JUDGMENT 1. - The above mentioned two appeals are being decided by this common judgment as they have arisen from the judgment and order dated 15.5.1998 passed by the learned Special Judge, NDPS Act Cases, Jodhpur in Sessions Case No. 4/98, by which he convicted accused appellant Prakash Singh of Appeal No. 406/98 and accused appellant Shyam Sunder Rajoriya of Appeal No. 376/98 for the offence under sections 8/20(8) (ii) of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced each of them to undergo ten years' Rigorous Imprisonment and to pay a fine of Rs. one lac, in default of payment of fine, to further undergo three years Rule. By the same judgment, the learned Special Judge, NDPS Act Cases, Jodhpur acquitted two accused persons, namely, Gopal and Christine Strobel. 2. The facts giving rise to these appeals are as follows :Facts of S.B. Cr. Appeal No. 406/1998 of accused appellant Prakash SinghOn 20.11.1997, PW 10 Bhagwan Singh, SHO, Police Station Jaisalmer received a secret information through Mukhbir early in the morning to the effect that a vehicle, namely, Tata Sumo was standing before the Meru Palace Hotel and in that vehicle, narcotic drugs might be transported and after reducing that information into writing and informing the superior officers, PW 10 Bhagwan Singh alongwith the Preventive Party comprising of himself, PW 12 Vikram Singh, Dy. SP and other police officials and two motbirs, namely, PW 1 Mohan Singh and PW 3 Sawai Singh proceeded towards the spot and reached there, where vehicle `Tata Sumo' bearing No. RJ 01C 3645 was round and on the back seat of that vehicle, one person was sleeping and he was awakened by PW 10 Bhagwan Singh and on being asked, he told his name as Prakash Singh (present accused appellant) and he was asked that his search was to be made and for that he was informed whether he could be searched before the present Gazetted Officer PW 12 Vikram Singh or nearest Magistrate. Upon this, accused appellant gave his consent on Ex. P/1 that PW 12 Vikram Singh could search him. Upon this, accused appellant gave his consent on Ex. P/1 that PW 12 Vikram Singh could search him. Thereafter, accused appellant was searched by PW 10 Bhagwan Singh in presence of PW 12 Vikram Singh and on search, from his both pockets, five packets each containing black substance were recovered and on being assessed, it was found that these packets contained Charas. Thereafter, these packets were weighed and on weighing, their weight was found to be 70 grms. and on being asked whether he possessed any valid license or permit for keeping the Charas, he told that he did not possess any such license. Thus, he committed offence under sections 8/21, 22 and 23 of the NDPS Act. Out of the said 70 grms. Charas, 40 two samples of 30 grms. each were taken for chemical analysis and they were sealed on the spot and marked as S/1 and S/2 and the remaining 10 grams. Charas was also sealed on the spot and marked as `A'. The specimen seals were taken separately on Ex. P/17. The fard of search and seizure Ex. P-2 was prepared by PW 10 Bhagwan Singh on the spot. Thereafter, a regular FIR Ex. P/29 was chalked out and articles seized from the accused appellant were deposited by PW 10 Bhagwan Singh in the Malkhana and they were received by PW 11 Khiyaram. Thereafter, samples were sent for chemical examination to FSL through PW 14 Madho Singh and the receipt of depositing them in the FSL is Ex. P/34. The report of the FSL, Jaipur is Ex.P/33 and from perusing the FSL report Ex. P/33, it appears that on chemical examination, the articles seized were found to be of charas. The accused appellant Prakash Singh was arrested by PW 10 Bhagwan Singh through Ex. P/5. The driver of the vehicle `Tata Sumo' Gopal was also to arrested.Facts of S.B. Cr. Appeal No. 376/1998 pertaining to accused appellant Shyam SunderThe case of the prosecution is that on the same day i.e. on 20.11.1997, the accused appellant Prakash Singh or Appeal No. 406/98 and another accused Gopal informed to PW 10 Bhagwan Singh that they had taken this charas from accused appellant Shyam Sunder of Appeal No. 376/98 and accused Christine Strobel and they were staying in Room No. 10 of Mutual Tourist Bungalow, Jaisaliner and they were also having other contraband charas. Thereafter, PW 10 Bhagwan Singh along with Preventive Party comprising of himself, PW 12 Vikram Singh, Dy.SP and other police officials including PW 9 Shyama and two motbirs PW 2 Ajay Saxena and PW 4 Chandradeep Singh and accused appellant Prakash Singh of Appeal No. 406/98 and accused Gopal reached the Mumal Tourist Bungalow and door was knocked by PW 10 Bhagwan Singh, upon which, present accused appellant Shyam Sunder of Appeal No. 376/98 and one lady Christine Strobel came out and they were told that their search was to be made and for that they were informed by PW 10 Bhagwan Singh that he had with him a Gazetted Officer i.e. PW 12 Vikram Singh and if they wanted, search could be made before PW 12 Vikram Singh or if they wanted a Magistrate could be called. Thereupon, they informed that search could be made in presence of PW 12 Vikram Singh and consent fard was prepared by PW 10 Bhagwan Singh and the same is Ex. P/9. Thereafter, search was made in presence of motbir witnesses PW 2 Ajay Saxena and PW 4 Chandradeep Singh and on the eastern side of the room, there was a bag of accused appellant Shyam Sunder and it was checked and besides that bag, there was a plastic bag and it was opened and on opening, two plastic packets were found and hereafter these two plastic packets were also opened and it was found that hey contained black substance and on being assessed it was found that it vas charas. Thereupon, accused appellant Shyam Sunder and accused Christine Strobel told that these packets were in joint possession of both of them. On being asked whether they possessed any valid licence or permit for keeping the charas, they informed that they did not possess any such valid licence or permit and thus, they committed offence under sections 8/21, 22 and 23 of the NDPS Act. Both the packets were weighed and the weight of one packet was found to be 900 grams and weight of another packet was found to be 820 grams. Thereafter, two samples of 30 grasms. each were taken from each packet and they were sealed on the spot and marked as S/5, S/6, S/7 and S/8 and the remaining Charas of each packet was sealed separately on the spot and marked as `C' and `D'. Thereafter, two samples of 30 grasms. each were taken from each packet and they were sealed on the spot and marked as S/5, S/6, S/7 and S/8 and the remaining Charas of each packet was sealed separately on the spot and marked as `C' and `D'. The fard of search and seizure was prepared by PW 10 Bhagwan Singh on the spot and the same is Ex.P/11. The articles seized were deposited in the Malkhana by PW 10 Bhagwan Singh and they were received by PW 11 Khiyaram. Thereafter, samples were sent for chemical analysis to FSL through PW 14 Madho Singh and the receipt of depositing them in the FSL is Ex. P/34. The report of the FSL is Ex. P/33 and from perusing FSL report Ex. P/33, it appears that on chemical examination, the articles seized were found to be of Charas. The accused appellant Shyam Sunder was arrested by PW 10 Bhagwan Singh through Ex. P/14 and another accused Christine Strobel was arrested through Ex. P/15.After usual investigation, police submitted challan against four persons, namely, Prakash Singh, accused appellant of Appeal No. 406/98, Shyarn Sunder, accused appellant of Appeal No. 376/98, Gopal and Christine Strobel. On 28.1.1998, the learned Special Judge, NDPS Act Cases, Jodhpar framed charges against four accused in the following manner : 1. Accused appellant Prakash Singh of Appeal No. 406/98 u/s 8/20 (B)(11) of NDPS Act. 2. Accused appellant Shyam Sunder of Appeal No. 376/98 u/s 8/20 (B) (11) or 8/20(B) (11) r/w S. 29 of NDPS Act. 3. Accused Gopal u/s 8/20 (B) (11) or 8/20(B) (11) r/w S. 29 of NDPS Act. 4. Accused Christine Strobel u/s 8/20(B) (11) r/w Section 29 of NDPS Act. The charges were read over and explained to the charges and claimed trial.In support of its case. the prosecution examined as many as 15 witnesses and got exhibited several documents. Thereafter, statements of the accused under section 313 Cr.PC. were recorded and some documents were got exhibited in defence. But, no evidence was led in defence by accused. The charges were read over and explained to the charges and claimed trial.In support of its case. the prosecution examined as many as 15 witnesses and got exhibited several documents. Thereafter, statements of the accused under section 313 Cr.PC. were recorded and some documents were got exhibited in defence. But, no evidence was led in defence by accused. After conclusion of the trial, the learned Special Judge, NDPS Act cases, Jodhpur, as already stated above, convicted and sentenced the accused appellants Prakash Singh and Shyam Sunder and acquitted two accused Gopal and Christine Strobel through his judgment and order dated 15.5.1998.Aggrieved from the said judgment and order dated 15.5.1998 passed by the learned Spacial Judge, NDPS Act Cases, the present accused appellants have preferred these appeals.S.B. Cr. Appeal No. 406/98 filed by the accused appellant Prakash Singh. 3. In this appeal, the learned counsel for the accused appellant has raised the following two submissions : 1. That provisions of Section 50 of the NDPS Act have not complied with strictly because now it is well settled that Gazetted Officer should be independent and in the present case, the Gazetted Officer, PW 12 Vikram Singh was Dy. SP and Member of the Preventive Party and therefore, mandatory provisions of Section 50 of the NDPS Act have been violated and thus, whole trial stands vitiated in the manner as the compliance of the mandatory provisions of Section 50 of the NDPS Act in strict sense as warranted by law, has not been made in the present case. Hence, on this ground alone, the accused appellant is entitled to acquittal. 