presence is required and accordingly from Vijapur, he went to Kukar-wada which is at a distance of about 15 kms. After the raid which resulted into the filing of a case for having found Opium, according to PSI Mr. Chaudhari, he had gone to Visnagar also, which is at a distance of about 20 kms. from Kukarwada. So, one way journey from Vijapur to Visnagar would be a distance of 35 kms. and the return journey being of the same distance, the total journey done would be 70 kms. and that exactly is the details given in the log book entry produced at Exh. 25. 19. No doubt, there is overwriting so far as the time of starting the journey is concerned. and the return journey being of the same distance, the total journey done would be 70 kms. and that exactly is the details given in the log book entry produced at Exh. 25. 19. No doubt, there is overwriting so far as the time of starting the journey is concerned. In the fourth column of that book meant for entering the time of starting the journey and reaching the destination against the starting point Vijapur, in Gujarati figures 1 and 6 are written and of that figure, 6 has been overwritten. Below that, again in that column only clearly 1-6 is written without any overwriting. So far as the overwriting is concerned, it has been put to the witness that originally it was "1-0" and "0" has been made to read "6" by overwriting and that is how the defence wanted to show that infact Visnagar PSI had given chase to the scooter as suggested by the defence. PSI Shri Chauhan has denied this suggestion and has maintained that below over- writing of figure "6" there is No. "0". We have also seen Exh.25 on the Trial Court's record and we see below overwriting "6", "0" is not to be found. In any case, as stated above, the time from 4.00 p.m. to 8.30 p.m. for the journey from Vijapur covering the distance of 70 kms. is accounted for and so far his trip to Visnagar from Kukarwada is concerned, PSI Chaudhari has clarified that he wanted to coordinate the investigation with PSI of Visnagar, so that he can make a request to the concerned Court for transfer of accused No. 3 for the purpose of his investigation required to be pursued in connection with the raid conduced at Kukarwada village. 20. Exh.25, therefore, in our opinion, has rightly been rejected by the Trial Court to make out the defence case of there being a chase in which the said witness Govindbhai, the owner of the scooter and accused No. 3 were initially involved and of course, according to the defence, accused No. 3 had no knowledge whatsoever of the contraband article, which by implication was there in the scooter. 21. Govindbhai has been tried to appear as the kingpin of the whole operation. 21. Govindbhai has been tried to appear as the kingpin of the whole operation. According to the defence, there is no suggestion that accused Nos.1 and 2, who are convicted had any knowledge about the contents of the dickey, nor is there any evidence to suggest that when according to the prosecution, they borrowed the scooter,. they had inspected it carefully and more particularly had examined the contents of the dickey thereof. This had led the learned Advocates before us to submit that in absence of any evidence that accused Nos.1 and 2 were aware of the contents of the dickey, they cannot be convicted. However, in this connection L.A. Mr. Shelat has rightly relied on Section 54. This will be discussed further later on. It was also submitted on behalf of the appellants that when the prosecution has not been able to establish the involvement of accused No. 3 from whom, according to the prosecution, the Narcotic was received, there is no reason whatsoever to maintain the conviction of accused Nos.1 and 2. Here again, Section 54 is pressed into service by Mr. Shelat and over and above, he is also referring to charge Exh.4 where the first paragraph relates to the case against accused Nos. 1 & 2. The said paragraph clearly specifies the charge to be that when the scooter in question was intercepted it was containing 910 grams of brown sugar valued at Rs. 50,000/- approximately and that is how they have committed the offence under the said Act couple with offence under Bombay Prohibition Act. The charge is clearly, therefore, pertaining to their possessing without any authority or permit Narcotic to the extent of aforesaid quantity. It is immaterial, therefore, as to whether the source of the Narcotic is brought on record and how accused Nos.1 and 2 game into possession of Narcotic which the prosecution has failed to establish. The reason is that the offence is proved the moment illegal possession of Narcotic is established qua any accused. 22. In the charge Exh. 4, the learned Trial Judge has very carefully concentrated on the requirement of each of the offences. As stated above, for accused Nos. The reason is that the offence is proved the moment illegal possession of Narcotic is established qua any accused. 22. In the charge Exh. 4, the learned Trial Judge has very carefully concentrated on the requirement of each of the offences. As stated above, for accused Nos. I & 2 he has concentrated on the aspect of possession and in para 2 thereof, he has concentrated in respect of accused No. 3 having indulged into trafficking of Narcotic and that no doubt, he has done, according to the prosecution, by giving the aforesaid quantity of Narcotic to accused Nos.] and 2. The prosecution having failed to make out its case about accused No. 3 having thus indulged in the aforesaid alleged activity, the result is his acquittal. As against that, accused Nos.1 and 2 having been found in possession, we have to examine the result thereof and the consequences of it in light of Section 54. For this purpose, the learned APP Mr. Shelat is relying on a decision reported in AIR 1973 SC 2309 which is a case under Opium Act, 1878. In that Act, there is Section 10 which gives rise to a presumption and therefore, the learned Judges of the Supreme Court have categorically held that once a presumption is arisen against the accused and in favour of the prosecution, it is not necessary for the latter to establish conscious possession. This has been further discussed in para 12 thereof, where after discussing various submissions and authorities, it has been clearly held that in view of the presumption, there is no requirement of element in connection with the possession and whether it is conscious or not, if the presumption operates, the consequence will follow. 