G. S. N. TRIPATHI, J. Special Judge (Sessions Judge), Almora in S. T. No. 1 of 1993, State v. Begnis Lionel, convicted the accused under Section 20 (b) (ii) of NDPS Act, 1985 and sentenced him to undergo ten years R. I. and to pay a fine of rupees one lac. On failure to pay the fine, further one years R. I. was provided. 2. The prosecution case, in brief, stated on the basis of recovery memo in the shape of F. I. R. lodged by Sri R. K. Joshi (PW 4) S. P. Narcotics Bureau, New Delhi at Police Station Kotwali, Almora on 19-10-1992 at 20. 15 p. m. , after covering a distance of eight kilometres. Sri Joahi has alleged that on that day he had come from Delhi in connection with the destruction of illicit cannibis plants launched by his department. The accused, a foreigner, was found in occupation of a room rented out to him. From the search of his room 47 gms. of Charas was recovered. The articles were sealed on the spot. A memo was prepared. The accused refused to take any personal search of the recovery party and in fact admitted the guilt; Mr. Jasbir Chand took (sic) to Police Station alongwith the goods sealed OR the spot and recovery memo, in the shape of Panchayatnama and other documents. The accused was brought to the Police Station and lodged in jail in due course. 3. After usual investigation the charge-sheet was laid by the police. 4. The prosecution examined Dham Singh Jithani (PW 1 ). He was Naib Tahsildar in the Revenue Department. He was instructed by S. D. M. to help the party of Narcotic Officer, who had come for destruction of illicit cannibis. He, accordingly, joined them. Near the house of Ranjeet Singh one foreigner (accused) was found in intoxicated state. Sri R. K. Joshi (PW 4) talked to him. He said that he was a habitual user of Charas and he had kept some Charas stored in his room also. The search was taken in his presence and recovery effected. A memo was prepared. He is witness to that. 5. Mohan Singh (PW 2), the brother of the landlord, Ranjeet Singh has said that he was alongwith the party of Narcotic Officer. The accused resided in the house of his brother Ranjeet Singh. The search was taken in his presence and recovery effected. A memo was prepared. He is witness to that. 5. Mohan Singh (PW 2), the brother of the landlord, Ranjeet Singh has said that he was alongwith the party of Narcotic Officer. The accused resided in the house of his brother Ranjeet Singh. The house in fact belonged to his father. The party of the Narcotic Officers took him to the Police Station alongwith the accused. There the document was prepared. He wag declared hostile by the prosecutor and cross- examined. 6. R. K. Joshi (PW 4), Superintendent, Narcotics Department, New Delhi has narrated the story as stated in the F. I. R. He has deposed that 47 gms. of Charas was recovered by him at the behest of the accused. Some pieces were sent to the Chemical Examiner and report in positive was received. The documents were proved by him. 7. Kishan Lal (PW 3) is Head Constable. He has proved the F. I. R. (Ex. Ka-2) prepared by him. 8. The accused in his statement under Section 313, Cr. P. C. has said that he was not found in suspicious condition by Mr. Joshi. He asked about his name and told his mission. At that time the accused was outside his room. Sri R. K. Joshi (PW 4) did not take any search of the room which was in his possession at that time but he took the search of the room occu pied by others. The there of recovery of (Hashish) Charas is denied. The memo was not prepared at the spot. But he admits that he was arrested from near the room he was occupying. The Officers of Narcotics Depart ment mis behaved his girl friend near his room, when the accused objected, they falsely implicated him in this case. He alongwith Miss Orley and Andrew was residing in the eastern room of Ranjeet Singh. No search of this room was taken, rather search of western, room was taken. His signatures were forcibly obtained on blank papers. 9. The accused examined Head Constable L. I. U. , Almora, who wrote the documents (Exs. Kha-1 to Kha- 6) showing that in the house of Ranjeet Singh several foreigners were residing. 10. After examination of the entire evidence and circumstances, the learned Lower Court convicted the accused and sentenced him as noted above. 11. 9. The accused examined Head Constable L. I. U. , Almora, who wrote the documents (Exs. Kha-1 to Kha- 6) showing that in the house of Ranjeet Singh several foreigners were residing. 10. After examination of the entire evidence and circumstances, the learned Lower Court convicted the accused and sentenced him as noted above. 11. Feeling aggrieved, this appeal has been filed by the accused. 12. I have heard the learned Counsel for the parties at stretch and gone through the record. I find that there is absolutely no force in this appeal and it deserves to be dismissed. 13. From the documents (Exs. Kha-1 to Kha-6), it appears that in the house of Ranjeet Singh several foreigners were residing. Miss Orley holding an Israil Passport and proclaiming as a national of Israil, arrived in India on 21-7-1992 and in this house hotel on 5-10-1992 (Ex. Kha-1) Mr. Pattrik, a British National, arrieved in India on 3-10-1992 and in this hotel on 7-10-1992 (Ex. Kha-2), Mr. Joseph, a British National arrived in India on 30-10-1992 and in this Hotel on 7-10-1992 (Ex. Kha-3), Mr. Briyan another British National also arrived in India on 3-10-1992 and in this Hotel on 7-10-1992 (Ex. Kha-4 ). The accused Mr. Begnis Lionel, a French National arrived in India on 9-12-1991 and in this Hotel on 19-3- 1992 (Ex. Kha-5), Mr. Audrey, a Swiss National arrived in India on 26-7-1992 and in this Hotel on 3-10- 1992 (Ex. Kha-6 ). In all these documents Mohan Singh (PW 2) has signed as a landlord. 14. An analysis of the aforesaid documents would show that different nationals arrived on different dates in this hotel. All of them arrived later than the accused. The accused was the oldest occupant of this hotel i. e. from 19-3-1992. Other persons did not belong to his country. No prior intimation is alleged or proved between the accused and other persons. So it is difficult to believe that all these persons were occupying the same room, at the accused himself. Miss Orley and Israili National is the person with whom, accordingly to the accused, the Officials of the Narcotics Department mis behaved and when the accused protested, they falsely implicated him, This lady came to this hotel on 5-10-1992 whereas the accused had arrived there on 19-3-1992; whereas the accused arrived from Pokhra (Nepal), Miss Orley arrived from Nainital. Miss Orley and Israili National is the person with whom, accordingly to the accused, the Officials of the Narcotics Department mis behaved and when the accused protested, they falsely implicated him, This lady came to this hotel on 5-10-1992 whereas the accused had arrived there on 19-3-1992; whereas the accused arrived from Pokhra (Nepal), Miss Orley arrived from Nainital. So the arguments advanced by the learned Counsel for the appellant that the exclusive possession of the room by the accused is not established, rather it is proved that other nationals co-shared the room with the accused and hence the recovery of Hashish from the room of the accused will not lead us to conclude that this room was in exclusive possession of the accused only can not be accepted. This argument is totally unfounded. It is also unbelievable that the officers of the Narcotics Depart ment, who had come to destroy illicit Cannibis, would indulge in mis-behaving with Miss Orley and on protest and they would falsely implicate the accused. Mr. Joshi (PW 4) is a very Senior Officer of the department. In his presence or in his knowledge the mis-behaviour by his officials is difficult to believe. Secondly, it is equally difficult to believe that he would defend his officer in such a way by implicating an innocent person. So I reject the defence version as advanced by the learned Counsel for the accused. 15. The rejection of the defence version does not help the prosecution in any way, because it has to prove its own case and it has to stand on its own legs. So I propose to enter into the evidence on record. 16. Sri G. S. Chaturvedi, learned Counsel has not challenged the recovery of Hashish from the room occupied by the accused along with others. He does not challenge the fact that it was Hashish which was recovered from that place. What he wants to say is that the room was not exclusively occupied by the accused. I have already observed that in the circumstances of the case, it is difficult to believe that the accused would permit outsiders without having any prior acquintance with them, to co-share a room which he was already occupying since March 9, 1992 (Ex. Kha-5 ). 17. Apart from it there is statement of Mohan Singh (PW 2) who has signed all the documents (Exs. Kha-5 ). 17. Apart from it there is statement of Mohan Singh (PW 2) who has signed all the documents (Exs. Kha- 1 to Kha-6) as a landlord, it appears that when he inducted the accused, he represented himself as a landlord and allowed the accused to occupy a room on 19-3-1992. Therefore, it was not essential for the prosecution to examine Ranjeet Singh to prove that the accused was his tenant because for all practical purposes Mohan Singh (PW 2) was the landlord. 