2. That the learned trial court has erred in convicting the accused appellant in absence of production of recovered articles before the court during trial. Hence, on this ground also, the accused appellant is entitled to acquittal. Thus, it is prayed that this appeal be allowed and the accused 1 appellant be acquitted of the charge framed against him. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Act Cases, Jodhpur. 5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. 6. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Act Cases, Jodhpur. 5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. 6. Since the above questions raised by the learned counsel for the accused appellant cannot be answered without discussing the evidence produced by the prosecution therefore, evidence of the present case has to be looked into.Point No. 1 7. So far as the legal position about Section 50 of the NDPS Act is concerned, it has been held by the Hon'ble Supreme Court in so many cases that it is obligatory on the part of the empowered officer to inform the persons to be searched that it ne so requires, he shall be produced before the Gazetted Officer or a Magistrate. Failure to inform the persons to be searched and if such persons so requires, failure to taken him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 of the NDPS Act which is mandatory and thus, it would affect the prosecution case and vitiate the trial. The provision necessarily implies that the officer making search must inform the person, to be searched, of his right to be taken to the nearest Gazetted Officer or to the nearest Magistrate. 8. Thus, it can be said that a bare reading of the provision leaves no doubt that it is the right of the persons to he searched to insist that he be taken without unnecessary delay to the nearest Gazetted Officer of any of the Departments mentioned in Section 42 of the NDPS Act, or to the nearest Magistrate. This is an extremely valuable right which the legislature has clothed him with and has been incorporated in the Act keeping in view the severity of the sentence. A search before a Gazetted Officer or Magistrate would impart more authenticity and credit worthiness to the proceedings otherwise the right would become illusionary. 9. Keeping the above principles in mind, the facts of the present case are being examined. 10. The consent lard, in the present case, is Ex. A search before a Gazetted Officer or Magistrate would impart more authenticity and credit worthiness to the proceedings otherwise the right would become illusionary. 9. Keeping the above principles in mind, the facts of the present case are being examined. 10. The consent lard, in the present case, is Ex. P/1 and motbir witnesses of that fard are PW 1 Mohan Singh and PW 3 Sawai Singh and the person, who conducted the search is PW 10 Bhagwan Singh, SHO and along with him, another person, who was present, was Dy. SP PW 12 Vikram Singh. The material part of Ex. P/1 is as follows : "That accused appellant Prakash Singh was informed and consent ao of taking search either from Gazetted Officer or Magistrate was taken and upon this, accused appellant gave his consent that he could be searched by PW 12 Vikrare Singh, Dy. SP" It may be stated here that in the so-called consent fard Ex. P/1, nowhere Section 50 of the NDPS Act is mentioned. 11. The motbir witness PW 1 Mohan Singh in this respect states that PW 10 Bhagwan Singh introduced PW 12 Vikram Singh with accused appellant and asked the accused appellant that he could be searched by PW 12 Vikram Singh or Magistrate and upon this, accused appellant gave his consent that he could be searched by PW 12 Vikram Singh. 12. PW 3 Sawai Singh, another motbir witness, in this respect states that consent of search was taken by PW 10 Bhagwan Singh in the manner that he could be searched either by Magistrate or Gazetted Officer or present Dy.SP PW 12 Vikram Singh, who himself is a Gazetted Officer. 13. PW 10 Bhagwan Singh, who conducted the search and seizure in the present case, has stated in this respect that accused appellant was asked whether he could be searched by Magistrate or Gazetted Officer and then he told that he could be searched by PW 12 Vikram Singh, Gazetted Officer. 14. PW 12 Vikram Singh in this respect states that PW 10 Bhagwan Singh asked the accused appellant if he wanted Magistrate could be called here of if he liked, he could be searched by the present Gazetted Officer and for that he pointed out towards him. Upon this, accused appellant gave his consent. In his cross-examination. 