JUDGMENT This appeal is directed against a judgment dated 31.3.2000 passed in Session Case No.9 of 1996 whereby and whereunder the appellant herein was found guilty of commission of an offence under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to for the sake of brevity as N.D.P.S. Act) and sentenced him to undergo six months' rigorous imprisonment and a fine of Rs. 5,000/- 2. The prosecution case is that a raid was conducted in the house of the appellant herein on 15.3.1996 by the Station House Officer, Aberdeen Police Station, Port Blair purportedly on the basis of an information received by him at 13.30 hours on that date to the effect that he had been dealing unauthorisedly in some contraband articles like ganja without having any licence or permit therefore. At the time of raid, the Station House Officer was accompanied by a Head Constable and two Constables. A search warrant was also obtained from the learned Chief Judicial Magistrate, Port Blair which was procured by Shri Dwivedi Tehsildar-cum-Executive Magistrate. The raiding party was accompanied by one purported independent witness Shiv Prasad. During the search allegedly a bag marked as 'Konica' being of light and dark blue colour was noticed, wherein two plastic packets and one paper packet containing 25 grams of ganja were found. The recovered ganja was sent for chemical examination. Upon consideration of the materials collected during investigation a charge sheet was filed, pursuant whereto the appellant was put on trial. 3. Before the learned trial Judge, six witnesses were examined on behalf of the prosecution and one witness was examined on behalf of the appellant. 4. Shri Tarseem Singh, the S.H.O. of Aberdeen P.S. examined himself as P.W.1. In his evidence, inter alia, he stated that he entered the said factum of seizure in a General Diary. The said General Diary was not produced. In his evidence, he denied that there had been any other male member in the house. According to him, the bag (Mat. Ext.-I) was recovered from' the bedroom of the accused. He admitted that at the time of search the door was open and the neighbouring immates were not interrogated. 5. PW-2 is S. S. Rathore. He, at the relevant point of time, was A.S.I. of Police. From his evidence, it appears that he did not go inside the room. Ext.-I) was recovered from' the bedroom of the accused. He admitted that at the time of search the door was open and the neighbouring immates were not interrogated. 5. PW-2 is S. S. Rathore. He, at the relevant point of time, was A.S.I. of Police. From his evidence, it appears that he did not go inside the room. He also admitted that room of the accused was open. 6. PWs-3 & 4 G. P. S. Prasad and Hawa Singh are formal witnesses. 7. PW-5 C. Dwivedi was the Tehsildar-cum-Executive Magistrate. He was asked to be a member of the raiding party by the PW-l. This witness in his examination-in-chief itself stated that the accused himself produced one leather bag which was found lying in the cot. PW-l however did not say so. He alleged that before the raiding party, the appellant allegedly admitted upon interrogation by the Thanedar that he had kept the contraband article in the bag. Yet again this is an improvement on the statement made by the PW-l. In cross-examination, he admitted that nothing was given to the accused in writing to the effect that he was an Executive Magistrate. He further admitted that, at that time, the accused was with his wife and children. He did not mark whether there was any other house near the house in question. But, he admitted that there were dwelling houses nearby. He made improvement over the statement made by the PW-l to the effect that enquiry has been made in some 3 to 4 adjourning houses. He could not tell the residential address of the accused. 8. PW -6 is K. P. Palla. He, at the relevant point of time, was the Circle Inspector, South Andaman and had been looking after the duties of the Dy. S. P. He received the report submitted by PW-l to the effect that the latter had received an information that the appellant herein was dealing with some contraband articles like ganja without any licence or permit and was proceeding to Court for obtaining search warrant. F.I.R. was lodged at 16.10 hours and thereafter he took up the investigation. He allegedly examined Shri Shankar Pandey, Kumari Vijay Laxmi, Durganand Pandey, Smt. Parvathi, Suresh, K. Suresh and Snit. Sekha Sarkar. The purport of their statements have not been brought on records nor these persons were examined as witnesses. F.I.R. was lodged at 16.10 hours and thereafter he took up the investigation. He allegedly examined Shri Shankar Pandey, Kumari Vijay Laxmi, Durganand Pandey, Smt. Parvathi, Suresh, K. Suresh and Snit. Sekha Sarkar. The purport of their statements have not been brought on records nor these persons were examined as witnesses. He admitted that there is nothing in the F.I.R. to show that the Search Officer concerned made it clear to the accused in writing that he was to be searched before the Magistrate. He further admitted that nothing specifically in writing in the F.I.R. was stated about the 'Jama Thalasi'. The statements of the wife of the accused was also allegedly recorded under Section 161 Cr. P. C. He alleged that during interrogation/examination the accused stated, "Kabhi Kabhi cigaratte men ganja milake peetha hum". He did not enquire whether the S.H.O. interrogated the inmates of the house before conducting the search operation. In his cross-examination, he stated :- "I did not notice the name inscription enbossed or not on the seized bag showing that it belonged to the accused. As I was the then Senior Officer, so I took up the investigation suo motu. I don't remember whether at that time there was any Inspector posted at Aberdeen P. S. or not or in the office of the C. 1." 9. DW-1 is Shiv Prasad who was the independent witness during search operation. He stated that on receipt of the summons he met the P. P. but he was informed that he was not required to give evidence. The said witness stated that at the time of alleged search he and the accompanying constables did not enter into the room. According to him, at the time of search, the appellant's wife, one relative and two sons were inside the room. He was asked by PW -1 to sign in the blank paper which he complied with. In his cross-examination, he stated :- "Not a fact that the copy of the paper signed by P. Sarkar was given to him. I know Mr. Dwivedi, Executive Magistrate, Port Blair. Not a fact that Mr. Dwivedi signed in my presence. And that P. Sarkar took me before his learned Advocate prior to coming, to Court today." 10. In his cross-examination, he stated :- "Not a fact that the copy of the paper signed by P. Sarkar was given to him. I know Mr. Dwivedi, Executive Magistrate, Port Blair. Not a fact that Mr. Dwivedi signed in my presence. And that P. Sarkar took me before his learned Advocate prior to coming, to Court today." 10. One of the principal questions which arises for consideration in the aforementioned back drop of the matter as to whether the prosecution has been able to prove that the accused was in possession of 125 Gms. of contraband articles. Section 20(b)(i) of the N.D.P.S. Act, 1985 reads thus:- "Punishment for contravention in relation to canabis plant and canabis-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder :- (a) ............ (b) produces, manufactures, possess, sells, purchases, transports, imports, inter-state, exports, inter-State or uses canabis, shall be purnishable (i) Where such contravention relates to ganja or the cultivation of canabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees." 11. Mr. B.K. Das, learned Advocate appearing for the accused appellant, inter alia, submitted that in absence of examination of the inmates of the house, no link between alleged seizure and the exclusive possession of the contraband articles can be presumed. It was further submitted that, in the instant case, the mandatory provisions of Section 100(4) Cr. P. C. have not been complied with. It was pointed out that the only independent witness Shiv Prasad not only was not produced by the prosecution but no explanation has been offered for his non-examination. It is not the Case, contends Mr. Das, where presumption can be drawn against the accused as regard selling and transporting of ganja. 12. Mr. Ray, the learned Counsel appearing for the state, on the other hand, submitted that from the perusal of the materials-on-record, it would appear that a defence has been taken by the appellant that ganja in question was for his personal consumption. The learned Counsel contends that the burden of proving such plea was on the accused in terms of the sub-section (2) of Section 27 of the said Act. The learned Counsel contends that the burden of proving such plea was on the accused in terms of the sub-section (2) of Section 27 of the said Act. The learned Counsel submits that as in this case search was conducted in terms of Section 42 of the said Act and not in terms of Section 50 thereof, the Executive Magistrate would be treated as an independent witness. 13. Sub-section (4) of Section 100 of Cr. P. C. reads thus:- "Before making a search under this chapter, the Officer or other person about to make it shall call upon to or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if any such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do." 14. Although a search which although is held to be otherwise irregular, but commission of the offence is proved, such irregularity may not vitiate the conviction. One is, however, required to bear in mind that the procedure prescribed under Section 100 of Cr.-P. C. should normally be followed. The protective measures mentioned in Section 100 of Cr. P. C. is totally ignored the Court may consider the same being violative of the principle of natural Justice, See (I) State of West Bengal v. Tapan Kr. Saha reported in 1999 (2) CHN 519 . 