18. There might be some mutual understanding between the brothers Mohan Singh and Ranjeet Singh with which we are not very much concerned. This witness has said in Para 2 of statement-in-chief that the accused was occupying the house belonging to his brother. This house belonged to the father of Mohan Singh and Ranjeet Singh. This part of his statement has not been challenged. Since he turned hostile, therefore, he was declared as such and cross-examined by the parties including the prosecutor. But even this portion of hostile testimony which goes unchallenged can be accepted to prove that the accused was occupying a portion of the house belonging to Ranjeet Singh. 19. In the site-plan (Ex. Ka-5) that room has been shown which lies to the South of the Gali. From this place recovery was allegedly effected. Therefore, when he says that this accused was residing in the house of Ranjeet Singh, he means to say that he was occupying the room in the house of Ranjeet Singh because it is nobodys case that the entire house was in posses sion of this accused. Moreover, Exs. Kha- 1 to K. ha-6 also show that apart from the accused, five other persons were also occupying the house. 20. Dham Singh Aithani (PW 1) has said that Mr. Joshi found the accused in intoxicated state and he talked him and then on his pointing out the recovery was effected, In para 8 of his statement he says that the accused was speaking all along in English (although he is a French National ). But he was not totally intoxicated. The room from which the recovery was effected was in the exclusive possession of the accused. No other foreigner was residing there. It is wrong to say that apart from the accused Miss Orley andrey and others were also residing the same room. But he was not totally intoxicated. The room from which the recovery was effected was in the exclusive possession of the accused. No other foreigner was residing there. It is wrong to say that apart from the accused Miss Orley andrey and others were also residing the same room. In fact they were residing in different room in the same house. So from his statement also, the exclusive possession of the room by the accused alone is clearly established. 21. The star witness of the prosecution is Sri R. K. Joshi (PW 4) Superintendent, Narcotics Bureau, New Delhi. He has also deposed that the recovery was effected from the room occupied by the accused. In Para 7 he says that he recorded a short statement of the accused in English. The learned Counsel cross- examining this witness went the far off the mark when he suggested in Para 15 that his team had not come to the place for destruction of Narcotic Crops. The suggestion has been repudiated rightly by the witness. In para 6 he has clearly stated that the room from which the recovery was effected was not occupied by any other foreigner, rather on that occasion even in adjoining rooms no foreigner was visible. It is wrong to say that at the time of recovery other foreigners including a lady were also occupying this room. The recovery was effected from the rack found in the room of the accused. Since the accused alone was occupying this room, therefore, all the goods would be deemed to belong to him. Regarding the ownership of the rack upon which the disputed article was placed, he has no knowledge. He further says that from the location and existence of goods placed in that room, he concluded that it was in exclusive possession of the accused alone. In para 18 he clearly says that he enquired from the brother of the landlord (Mohan Singh, PW 2) about the occupant of the room. He also testified that the accused was alone and the exclusive occupant of the room. 22. In Para 20 Sri Joshi states that he did not enquire about the residents of the neighbourhood, where five families were residing at some distance. He kept Sri Mohan Singh (landlords brother) as a witness, as no other witness was found near the spot. He also testified that the accused was alone and the exclusive occupant of the room. 22. In Para 20 Sri Joshi states that he did not enquire about the residents of the neighbourhood, where five families were residing at some distance. He kept Sri Mohan Singh (landlords brother) as a witness, as no other witness was found near the spot. This way from the statement of Sri Joshi also it is proved that the room in which the disputed article was kept and from where it was recovered exclusively belonged to the accused. 