14. PW 12 Vikram Singh in this respect states that PW 10 Bhagwan Singh asked the accused appellant if he wanted Magistrate could be called here of if he liked, he could be searched by the present Gazetted Officer and for that he pointed out towards him. Upon this, accused appellant gave his consent. In his cross-examination. PW 12 Vikram Singh has admitted that accused appellant Prakash Singh did not give consent in writing and fard of consent ex. P/1 was prepared and his signatures were taken on it. 15. The question that arises for consideration is whether in the above circumstances compliance of Section 50 of the NDPS Act can be said to have been made by the prosecution or not. 16. The position of law has been stated above and apart from this, two decisions of the Hon'ble Supreme Court in this respect may also be referred to here. In K. Mohanan v. State of Kerala, 2000 SCC (Cri) 1228 , it has been 20 held as under : "Narcotic Drugs and Psychotrophic Substances Act, 1985-S. 50-Before subjection a person to search, the officer concerned must inform him of his right to be searched before a gazetted officer or a Magistrate and failure to do so would cause prejudice to such person. Where before conducting the search the police officer concerned merely asking the accused appellant whether he was required to be produced before a gazetted officer or a Magistrate for the purpose of the search but not informing him about his right in that behalf under the law, held, mandatory requirement of S. 50 not satisfied. If he had been told about his right, what would have been the answer given by the accused cannot be gauged at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that S. 50 of the Act was not complied with. In view of non-compliance with S. 50, the evidence of search spoken to by the police officer who had conducted the search cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article." 17. In view of non-compliance with S. 50, the evidence of search spoken to by the police officer who had conducted the search cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article." 17. In Ahmed v. State of Gujarat, JT 2000 (9) SC 416 it has been held as under : "Sections, 50, 41, 42-Compliance-Search taken by a `gazetted Officer'-if the accused still has the right to be informed about his right to be searched before a gazetted officer or magistrate. Accused himself wanting to be searched before gazetted officer or Magistrate-Request declined. Held that there was infraction of Section 50. Even if the officer searching the accused himself is a gazetted officer, right of accused cannot be denied." 18. From perusing the above two rulings of the Hon'ble Supreme Court, it becomes crystal clear that the officer concerned must inform accused of his right to be searched before Gazetted Officer or Magistrate and failure to do so would cause prejudice to such person. Merely asking accused whether he was required to be produced before a Gazetted Officer or a Magistrate for the purpose of the search, but not informing about his right in that behalf under the law, it would mean that mandatory requirement of Section 50 of the NDPS Act has not been satisfied. 19. Looking to the above proposition of law, if the facts of the present case are examined, it can be easily said : 1. That accused appellant was not informed of his right to be searched before a Gazetted Officer or a Magistrate and what has been stated by PW 10 Bhagwan Singh to accused appellant was that he had a Gazetted Officer with him. i.e. PW 12 Vikram Singh and, therefore, whether he wanted to be searched before him or not and upon this, it is stated that he gave his consent. 2. That no fard by which accused appellant was informed about his right, was prepared by PW 10 Bhagwan Singh, as this fact has been admitted by PW 12 Vikram Singh himself that only the signatures of his consent were taken on so called Sahmati fard Ex. P/1, in which there is no mention of Section 50 of the NDPS Act. 20. P/1, in which there is no mention of Section 50 of the NDPS Act. 20. In these circumstances, in the present case, it can be held that the mandatory provisions of Section 50 of the NDPS Act have not been complied with by PW 10 Bhagwan Singh, rather it appears that he performed mere formality by stating that he had alongwith him Gazetted Officer i.e. PW 12 Vikram Singh. 21. The next question is what would be effect of non- compliance of mandatory provisions of Section 50 of the NDPS Act.Object and purpose of Section 50 of the NDPS Act 22. The purpose of informing a suspect that search could be taken in the presence of a Gazetted Officer was to ensure that there was safeguard against planting any incriminating article. 23. These provisions have been made in order to protect the interests of the citizens from irregular and illegal invasion on his liberty by the authorities as well as in the interest of the State to secure the evidence bearing upon the commission of the crime and necessary to enable the justice to be done shall not be withheld from the course of law on merely formal or technical grounds. 