JUDGMENT 1. -This is an appeal on behalf of the accused-appellant against the judgment and order dated 28.2.1997 passed by the learned Special Judge, NDPS Cases, Nimbahera Distt. Chittorgarh in Sessions Case No. 42/94, by which he convicted the accused-appellant for the offence under section 8/18 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced to ten years' Rigorous Imprisonment and a fine of Rs. 1 lac, in default of payment of fine, to further undergo two years' R.I. 2. It arises in the following circumstances : PW 9 Jaswant Singh, SHO made a parcha on 17.1.1993 at about 8.15 a.m. to the effect that he received a secret information from Mukhbir at 6.00 a.m. that in village Lunkhanda, accused-appellant has a house and in that house, he has kept contraband opium in a balti. On receiving such information, Jaswant Singh, SHO, PW 9 alongwith other police officials PW 5 Bhagwat Singh, PW 3 Chatar Singh, PW 4 Narain Singh, PW 6 Inayat Ali and two independent Motbirs PW 1 Mangilal and PW 2 Mohanal, reached the house of the accused-appellant in village Lunkhanda, where the accused-appellant met. Then, accused-appellant was informed that his house was to be searched and upon this, accused-appellant gave his consent and that consent if obtained by PW 9 Jaswant Singh on Ex.P/8 and, thereafter, house of the accused-appellant was searched and on search, a balti containing contraband opium, was recovered and it was weighed by PW 3 Chatar Singh. The weight of the opium including balti was found to be 3 kg. 300 grms. and the weight of the balti was found to be 1/2 kg. Two samples (50 grams. each) were taken and they were marked as "B" and "C" and balti was marked as "A". Fard recovery Ex.P/1 was prepared. Thereafter, sample "B" was sent to FSL through PW 7 Umed Singh and the receipt is Ex.P/6. The report which was obtained is Ex.P/6. The report which was obtained from FSL is Ex.P/13, where it is found that sample gave positive tests for the chief constituents of the coagulated juice of opium poppy having 5.32% (five point three two per cent) morphine. After usual investigation, the police submitted a challan against the accused-appellant. The report which was obtained is Ex.P/6. The report which was obtained from FSL is Ex.P/13, where it is found that sample gave positive tests for the chief constituents of the coagulated juice of opium poppy having 5.32% (five point three two per cent) morphine. After usual investigation, the police submitted a challan against the accused-appellant. Thereafter, the learned Special Judge framed charge against the accused-appellant for the offence under section 8/18 of the NDPS Act on 19.5.1993. The accused-appellant pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as ten witnesses and many documents were got exhibited. The statement of accused-appellant under section 313 Cr.P.C. was recorded. Thereafter, after conclusion of trial, the learned Special Judge by his judgment and order dated 28.2.1997 convicted and sentenced accused-appellant, as stated above. Against the said judgment and order dated 28.2.1997 passed by the learned Special Judge, NDPS Cases, Nimbahera, the accused-appellant has filed this appeal. 3. In this appeal, the learned counsel for the accused-appellant has raised the following points : 1. That the prosecution has not been able to prove that at the time of recovery, the concerned room was in exclusive possession of the accused-appellant as the house is being occupied by other family members also, as is evident from the evidence on record. 2. That the sample which was sent to the Chemical Laboratory on 20.1.1993, was returned with objection and it was resent on 28.1.1993 and there is no evidence that for the period from 20.1.1993 to 28.1.1993 where it remained and what objection was raised, therefore, it can be said that the sample has been tampered with and therefore, no reliance can be placed on it. 3. Apart from this, no specimen seal was taken on a separate paper at the time of recovery and no specimen seal was sent to the Chemical Examiner alongwith the sample. Thus, it was argued that because of the above infirmities, the case of the prosecution cannot be accepted and the accused-appellant is entitled to acquittal. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case.POINT No.1 : 6. The recovery memo of the contraband opium is Ex./1. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case.POINT No.1 : 6. The recovery memo of the contraband opium is Ex./1. Two independent motbirs are PW 1 Mangilal and PW 2 Mohanlal. Both of them have been declared hostile. But, PW 1 Mangilal admits in his cross-examination that accused-appellant and Nanalal are two brothers. The elder brother is Nanalal and father of the accused-appellant is Tekchand and they all live together in that house from where the contraband opium is said to have been recovered. Similar is the statement of PW 2 Mohanlal, another motbir. He has further stated that all the three persons live jointly. 7. PW 3 Chatar Singh is a police constable. He was present on the spot. He was taken by PW 9 SHO Jaswant Singh alongwith with him for search. He states in examination-in-chief that the key of the room was with the accused-appellant-Kishanlal and he gave it to SHO, PW 9 Jaswant Singh and, thereafter, room was opened and opium was recovered in a balti. In his cross-examination, he admits the following facts : 1. That it is correct that in his police statement Ex.D/1, the fact that key was taken from the accused-appellant has not been mentioned. Note: It is surprising that though there is a mention of Ex.D/1 in the statement of PW 3 Chater Singh when it was recorded in the Court, but Ex.D/1 has not been marked by the lower Court. 2. That sample which were taken, were kept in the dabi of plastic. 3. That on the spot, Nanalal, brother of the accused-appellant and Tekchand, father of the accused-appellant were there. 8. Another witness of the prosecution is PW 4 Narain Singh. He is also a police constable. He was present on the spot. He was also taken by PW 9 SHO, Jaswant Singh alongwith him for search. He also admits in his cross-examination : 1. That no evidence was taken at the time of search on the spot whether the house which was searched, exclusively belongs to accused-appellant. 2. That the house which was searched, is the joint house of accused-appellant and his brother. 9. He also admits in his cross-examination : 1. That no evidence was taken at the time of search on the spot whether the house which was searched, exclusively belongs to accused-appellant. 2. That the house which was searched, is the joint house of accused-appellant and his brother. 9. The next witness of the prosecution is PW 5, Bhagwat Singh, who was also present at the time of search. He also admits in his cross-examination that in his police statement Ex.D/2, it is not mentioned that accused-appellant gave key to PW 9 Jaswant Singh, SHO. 10. Another witness of police party is PW 6 Inayat Ali, who has also admitted in his cross-examination that the house which was searched, is joint house of accused-appellant and his brother. 11. Another witness is PW 9, SHO, Jaswant Singh, who conducted the search of the house of the accused-appellant. In his cross-examination, he admits the followings facts : 1. That his statement which was recorded under section 161 Cr.P.C. was recorded by himself. 2. That in his police statement, the fact that the key was taken from the accused-appellant has not been mentioned. 3. That the accused-appellant lives alone in the house which was searched, but he has not investigated the matter from this point of view whether another person lives with him or not. 12. