JUDGMENT (ORAL) A.P. Shah, J. - Original accused NO.1 Peter Endy, a Nigerian National, has filed this appeal challenging the order passed by the Special Judge, NDPS Court, Mapusa, convicting the said Peter Endy under Section 21 of the NDPS Act and sentencing him to undergo R.I. for a term of 10 years and. also to pay a fine of one lakh rupees and in default to undergo one year R.I. 2. The accused NO.1 alongwith accused No. 2 Charles and accused No.3 Gloria, a Nigerian couple, were prosecuted by the State through the P.S.I. Fabian D'Souza, Assistant to the AntiNarcotic Cell, Panaji, under the NDPS Act. Briefly, the prosecution case is that on December 6,1991, the accused No. 1 was appreheded by the police raiding party consisting of P.S.I. D'Souza, Superintendent of Police A.K.Singh and other police staff members besides two panch witnesses Alfred Vaz and Sadguru Parab, near Casino Hotel at Porvorim for having been found in possession of some narcotic drugs. In this regard, a separate case was filed against the accused No.1 being Special Criminal Case No.22 of 1992, in which he was convicted under Section 27 of the NDPS Act for possession of a small quantity of morphine for personal consumption. During the course of his interrogation in the said case: accused no. I had disclosed that he was staying in Flat No. A 2 on the ground floor at St. Anthony's Apartment where he had kept some more drugs. 3. Pursuant to the said information, the police raiding party headed by A.K. Singh alongwith aforesaid two panch witnesses Alfred Vaz and Sadguru Parab proceeded alongwith the accused No.1 to his flat. On reaching his flat, the accused No. 1 knocked the door in response to which the accused No.3 opened the door and on entering into the house, it was found by the raiding party that the accused No. 2 was sitting in the hall. Then P.S.I. D'Souza informed the accused No.3 that they would like to conduct the search of the house as they had information that the drugs were concealed in the house and that if they got any drugs she may produce before the police raiding party. Then P.S.I. D'Souza informed the accused No.3 that they would like to conduct the search of the house as they had information that the drugs were concealed in the house and that if they got any drugs she may produce before the police raiding party. Thereupon the accused No.3 took the raiding party and the panches to a bedroom lying adjacent to the kitchen where she removed a blue coloured polythene bag from another bag and handed it over to the P.S.I. D'Souza, who opened it and found therein "ix transparent polythene packets containing 9.7 gms. Of Browri Sugar and 7 packets of white powder commonly known as cocaine, which was found weighing 8 gms. 4. P.S.I. D'Souza then took separately samples of Brown Sugar and Cocaine and put them in envelopes, which were packed and sealed. The remanants of the drugs were put in two separate envelopes and the same were packed and sealed. The blue coloured plastic bag from which the packets of contraband was also attached and was put in an envelope packed and sealed. During the personal search of accused No.2 cash of Rs. 12,000/- was found in his pocket and the same was also attached. The passports of the accused were also attached. The P.S.I. D'Souza then filed his complaint dated December 6, 1991 at Betim Police Station besides forwarding the drugs for chemical analysis and arrested the accused. The P.S.I. D'Souza also recorded the statements of the witnesses and concluded the investigation and on receipt of the Chemical Analyser's report filed the chargesheet against the three accused under Section 29 read with Section 21 of the NDPS Act. 5. All the accused pleaded not guilty and claimed to be tried. The accused No.1 denied the charge claiming that he was falsely implicated. The accused Nos. 2 and 3 had taken a defente in the cross-examination of the prosecution witnesses as well as in their statements recorded under Section 313 Cr.P.C. that the accused No.2 normally resides at Dharwad in Karnataka and not in Goa and he was not residing in the flat and " that on the fateful night, the accused Nos.2 and 3 alongwith their child came to the flat at about 8:30 p.m. at the request of accused No.1, who had, on the previous day, invited them over for dinner. After some time when the accused No.1 was in the bathroom one John Lobo, who accused No.2, suspected as a drug addict and supplier of drugs, came with an Italian lady to meet accused No.1 and placed a polythene packet in the bag of accused No.1 saying that it was some stuff meant for him (account No. 1). Accused No. l then came put of the bathroom and left the house with John Lobo, and the said Italian girl at about 9.30 p.m. after some time the police raiding party alongwith accused No.1 came and knocked the door in response to which accused No.3 opened the door and she was asked to produce the drugs. Accordingly, accused No.3 led the raiding party towards the bedroom from where the polythene bag containing the drugs left by John Lobo earlier was recovered. 