Judgment S.B. Sinha, J. This appeal is directed against a judgment of conviction and sentence dated 7th February, 2000 passed by the ld. Session Judge, A & N Islands, Port Blair in Session Case No.7 of 1996 whereby and whereunder the ld. Session Judge convicted the appellant herein for an alleged commission of offence under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act for the sake of brevity) and sentenced him to undergo RI for one year and to pay a fine of Rs.2000/- i.d. to suffer RI for further period of one month. 2. The prosecution case as it appears from the First Information Report is that on 31st August, 1994 at about 15.00 hours the Station House Officer, Diglipur, Police Station, Shaukat Hussain upon receiving a secret information to the effect that the appellant who is youngest brother of the Ex-Pradhan Dhiren Mitra brought with him Ganja from Calcutta and was selling the same to different parties against price and if an immediate raid is conducted the same would be recovered, and pursuant to the said information, he allegedly deployed two constables to locate the house of the appellant and to keep a watch thereover. Search warrant from the ld. Judicial Magistrate, Mayabunder, however, could not be obtained for the said purpose in relation whereto an information was given to the then Tehsilder-cum-Executive Magistrate, Mr. Govindram of Diglipur over telephone and he was requested to accompany him. Allegedly two independent witnesses were found out through-Head Constable 67 R.K. Nair namely Mohammed Hanif son of B. Moideen Contractor of A.P.W.D. and N. Balan son of Narasimam who is a shop owner. Allegedly while going to the house of the appellant they also took with them one Ranjit Chandra Dey, sweet meat stall' owner with the weighing scale and weights and upon reaching Milangram; from the police men who have been deployed to watch the house of the appellant, they came to know his address. The raiding party went to his house and found him present there. Allegedly in the said house one violet coloured school bag was recovered from beneath the cot of the bed room and upon opening the same, a plastic packet was found which appears to be containing ganja. Weighment of the said material was taken which came to be 500 grams. Allegedly in the said house one violet coloured school bag was recovered from beneath the cot of the bed room and upon opening the same, a plastic packet was found which appears to be containing ganja. Weighment of the said material was taken which came to be 500 grams. Samples of ganja so recovered were collected in two packets of 25 grams each for per-serving the same as well as for sending the sample for chemical examination. Allegedly the investigation had been taken up by the Station House Officer himself and upon detecting the procedural irregularity in relation thereto, under the orders of the Dy. S.P. Mayabunder, the Circle Inspector, Rangat took up the investigation and submitted the charge-sheet under section 20(b)(i) of the said Act. 3. The appellant pleaded not guilty to the said charge. In support of its case, the prosecution examined as many as 12 witnesses, PWs-1, 2, 3, 4, 5, 6 & 11 are said to be the persons who took part in the raid. PW-6 himself who conducted the search sought to prove the seizure of the contraband articles. Several documents had also been proved by the said witness. 4. The ld. Session Judge having regard to the materials on record believed the story as set up by the prosecution and came to the conclusion that the seized ganja was found to be in immediate possession of the accused. It was held that the appellant had direct and conscious possession of the ganja; According to the learned Court below, the burden of proof was upon the appellant to prove absence of culpable mental state about the existence of ganja in his bed room in terms of section 35 of the said Act. 5. The ld. Session Judge further opined that the presumption of guilt can be raised on the basis of Ext. 6 which is a statement made by the appellant to the following effect :- "Today on 31.8.94 you all came to my house in search of ganja I am trusting you all. You can search my house I don't have any objection". 6. Mr. B.K. Das the ld. Counsel appearing on behalf of the appellant has, inter alia, submitted that from the available materials on record it would appear that in the room wherefrom the ganja was recovered was accessible to other members of the family. You can search my house I don't have any objection". 6. Mr. B.K. Das the ld. Counsel appearing on behalf of the appellant has, inter alia, submitted that from the available materials on record it would appear that in the room wherefrom the ganja was recovered was accessible to other members of the family. The school bag containing ganja admittedly did not bear name of any person and, thus, it must be held that the prosecution has not been able to prove the alleged offence against the appellant herein beyond reasonable doubt. It was further submitted that as the Station House Officer, Shaukat Hussain (PW-6) not only conducted the search but also investigated the case and interrogated the witnesses, the prosecution case is vitiated in law. 7. Mr. A.K. Ray the ld. counsel appearing on behalf of the State, on the other hand, supported the judgment under appeal. According to the ld. counsel having regard to the materials on record and further in view of the conduct of the appellant himself both prior to and during the search and seizure, the prosecution must held to have proved the case beyond all shadow of doubt. According to the learned counsel, the search and siezure having been made in terms of section 42 of the Act, the irreguhirity, if any, cannot vitiate the trial. 8. PW-1 is the Executive Magistrate. From his evidence as also evidence of other witnesses, it appears that recovery of ganja was made from one school bag beneath the cot in the bed room. The said bag was violet in colour and contained polythene papers which upon opening was found to be containing ganja. 9. Admittedly, the appellant did not possess any licence. The short question, which arises for consideration in this appeal, is as to whether the ganja in question was recovered from the possession of the appellant. 10. In this connection, the evidence of Shaukat Hussain the S.H.O. who examined himself as PW-6 is material. He stated that the ganja was recovered from the bed room and the same was kept under the bed sheet. He however, admitted that the house belongs to the brother of the accused. He could not say whether the brother of the appellant was married or not. He admitted that school hag is usually used by school students and there was no inscription of the name etc. He however, admitted that the house belongs to the brother of the accused. He could not say whether the brother of the appellant was married or not. He admitted that school hag is usually used by school students and there was no inscription of the name etc. of the accused on that bag. He could not say the name of the owner of the said house. He, however, admitted that the elder brother of the appellant was an Ex-Pradhan. He could not say to which political party he belonged to. In cross-examination he admitted that one could go from one room to another. 