24. The object of making it peremptory on the part of the officer so as to ensure that the officer, who is charged with the duty of conducting the search, to conduct it properly and not to harm or wrong, such as planting of offending drugs by any interested party and to prevent fabrications of any evidence. 25. The provisions of Section 50 are intended to provide a safe ground, against vexatious search, any unfair dealings and to protect and safeguard the interests of the innocent persons. It also provides a protection to the law enforcing agency. 26. The provisions of Section 50 of the NDPS Act have been made with the intention to act as a safeguard against the vexatious and unfair dealings. The provisions have also been incorporated in order to protect and safeguard the interest of an innocent person. If a person is searched before a Gazetted Officer or before a magistrate, as the case may he, then it will provide a weapon to the law enforcing agency against the common allegation that the opium has been planted by the investigating agency. 27. The rational behind this provision is manifest. If a person is searched before a Gazetted Officer or before a magistrate, as the case may he, then it will provide a weapon to the law enforcing agency against the common allegation that the opium has been planted by the investigating agency. 27. The rational behind this provision is manifest. A search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the proceedings. It would, varily, strengthen the prosecution. 28. The Hon'ble Supreme Court in so many cases has held that the provisions of Section 50 of the NDPS Act are mandatory in nature and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial. 29. Since in the present case, mandatory provisions of Section 50 of the NDPS Act have not been complied with by the prosecution, therefore, the whole proceedings stand vitiated so far as accused appellant Prakash Singh is concerned and on this ground alone, he is entitled to acquittal.Point No. 2 30. In the present case, there is no dispute on the point that seized articles were never produced during the trial in the Court and they were never identified by the witnesses of the prosecution. In order to establish a clear cut link between the seized articles and the report of the Chemical Examiner, in my considered opinion, it is absolutely necessary to have identified the articles before the court as substantive piece of evidence. After seizure, some quantity of the contraband is taken as a representative sample and the remaining part of the contraband is also required to be sealed. Such remaining part and containers, etc. should be produced in Court so that they may be got identified from the concerned witnesses, at the time of recording their evidence, to be the same which were seized from the accused. This part is missing in the present case. 31. The next point is what would be its effect on the prosecution case. 32. should be produced in Court so that they may be got identified from the concerned witnesses, at the time of recording their evidence, to be the same which were seized from the accused. This part is missing in the present case. 31. The next point is what would be its effect on the prosecution case. 32. In Kabu @ Khudia v. State of Rajasthan, (1991) Cr.L.R. (Raj.) 183 , this Court has held that production of seized articles in the court was necessary so that their chemical examination report could be corroborated with the seized articles and non-production of the case property in Court gives serious infirmity and doubt about the investigation. 33. In Valsala v. State of Kerala, 1993 Cr.L.R. (SC) 333 , it has been held by the Hon'ble Supreme Court that articles seized should be kept in proper custody and proper form so that Court can be sure that what was seized only was sent to the Chemical Examiner. If this is not done, there would be big gap and important missing link. 34. The Bombay High Court in Mainuddin Kasim Mulla v. State of Maharashtra, 1991 (2) EFR 167 has held that since the packets containing samples were not brought before the Court, therefore, they could not be got identified and as a result whereof, the trial stands vitiated. 35. This Court in Shambhu Lal & ors. v. State of Rajasthan, S.B. Cr. Appeal No. 504/95 decided on 6th May, 1996 has held as under : "the production of seized articles is necessary, so that their chemical report can be corroborated with the seized article, but the learned Public Prosecutor is not able to show any evidence on record and in view of the cases referred above, the non- production of the case property `Nal' in Court gives serious infirmity and doubt about the investigation. 36. In view of the fact that in the present case articles have not been produced in the Court during trial, it cannot be said that case of the prosecution has been established beyond reasonable doubt. Thus, accused appellant Prakash Singh is entitled to acquittal on this ground also. 37. 36. In view of the fact that in the present case articles have not been produced in the Court during trial, it cannot be said that case of the prosecution has been established beyond reasonable doubt. Thus, accused appellant Prakash Singh is entitled to acquittal on this ground also. 37. Thus, both arguments, which have been advanced the learned counsel for the accused appellant Prakash Singh have been substantiated by him by oral as well as documentary evidence produced by the prosecution itself and in view of this, the findings of the learned Special Judge, NDPS Act Cases, Jodhpur convicting accused appellant Prakash Singh for the offence under section 8/20(B)(11) of the NDPS Act cannot be upheld and the accused appellant Prakash Singh is entitled to acquittal.S.B. Cri. Appeal No. 376/98 filed by accused appellant Shyam Sunder 38. In this appeal, the following two submissions have been raised by the learned counsel for the accused appellant Shyam Sunder : 1. That the learned trial court has erred in convicting the accused appellant Shyam Sunder in absence of production of the recovered articles before the Court during trial. Hence, on this ground alone, the accused appellant is entitled to acquittal. 2. That the prosecution has not been able to prove that the recovered Charas from room No. 10 of the Mumal Tourist Bungalow was in the exclusive possession of the accused is appellant Shyam Sunder and since in that room, accused appellant Shyam Sunder as well as Christine Strobel were there and Christine Strobel has been acquitted, therefore, the findings of the learned Special Judge, NDPS Act Cases convicting accused appellant Shyam Sunder for the offence under section 8/20 (B)(11) of the 20 NDPS Act also cannot be sustained. Point No. 1 39. The point No. 1 with regard to non-production of seized articles in Court during trial and its effect on the prosecution case, has already been dealt with and decided in the aforementioned Appeal No. 406/98. 40. Accordingly, in view of the fact that articles have not been produced in the Court during trial, it cannot be said that case of the prosecution has been established beyond reasonable doubt and thus, accused appellant Shyam Sunder is entitled to acquittal on this ground.Point No. 2 41. 40. Accordingly, in view of the fact that articles have not been produced in the Court during trial, it cannot be said that case of the prosecution has been established beyond reasonable doubt and thus, accused appellant Shyam Sunder is entitled to acquittal on this ground.Point No. 2 41. The factual position with regard to point No. 2 may be summarised in the following manner as it is evident from the statements of witnesses, especially PW 10 Bhagwan Singh and PW 12 Vikram Singh and fard of search and seizure Ex. P/11. 42. From the fard of search and seizure Ex. P/11, the following facts have emerged out 1. That in Room No. 10 of the Mumal Tourist Bungalow, accused appellant Shyam Sunder and another accused Christine Strobel were found when PW 10 Bhagwan Singh and his party knocked the door. 2. That on eastern side of the Room, there was a bag and besides that bag, there was a polythene plastic bag and on opening, two packets containing charas were found. 3. That on being asked, both present accused appellant Shyam Sunder as well as accused Christine Strobel told that both of them had joint possession over the packets. 43. The following facts have further come out from the statement of PW 10 Bhagwan Singh, SHO, who conducted the search and seizure in the present case : 1. That both present accused appellant Shyam Sunder and accused Christine Strobel told him that both of them had joint possession over the seized packets. 2. That two packets of charas were taken out from the bag (though in Ex. P/11 it is written that these two packets were not in the bag, but were side by side with the bag). 3. That the fact that these two packets were in the bag are not found in Ex. P/11 as well as in his police statement Ex. D/3 and he has been contradicted on this point. 44. PW 12 Vikram Singh, in his statements, admits that two packets were taken out form the bag and on plastic bag, the name of the accused appellant Shyam Sunder was not mentioned. 45. Thus, from the statements of the above two witnesses, namely, PW Bhagwan Singh and PW 12 Vikram Singh, it becomes very much clear that there is a contradiction on the point that in Ex. 45. Thus, from the statements of the above two witnesses, namely, PW Bhagwan Singh and PW 12 Vikram Singh, it becomes very much clear that there is a contradiction on the point that in Ex. P/11, it has been mentioned that these two packets were not taken out from the bag alleged to be of accused appellant Shyam Sunder, but they were lying besides the bag, but, in their statements, both witnesses have tried to improve their version by stating that these two packets were taken by them from the bag. This Is a material contradiction and thus, it should be held that Charas in question was found not in bag but was lying in other plastic packet. Not only that there is no evidence to hold that bag belonged to accused appellant Shyam Sunder. On this point, statements of PW 2 Ajay Saxena and PW 4 Chandradeep Singh, who are motbir witnesses and PW 12 Vikram Singh, Dy. SP may be referred to. 46. There is no dispute on the point that at the time of search and seizure, PW 10 Bhagwan Singh was told by present accused appellant Shyam Sunder and another accused Christine Strobel that they had joint possession over the articles. 47. The question that arises for consideration is whether in the above circumstances can it be said that articles recovered were in exclusive possession of the accused appellant Shyam Sunder or not. 48. The legal position in this respect may be summarised in the following manner : 49. The term `possession' has not been defined in the Act nor is it possible to work out a completely logical and precise definition of this term uniformly applicable to all situations in the context of all the statutes. In the Dictionary of English Law (Earl Jowitt) (1959) at p. 1367) "possession" is defined as "the visible possibility of exercising physical control over a thing coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession unless accompanied by intention; if a thing is put into the hand of a sleeping person, he has no possession of it. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession unless accompanied by intention; if a thing is put into the hand of a sleeping person, he has no possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed..." 50. This definition has been recognised by the House of Lords in a well known case reported as Warner v. Metropolitan Police Commissioner, (1969) 2 A.C. 256 which has been followed with approval by the Hon'ble Supreme Court of India in Inder Sain v. State of Punjab, AIR 1973 SC 2309 . Thus, the term `possession' would imply dominion and control. A person cannot be said to be in possession of an article if he is not in a position to exercise any dominion over it. 51. Possession, in order to amount to an offence, must be conscious. It must be to the knowledge of the person on whom liability is sought to be fastened. Such a person must have dominion and control over such article and it must be exclusive. 52. Thus, it can be said that proof of exclusive possession is essential for making a conviction under the NDPS Act when there is a case against the accused that contraband opium was recovered from his possession in his house. 53. Looking to the facts and circumstances of the present case, it appears that the room in question was not in exclusive possession of the present accused appellant Shyam Sunder, but it was being shared by present accused appellant Shyam Sunder and one lady accused Christine Strobel, who has been acquitted by the learned Special Judge, NDPS Act Cases through his impugned judgment and order dated 15.5.1998. When there is a clear cut mentioning in the fard of search and seizure Ex. P/11 that recovered articles were in joint possession of accused appellant Shyam Sunder and lady accused Christine Strobel, how it can be said that articles were in exclusive possession of the accused appellant Shyam Sunder alone. When there is a clear cut mentioning in the fard of search and seizure Ex. P/11 that recovered articles were in joint possession of accused appellant Shyam Sunder and lady accused Christine Strobel, how it can be said that articles were in exclusive possession of the accused appellant Shyam Sunder alone. In such circumstances, conviction of the present accused appellant Shyam Sunder also cannot be sustained, especially when on 20 similar facts, one accused Christine Strobel has been acquitted by the learned Special Judge, NDPS Act Cases and similarly, on the same ground, the present accused appellant Shyam Sunder is also entitled to acquittal. 54. Thus the findings of the learned Special Judge, NDPS Act cases convicting accused appellant Shyam Sunder are liable to be set aside and he is entitled to acquittal.In the result, both the appeals filed by accused appellant Prakash Singh and Shyam Sunder are allowed and the judgment and order dated 15.5.1998 passed by the learned Special Judge, NDPS Act cases, Jodhpur are set aside and they are acquitted of the charges framed against them. Since the accused appellant Prakash Singh and Shyam Sunder are in jail, they be released forthwith, if not required in any other case.Conviction Set Aside. *******