6. During the trial, the prosecution in support of its case examined 5 witnesses. They are P.W.1 Madhukar Malve, who is the Assistant Chemical Analyser attached to Forensic Science Laboratory, Bombay; P.W. 2 Alfted Vaz being one of the two witnesses in the search of the house panchanama; P.W. 3 Chandrakant Usgaonkar being a neighbour of Flat No. A2 in St. Anthony's Apartments, who was examined to establish that the flat was hired by accused No.1 some time in April 1991 and thereafter since October or November, accused Nos. 2 and 3 started staying with accused No.1; P.W. 4 Devdita Fernandes, who gave the flat A 2 to the accused No.1 on leave and licence; and lastly P.W. 4 D'Souza, the complainant-cum-Investigating Officer having filed the complaint as well as the chargesheet against the accused. 7. On appreciation of evidence produced by the prosecution, the learned Special Judge held, inter alia, that the prosecution has failed to establish that the accused Nos. 2 and 3 were in exclusive possession of the bedroom in the flat wherefrom the narcotic drugs were recovered. The learned Special Judge also held that there is no evidence to connect the accused Nos.2 and 3 to the contraband drug except the single act of accused No.3 of removing and handing over the drug to the rightful authority at the request of that authority and that it only indicates that accused No.3 had knowledge of where the drugs were kept and such knowledge cannot impute possession on the part of the accused Nos. 2 and 3. 2 and 3. The learned Special Judge also found the explanation of accused Nos.2 and 3 that the contraband drugs were kept in the flat by John Lobo, who had visited the flat with an Italian girl, believable and satisfactory. In that, view of the matter, the learned Special Judge was pleased to acquit the accused Nos. 2 and 3. However, as far as accused No.1 is concerned, the learned Special Judge held on basis of the, agreement of lease and the certain letters produced by P.W. 4 pevdita Fernandes that the accused No.1 was in possession of the flat wherefrom the contraband were recovered. The learned Special Judge further proceeded to hold that since the accused No.1 was found to be in possession of the entire flat A 2 including the two bedrooms thereat, it should be presumed that he was in possession of the contraband drugs seized from the flat although it was handed over by accused No.3 to P.S.I. The learned Special Judge was further pleased to hold that as the accused No.1 has failed to rebut the presumption drawn against him under Sections 54 and 35 of the NDPS Act by producing material to show that he was not knowingly in possession of contraband drugs, the accused No.1 was liable to be convicted under Section 21 of the NDPS Act. 8. Mr. D'Souza, learned counsel for the accused No.1 strenuously contended that there is no legal evidence to prove that the flat from which the drugs were recovered, was possessed by the accused No.1. Mr. D'Souza. urged that the flat was not shown to be in exclusive possession of accused No.1. Mr. D'Souza further urged that neither the bedroom nor the bag from which the contraband drugs were handed over to the raiding party was in possession of the accused No.1. Mr. D'Souza pointed out that the drugs were admittedly handed over to the Investigating Officer by the accused No.3 from her leisure (leather) bag. Mr. D'Souza urged that it is the categorical case of the prosecution that all the accused were in joint possession of the flat and, therefore, there is no reason for holding that the accused No.1 was in exclusive possession of the flat. Mr. D'Souza brought to our notice that all the three accused were charged for joint possession of the drugs and alternatively accused Nos. Mr. D'Souza brought to our notice that all the three accused were charged for joint possession of the drugs and alternatively accused Nos. 1 and 2 were charged for aiding and abetting the accused No.3. Mr. D'Souza also brought to our notice that the Special Judge in framing question No.3 of the statement recorded under Section 313 of the Cr.P.C. clearly put to accused No.3 that the drugs were removed from her own bag thereby clearly implying that the drugs belonged to accused No.3. Mr. D'Souza complained that the letters allegedly written by the accused No.1 to his landlady and which were heavily relied upon by the Special Judge were not put to the accused No. 1 in his statement under Section 313 of the Cr.P.C. Mr. D'Souza submitted that the conviction of the accused No.1 cannot be sustained in law particularly, when the accused Nos. 2 and 3 are acquitted. Mr. Bhobe, learned Public Prosecutor, in countering the contentions raised by Mr. D'Souza urged that the evidence produced on record has established beyond reasonable doubt the exclusive possession of accused No.1. Mr. Bhobe stated that the Special Judge has rightly drawn presumption against accused No.1 under Section 35 of the NDPS Act and as admittedly, the accused No.1 has failed to bring any material on record to show that he was not knowingly in possession of contraband drugs, no fault can be found with the conviction and sentence recorded by the Special Judge. 