11. He further admitted that prior to this case no complaint whatsoever had been received against the accused for possessing or for selling or swallowing any ganja. He also admitted that no enquiry was made in relation to the source of supply of the said contraband article. 12. He further stated, "save and except the seized school hag with ganja there is no other proof with us supporting possession of the said ganja by the accused." 13. The aforementioned statement is important, inasmuch as, the question which would arise for consideration is as to whether in the circumstances aforementioned the seized ganja can be said to have been recovered from the exclusive possession of the appellant. 14. PW-12 Daya Shankar Singh in his evidence categorically stated that the elder brother of the appellant Dhiren Mitra was also an occupant of the house and they were living together alongwith their respective families. It further appears from the evidence of PW-6 that the bed room had door frames but the doors have screens only. The said witness further admitted that elder brother of the appellant was a married man. The other witnesses examined on behalf of the prosecution categorically stated that some ladies were also present at the time of search. The said witnesses had also admitted that the name of the accused was not on the bag. It is thus, evident that at the relevant time, the appellant was not the only person who was in the house, nor was he carrying the bag. Only because he permitted the Station House Officer to conduct search of the house does not lead to drawing of presumption of guilt against him. 15. Section 20(b)(i) of the NDPS Act reads thus: "20. Only because he permitted the Station House Officer to conduct search of the house does not lead to drawing of presumption of guilt against him. 15. Section 20(b)(i) of the NDPS Act reads thus: "20. Punishment for contravention in relation to cannabis 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 punishable - (i) where such contravention relates to ganja or the cultivation of cannabis 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." A bare perusal of the aforementioned provision of law clearly goes to show that for proving the possession of the Narcotic Drugs Psychotropic Substance, exclusive possession thereof must be found with the accused so as to arrive at a finding of guilt. 16. The term 'possession' jurisprudentially would mean possession with conscious mind. The ganja in question was recovered from a school bag. No body has proved that the school bag belonged to the appellant. The room where the school bag was recovered was accessible to others. The said room was not in exclusive possession of the appellant and in fact was in possession of his elder brother. The owner of the house was also the elder brother of the appellant. The inmates of the house had not been interrogated. It stands admitted that except recovery of the school bag, these does not exist any other material to establish the guilt of the appellant particularly when it has not been established that the house or the school bag belonged to him. 17. In Jinabhai Kalabhai Rajput vs. State of Gujarat, reported in 1999(2) Crimes 394, the contraband article was recovered from a suit case which was beneath a big trunk. Having regard to the evidences that the house of the appellant therein belonged to his father and when the raiding party made raid, the doors of the house were open, it was held that it had not been established beyond any doubt that the accused was possessed of any illegal charas. Similar is the position here, inasmuch as the school bag might be in his possession or may not be in his possession. 18. Similar is the position here, inasmuch as the school bag might be in his possession or may not be in his possession. 18. In Rubyana vs. State of Maharashtra, reported in 1996 Cri. L.J. 148, the Bombay High Court has held :- "That sine qua non for attracting the penal provisions viz. sections 20 & 21 of the NDPS Act, and section 25 read with section 7 of the Arms Act is that the appellant must be found in possession of the contrabands and the fire arms. The term 'possession' is not defined in the NDPS Act. The term 'possession' has been judicially construed to mean, in various decisions as under :- 'Possession' implies dominant and consciousness in the mind of the person having dominion over and object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object." 19. In view of what has been noticed hereinbefore the persecution evidence even if taken to the correct in its entirety, in the opinion of this Court, the same would not lead to an inference that the appellant was not in exclusive possession of the said bag. The prosecution case suffers from another defect. It has been admitted by Daya Shankar Singh that SI Shaukat Hussain conducted the raid and search and the witnesses were also interrogated by him. As noticed hereinbefore it is also prosecution case is that such procedural defect, had been noticed and allegedly the investigation had been entrusted to the Circle Inspector. 20. In Gyan Chand vs. The State of Rajasthan, reported in 1993 Cr. L.J. 3716, it has been held,- "Where, after receiving a source information that accused keeps and sells unauthorised opium, the Circle Inspector made search and seizure and went on further to investigate the matter, such an investigation is not fair and the Inspector is not proper authority to investigate as his status is same as that of a complainant, therefore conviction of accused in such circumstances is liable to be set aside." 21. In view of the aforementioned findings, I am of the view that the appellant will be entitled to the benefit of doubt as the prosecution failed to establish its case beyond all shadow of doubt. Furthermore the ld. In view of the aforementioned findings, I am of the view that the appellant will be entitled to the benefit of doubt as the prosecution failed to establish its case beyond all shadow of doubt. Furthermore the ld. Session Judge erred in law in drawing the presumption against the appellant on the basis of Exhibit-6. 22. Having regard to the aforementioned nature of evidence this Court is of the opinion that it is a case where the accused in entitled to get benefit of doubt. For the reasons aforementioned this appeal is allowed and the impugned judgment of conviction and sentence is set aside. The accused appellant is acquitted. The appellant is hereby directed to be set at liberty forthwith unless wanted in connection with any other case. Appeal allowed.