JUDGMENT - M.L. DUDHAT, J.:---This criminal appeal is filed against the conviction and sentence dated June 13, 1994 passed by the Special Court for the N.D.P.S., Greater Bombay, in N.D.P.S. Special Case No. 188 of 1987. The only important question in this case which is to be decided is as to whether in the raid carried out on September 8, 1986 the accused was in conscious possession of the contraband goods which were subsequently recovered in a concealed state on the loft. A few facts which are material for disposing of this appeal are as under : It is the prosecution case that on September 8, 1986 Ramakant Pimple (P.W.1) A.P.I. attached to Vakola Police Station, then attached to C.B. Control Drug Officer, C.I.D., was on duty from 9 a.m. to 9 p.m. While he was patrolling at 10.45 a.m. at Nagpada, Maulana Azad Road, accompanied by S.I. Patel, S.I. Kedar, P.C. 18282 and H.C. 13376, he received an information at about 11.30 a.m. from the informant to the effect that narcotic substance is stored in Room No. 7, Haji Kasam Chawl, Chamda Galli, Nagpada. Thereupon this police officer along with the aforesaid other police personnel and two panchas went to Room No. 7, Haji Kasam Chawl, Chamda Galli, Nagpada. It is the case of the prosecution that when the door was knocked present appellant, who gave his name as Sajid Khan, opened the door. Thereafter this witness Ramakant Pimple (P.W.1) disclosed his identity and the purpose of visiting the said room. The present appellant, original accused, agreed to the said search. During the search of the room, which is about 8 x 10 they saw a steel cot lying in one corner of the room and one person was sitting on that cot who gave his name as Mansur Noor Khan, who was subsequently made accused No. 2. When the police searched the whole room they found nothing and thereafter they decided to search the loft which was in the room. A wooden ladder was also available there and with the help of the same they climed the loft. The said loft was also measuring 8 x 10. In the search taken by the police they found that a wooden cabinet was attached to the entrance door containing a specific mark. Police suspected and searched the remaining wooden flap. Thereupon they found four rexine bags. The said loft was also measuring 8 x 10. In the search taken by the police they found that a wooden cabinet was attached to the entrance door containing a specific mark. Police suspected and searched the remaining wooden flap. Thereupon they found four rexine bags. The cabinet also contained the weight balance and measuring weights. The police party opened all the four rexine bags which were found to contain semi-liquid substance. The said substance was blackish in colour. The said substance was smelt by the police party and thereupon they came to the conclusion that the said substance was opium. Thereafter a polythene bag was found to contain chocolate coloured substance and on smelling the same the police party came to the conclusion that the said substance was Charas or similar substance like Charas. Each rexine bag together with the substance in it weighed about 5 kg. All the four rexine bags weighed about 20 kgs. and the polythene bag which contained a slab of Charas upon weighing weighed 500 gms. Thereafter the investigating party collected 10 gms. of opium like substance from each of the rexine bag as sample and also took out 10 gms. of substance from the polythene bag. Thereafter the four rexine bags and a polythene bag was each packed in a paper separately and was also sealed on the spot. The five samples were also sealed. All the said packets including that of samples were sealed, fixed with lables containing signatures of the panchas and the four rexine bags were marked as A, B, C and D. The samples taken from these bags were marked as A1, B1, C1 and D1. The polythene bag containing Charas like substance was marked as E and the sample taken from this bag was marked as E1. Thereafter the panchanama was made and then the police party along with the accused proceeded to the office of C.B. Drug Control, C.I.D., Bombay along with the Muddemal where Ramakant Pimple (P.W.1) gave a complaint to P.S.I. Kesarkar who took the same on a typewriter. Thereafter the said samples were sent to the Chemical Analyser and the Chemical Analyser, vide his report at Exh. 34, opined that sample Nos. 1 to 4 contained opium of 3.2%, 2.4%, 2.4% and 2% of Morphine respectively. Charas was detected in sample No. 5. 2. Thereafter the said samples were sent to the Chemical Analyser and the Chemical Analyser, vide his report at Exh. 34, opined that sample Nos. 1 to 4 contained opium of 3.2%, 2.4%, 2.4% and 2% of Morphine respectively. Charas was detected in sample No. 5. 2. On the basis of the aforesaid facts accused was prosecuted for commission of offence under sections 8(c) read with section 21 of the N.D.P.S. Act, 1985 and also under sections 8(c) read with 21 and 29 of the N.D.P.S. Act, 1985. The accused was also charged for commission of offence of conspiracy with accused No. 2, who subsequently absconded. It was contended on behalf of the prosecution that accused No. 1 is guilty of offences punishable under the N.D.P.S. Act and, therefore, should be convicted. The defence of the accused was that of total denial. It is after scanning the oral as well as the documentary evidence the trial Court by its judgment dated June 13, 1994 convicted the accused for the offences punishable under section 8(c) read with section 21 of the N.D.P.S. Act, 1985 and sentenced him to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 1,00,000/- in default of which the accused was sentenced to undergo further rigorous imprisonment for a period of six more months. The accused was given the benefit of set off for the period already undergone by him in imprisonment. The accused was, however, acquitted of the charges under section 8(c) read with sections 21 and 29 of the N.D.P.S. Act, 1985. 3. Mr. Ghare, the learned Counsel appearing on behalf of the appellant, contended that the conviction and sentence passed by the trial Court is liable to be set aside as the prosecution has failed to prove the conscious possession of the contraband goods by the appellant. It was also contended on behalf of the appellant that the conviction and sentence is also liable to be struck down on the ground that the mandatory provisions of the N.D.P.S. Act, 1985 were not followed, more particulary the mandate given by sections 41 and 42 of the N.D.P.S. Act. As against this, Mr. It was also contended on behalf of the appellant that the conviction and sentence is also liable to be struck down on the ground that the mandatory provisions of the N.D.P.S. Act, 1985 were not followed, more particulary the mandate given by sections 41 and 42 of the N.D.P.S. Act. As against this, Mr. Vaidya, the learned Counsel appearing on behalf of the prosectuion, contended that the trial Court was right in convicting the accused as he was in possession of the room which was raided and from where contraband goods were seized. 4. As pointed out earlier the only disputed question to be decided by this Court is as to whether the contraband goods which were found on the date of the incident were in conscious possession of the present appellant-accused No. 1. In order to support his contention Mr. Ghare for the appellant pointed out that in this case the prosecution has virtually led no evidence to establish the nexus between the appellant and the contraband goods found on the loft. He further contended that on the date of the incident when the police party raided the concerned Room No. 7, Haji Kasam Chawl, Chamda Galli, Nagpada, according to P.W. 1 and other witnesses, the door was opened by the present appellant. It is also the case of the witnesses that accused No. 2, who subsequently absconded, was sitting on a cot inside the room. It is the case of the prosecution that since they did not find anything in the room, they decided to go on the loft by climbing the ladder and on the loft, in a concealed state, they found the contraband goods in question. Except this evidence there is no cogent evidence led by the prosecution to show that it is only the present appellant-accused No. 1 who was in conscious possession of the said contraband goods. According to our opinion, this argument assumes importance from the fact that the contraband goods were not found in the room but were found on the loft in concealed state. Further it is also an admitted position that accused No. 2-Mansur Noor Khan, who subsequently absconded while on bail, was present in Room No. 7 while the same was being raided. Further it is also an admitted position that accused No. 2-Mansur Noor Khan, who subsequently absconded while on bail, was present in Room No. 7 while the same was being raided. The prosecution has also not placed any evidence on record as to how Mansur Noor Khan was not concerned with the contraband goods at all, especially in view of the fact that it is the prosecution case that accused No. 1 and 2 have conspired the offence. In these circumstances it is very difficult to come to the conclusion that it is accused No. 1-appellant who was in conscious possession of the contraband goods. Further, it is the prosecutions case that in fact the room in question was owned by Hazi-Ul-Rehman and that the said Hazi-Ul-Rehman has left Bombay for Dubai. The proseuction has also not produced any evidence to show that the Present appellant was in possession of the said room as a tenant or otherwise. The prosecution has also not produced any evidence as to who was staying or occupying the said room. It is in this background we have to see as to whether we can come to inescapable conclusion that the contraband goods which were found in a concealed state on the loft were in conscious possession of the appellant-accused No. 1. According to our opinion, it is difficult to arrive at such a conclusion as there is no cogent evidence led by the prosecution to show that it is accused No. 1-appellant who was in possession of the room, in any capacity as a tenant or otherwise, and therefore, even presuming for a while that on the date of the raid the accused opened the door and was present in the room, still, the circumstances mentioned above do not show that it is only the appellant-accused No. 1 and nobody else who was in conscious possession of the contraband goods. Therefore, we come to the conclusion that the prosecution has failed to prove the nexus between the appellant and the contraband goods. 