9. The short question which falls for our consideration is whether the prosecution has established that at the relevant time the flat was in exclusive possession of the accused No., I. On perusal of the record, it is seen that the prosecution has mainly relied upon the evidence of P.W. 3 Chandrakant Usgaonkar and P.W. 4 Deodita Fernandes for proving that the flat was in possession of accused No.1 P.W.3 Chandrakant is residing in the neighbouring during flat and he has deposed the it accused No.1 is in occupation of flat since April 1991 and from October/November 1991 the flat is being used jointly by accused Nos. 1 to 3. P.W.4 Deodita Fernandes is the landlady. She has stated that the flat was given on lease to accused No.1 by her husband. She has produced on, record the agreement of lease and certain letters allegedly written by the accused No.1 about the arrears of rent. 1 to 3. P.W.4 Deodita Fernandes is the landlady. She has stated that the flat was given on lease to accused No.1 by her husband. She has produced on, record the agreement of lease and certain letters allegedly written by the accused No.1 about the arrears of rent. Although P.W. 4 Deodita's deposition is silent as regards the occupation of the flat by accused Nos. 2 and 3, it is clear that when the raiding party searched the flat, the accused Nos. 2 and 3 were also found in occupation of the flat. Admittedly, it was accused No.3, who took the raiding party to the bedroom adjoining to the kitchen where she removed one blue coloured polythene bag from another bag and handed over to P.S.I. D'Souza. It also appears that the case of the prosecution is that the leisure bag, in which the polythene bag containing the contraband drugs was kept, belonged to accused No.3. Thus, it is clear that at the relevant time, the flat was in joint occupation of the accused Nos. 1 to 3. On perusal of the charge Exhibit No.3, it is seen that the prosecution case in the first instance was that all the three accused were in joint possession of the arugsand alternatively accused Nos. 1 and 2 were charged for abetting and being party to criminal conspiracy for possession of drugs. Thus it was not case of the prosecution that the flat was in exclusive possession of the accused No.1. 10. Turning now to the examination of the accused No. 3 under Section 313, it is seen that the case put to the said accused was that the contraband drugs were removed by the accused No.3 from her leisure bag and were handed over to the P.S.I. D'Souza. Question No. 3, which was put to accused No.3, and whiCh is material for .our. purposes reads as follows: "Q. 3:- It is in evidence that you the accused No.3 took the P.S.L D'Souza, P.W.5 the lady P.S.I. Sawant and constable K.G. Dessai and two panchas to the bedroom lying adjacent to the kitchen where you have removed a blue colour plaStic polythene bag from your leisure bag and handed over to the P.S.I. D'Souza who on opening the same found that there were six polythene packets all containing brown powder beside seven transparent packets containing white powder i.e. brown sugar and cocaine. What do you have to say?" Thus, it is clearly seen that the prosecution case was that the flat was in joint possession of accused Nos. 1 to 3 and it was accused No. 3at whose instance the contraband drugs were recovered. 11. On careful scrutiny of the record, it is also seen that the prosecution has not conclusively established that the flat was in possession of accused No.1. It is true that the agreement of lease is produced on record alongwith the letters allegedly written by the accused No.1, but the said letters, which were relied upon by the learned Judge, were not even put to the accused No.1 while recording his statement under Section 313. P.W. Devdita has admitted that the 'C' Form was not issued to the accused No.1, which creates some doubt about the prosecution case. In any event, the prosecution itself has all-along maintained that the flat was in joint occupation of the accused Nos. 1 to 3. The accused No.3 was responsible for recovery of the drugs, which were found in a bag belonging to the accused No.3. In these circumstances, we find ourselves unable to agree with the learned Special Judge that the flat was in exclusive possession of the accused NO.1 and in that view of the matter, the provisions of Section 35 read with Section 34 cannot be invoked for raising a presumption against the accused No. 1. In our opinion, the prosecution has failed to establish its case against the accused No.1 beyond reasonable doubt. 12. In the result, the appeal succeeds. The judgment and order passed by the Special Judge, NDPS Court, Mapusa, in Special Criminal Case No. 61 of 1992 is quashed and set aside. The accused shall be set free, if not required in any other case. Appeal allowed.