23. Although I do not want to derive any support from the statement of the accused in the shape of Panchayatnama and recovery memo, as an admission of the accused, I simply wish to mention by way of reference that even the accused has admitted his exclusive possession over the room. 24. At this very spot it is proper to mention that in reply to question No. 5 under Section 313, Cr. P. C. the accused has stated "that Sri Joshi did not take any search of the room which was in my occupation at that time. In reply to question No. 9 again he says, "i was arrested at Kashadevi near a house by Sri Joshi, whose one room I was occupying". This way the accused never disputed that the room from which the recovery was effected, was in his exclusive possession. Of course, later on he developed a theory that he was occupying the room in the eastern side with Miss Orley and Andrey, but I think, this is clearly an after thought. This theory is totally baseless. No reliance can be placed on such a story. If at all there was any truth that the accused was co-sharing this room with others, some positive evidence should have been led by him. His friends, for whose sake he is undergoing trouble in the shape of imprisonment, never come to his rescue although they could do so if there were any truth in the statement of the accused. 25. This way, I record a categorical finding of fact that the room from which the recovery was effected was exclusively occupied by the accused and none else. 26. Some arguments were also advanced regarding the non-compliance of the provisions of Section 50. But I find that there is no base for that. 25. This way, I record a categorical finding of fact that the room from which the recovery was effected was exclusively occupied by the accused and none else. 26. Some arguments were also advanced regarding the non-compliance of the provisions of Section 50. But I find that there is no base for that. Sri Joshi in Para 11 states that ho had no information about the accused before he arrived at the spot. He had nothing to do with the over-stay of foreigners because it was none of his business. He re-iterates this point in Paras 11 and 12 also. So before be started the search, he had no knowledge about the accused having contraband goods by him. Further, he said that he asked the accused that if he so chose he could take the searches of the searching party also, which he declined. The accused read over the recovery memo and gave the statement Ex. Ka-4 in his presence. In fact, it is in his hand-writing, to the effect that "at about 16 hours, Sri R. K. Joshi, Superin tendent, N. C. B. , New Delhi came to my house along with two witnesses. They introduced themselves to me and asked me to give search of my room. I became ready for the same. Before starting search, Superintendent and witness offered their search, which I declined. Then the Superintendent, Sri R. K. Joshi (PW 4) searched my room in presence of me and before the witnesses and recovered 47 gms. (Hashish) Charas from my room. The recovered Charas was seized after drawing samples from it. On being enquired, I said that this recovered Charas I had purchased from Bindsar. I also admitted that I purchased the Hashish from Bindsar at the rate of Rs. 40 per Tola. " This statement further fortifies the statement by Sri Joshi, therefore, the complaint against non-compliance of provisions of Section 50 cannot be upheld 5. 50 can not be said to have been violated, because at no point of time the accused required that he should be taken to some other Gazetted Officer of the department. Mr. Joshi himself was a Gazetted Officer, so he had very authority to take search and as such this complaint is totally mis founded. 27. The allegation that a false complaint on account of enmity was made against the accused cannot be entertained. In fact Mr. Mr. Joshi himself was a Gazetted Officer, so he had very authority to take search and as such this complaint is totally mis founded. 27. The allegation that a false complaint on account of enmity was made against the accused cannot be entertained. In fact Mr. Joshi and his party has absolutely no earlier information about the accused. It was a sudden search. Minor contradictions hear and thereof insignificant value were put to the witnesses. I think they do not go to the root of the case and this fact does not help the accused in any manner whatsoever, 28. Thus, after a careful analysis of the evidence on the record, I find that the prosecution has successfully proved his case against the accused. The appeal has no force. 29. In the result, the appeal is dismissed. The judgment and order passed by the Lower Court is upheld. Appeal dismissed. .