5. At this stage we would like to refer to certain circumstances on the basis of which the accused-appellant was convicted by the trial Court. Therefore, we come to the conclusion that the prosecution has failed to prove the nexus between the appellant and the contraband goods. 5. At this stage we would like to refer to certain circumstances on the basis of which the accused-appellant was convicted by the trial Court. It is the prosecution case that after the panchanama was drawn and signed by the panchas, the accused also signed the panchanama and, therefore, the trial Court observed as under : "The fact that the accused No. 1 as present acted as though he was in possession of all which is recovered from the loft as a person shall not allow a raiding party to take the search of the room if he is not the owner of it or when he is not in the occupation or though in occupation but if he is not in possession of articles. Presenting the room for two reasons i.e. first in order to safeguard his own interest and because there is possibility of his being implicated with the articles which may be so recovred and secondly there is possibility that the real owner or occupier may throw responsibility of possession on the person so present. No representation of any kind is made by accused No. 1 so also he has not asked any question in respect of his signature appearing on the panchanama Exh. 18. It does not stand to reason because the Court is at liberty to come to the conclusion from not only on the basis of the evidence, but also on the basis of material which may be placed before the Court and the signature although not proved by the prosecution, but even otherwise if not done so his signature remains on the document which is produced by the prosecution and in ordinary circumstaces the accused is positively burdened either to discard the material or to suggest he was compelled to sign the same, but nothing of this sort in this regard is challenged or explained on record and therefore, the signature of accused No. 1 appearing on the panachanama, Exh. 18, goes unchallenged." We have quoted the aforesaid portion of the judgment to show as to how the learned Judge came to the conclusion that the appellant was in conscious possession of the narcotics while convicting the accused. 18, goes unchallenged." We have quoted the aforesaid portion of the judgment to show as to how the learned Judge came to the conclusion that the appellant was in conscious possession of the narcotics while convicting the accused. It appears that merely because there is a signature on the panchanama of the accused, which is not proved by the prosecution, the learned Judge came to the conclusion that the appellant-accused No. 1 was in conscious possession of the room. It is surprising that though the signature is not proved, the learned Judge has done the job of comparing the signature with those appearing on other documents to come to this conclusion. According to us, the conclusion of the learned trial Judge is based on mere conjectures and surmises and is completely unwarranted and no Criminal Court should indulge in an exercise of this kind. Firstly, the prosecution has not proved the panchanama which is at Exh. 18. The said panchanama is dated June 13, 1994 i.e. after about four months out of which about one month was summer vacation. The way in which the judgment was procrastinated, according to Mr. Ghare, the same is in breach of section 353 of the Code of Criminal Procedure. According to our opinon the trial Court could have either given the judgment immediately after the arguments were concluded or could have fixed a particular date for the pronouncement of the judgment so as to see that the accused is not put to any harassment. We hoped the trial Court will decide criminal cases keeping the spirit of section 353 of the Code of Criminal Procedure in future. This criminal appeal is allowed. The conviction and sentence passed by the Special Court for N.D.P.S., Greater Bombay, in N.D.P.S. Special Case No. 188 of 1987 is set aside. The appellant be set free forthwith unless he is required in any other case. Fine, if paid, is directed to be refunded to the appellant. Writ to go down forthwith. Appeal allowed. *****