23. We are conscious of the fact that Section 54 in the instant case, which is almost on the same line as Section 10 of the Opium Act which raises a presumption which is rebut table in nature, clearly provides that the possession is required to be satisfactorily explained by the accused. If that be so, naturally, it would be that the presumption is rebutted. In light of this provision of Section 54, if we turn to the record of the Trial Court, the explanation required to be given by accused Nos.1 and 2 to come out of the rigour of Section 54 is totally absent. Their stand is of total denial. If that be so, naturally, it would be that the presumption is rebutted. In light of this provision of Section 54, if we turn to the record of the Trial Court, the explanation required to be given by accused Nos.1 and 2 to come out of the rigour of Section 54 is totally absent. Their stand is of total denial. They have maintained persistently that they have nothing to do with the scooter; that they were in Ravi Guest House and that they have been wrongly implicated only because they are from Kukarwada. In this view of the matter, when there is no effort whatsoever to render any explanation about the possession, there is hardly any question of considering any such material with regard to the aforesaid provision of Section 54. 24. The learned Advocates appearing for the appellants had pointed out that the prosecution has failed to satisfactorily establish the manner in which article was seized. According to the prosecution, the article was kept in safe custody, thereafter, forwarded to the Forensic Science Laboratory and finally produced before the Court. The original papers that are before us indicate that on 5.2.1988 that is the date of the seizure, the muddamal was received by the Police Station at Entry No. 11 /88 in its record. Thereafter, on filing of the charge-sheet, it was brought before the Magistrate Court under muddamal pauthi at page 16 of file No. 4 of the Trial Court and there, it was entered in the muddamal register of the JMFC at No. 175/88 on 2.5.1988. The charge-sheet has also been received by the Court of JMFC Visnagar on the date. Thereafter, it came to be produced before the learned Sessions Judge when committal order came to be passed on 10.6.1988. There is an entry bearing No. 67/88 dated 21.6.1988 of the Sessions Court and accordingly, the muddamal was received by it along with the committal orders and papers on that day and it was so entered. 25. The muddamal article namely brown sugar weighs about 910 grams. From that about 10 grams were separated for being sent to Forensic Science Laboratory. No doubt, the messenger, who took the material, has not been examined. But the Forensic Science Laboratory's Report which has been produced before the Trial Court has been admitted in evidence as per Section 293 of Cr.P.C. and it is given Exh.18 and Exh.19. From that about 10 grams were separated for being sent to Forensic Science Laboratory. No doubt, the messenger, who took the material, has not been examined. But the Forensic Science Laboratory's Report which has been produced before the Trial Court has been admitted in evidence as per Section 293 of Cr.P.C. and it is given Exh.18 and Exh.19. Exh.18 clearly refers to the fact that a sealed packet bearing the seal of P.I. of Visnagar was received and on the reverse side of it, it is found that the sealing was dated 5.2.1988 and it had slips bearing the signatures of panchas and names are also given. No doubt, so far as punch No. 1 is concerned, his name is kept blank and his father's name and surname are given - they are Narjibhai Desai. Once documents Exhs.18 and 19 are allowed to go in under Section 293 in the aforesaid manner, it is too late for the defence now to make a grievance that the link is not established. Had they chosen to raise this dispute before the Trial Court, the prosecution would have been able to meet with it. Having failed to do so, merely because the messenger carrying the passage has not been examined or the manner and method of dispatch and delivery of the sample is not brought on record that cannot be permitted to be used against the prosecution. 26. It was further urged that in the report of the Forensic Science Laboratory, there was a mention as to the weight of the sample received by it. It is falling short by about 1.88 grams. The panchnanra Exh.12, however, refers to the weight of the sample being approximate. Secondly, we should not forget that this was done almost on the road and with the help of whatever scales and weighing equipment that they had available at the relevant time. The weighing machine of the F.S.L. would be a scientific one, that too, under laboratory condition. Therefore, it would be running exactly into four digits after decimal point. In our opinion, therefore, this discrepancy also does not help the defence. The weighing machine of the F.S.L. would be a scientific one, that too, under laboratory condition. Therefore, it would be running exactly into four digits after decimal point. In our opinion, therefore, this discrepancy also does not help the defence. In support of the aforesaid submission about handling of the muddamal article, reliance has been placed by the learned Advocates for the appellant on a decision reported in Judgment Today 1993(4) SC 549 which is about there being delay of production of muddamal in the Court after 3 months. This decision does not help the defence, in view of the aforesaid discussion. 27. All told, therefore, so far as accused Nos.1 and 2 are concerned, we are satisfied that the order by the Trial Court convicting them is very much justified and it is in accordance with the evidence on record and is also in accordance with law. The net result, therefore, is that so far as appellant No. 2 i.e. original accused No. 3 of appeal No. 945 is concerned, the appeal is allowed. The order convicting him is set aside and he be set at liberty forthwith, if not required in any other case. Appeal No. 945 for appellant No. 1, is dismissed. Appeal No. 945 of 1988 is also dismissed. Appeals dismissed.