15. In the instant case all the witnesses were official witnesses. The Executive Magistrate had been taken by the S. H. O. to the house in question only for the purpose of complying with the requirements contained in Section 50 of the N. D. P. S. Act. Thus, the said witness cannot be said to be an independent witness. In fact, he had tried to -improve the prosecution case which had not even been made out by the PW -1. It is not at all understandable as to why the so-called independent witness DW-l was withheld. No explanation whatsoever has been brought on records, as to why he had not been examined as prosecution witness. In fact, he had tried to -improve the prosecution case which had not even been made out by the PW -1. It is not at all understandable as to why the so-called independent witness DW-l was withheld. No explanation whatsoever has been brought on records, as to why he had not been examined as prosecution witness. The statements made by him to the effect that on receipt of summon he met the P.P. but was told that his evidence was not required, clearly goes to show that the prosecution did not want to examine the said witness. In a case of this nature where the conviction of the accused may depend on the seizure of the prohibited item, the prosecution should examine the independent witnesses. If while being examined as a prosecution witness, a witness states anything contrary to the case of the prosecution, permission of the Court could have been sought for by the prosecution to cross-examine him. But, only because the said witness would not support the case of the prosecution may not itself be a justifiable ground to withhold him. 16. In (2) Raj Pal & Anr. v. State of Haryana, 1993 Vol. I Crimes 99, it has been held that where there are independent witness in the case, their non-examination affects the credibility of the other witnesses. Yet again in (3) Karnesh Kumar Singh & Drs. v. State of U. P., AIR 1968 SC 1402 , the Apex Court held that it is the bounden duty of the prosecution to examine the material witnesses particularly when no allegation has been made that if produced, he would not speak the truth. Non-examination of material witness reflects upon the veracity of trial. 17. In (4) Pradeep Narayan Madgaonkar & Drs. Non-examination of material witness reflects upon the veracity of trial. 17. In (4) Pradeep Narayan Madgaonkar & Drs. v. State of Maharashtra reported in 1995 (4) SCC 255 , the Apex Court observed :- "We cannot lose sight of the fact that these police officials did not take any independent witnesses of the locality and made an attempt to create an impression on the Courts that both PW -2 and PW -5 were witnesses of locality and were independent, knowing fully well that PW -2 was a witness who was under their influel1ce and available to them, as he had been joining the raids earlier also and PW-5 a close associate of PW-2 their friendship having developed during the days of gambling when admittedly the police never conducted any raid at their gambling den." 18. The Apex Court did not find the prosecution evidence reliable on the aforementioned count. 19. It appears that the learned Session Judge has committed an error in disbelieving the evidence of the DW-1. The learned Session Judge also erred in observing that the DW-1 did not state anything about any threatening from Tarseem Singh to put his signature on a blank papers although he did state the same, as would appear from his statements noticed there-in-before. It appears that a further error held been committed by the learned Session Judge as he proceeded on the basis that Palash Sarkar had asked DW to depose in this case and before coming to the Court on that date once he deposed as a DW he was taken before the learned Advocate of the accused person by the accused himself. It appears from the records, that learned Session Judge failed to notice the word 'AND' in the statement of the said witness as noticed supra that he had denied the suggestion made to that effect by the prosecution. The learned Session Judge appear to have missed the word 'AND' which was in continuation of the suggestion made by the prosecution which was denied and not an admission on the part of the said witness. Having regard to the aforementioned nature of evidence, this Court is of the opinion that it is a case where the accused is entitled to get benefit of doubt. For the reasons aforementioned this appeal is allowed the impugned judgment of conviction and sentence is set aside. The accused-appellant is aquitted. Having regard to the aforementioned nature of evidence, this Court is of the opinion that it is a case where the accused is entitled to get benefit of doubt. For the reasons aforementioned this appeal is allowed the impugned judgment of conviction and sentence is set aside. The accused-appellant is aquitted. The appellant is hereby directed to be set at liberty forthwith unless wanted in connection with any other case.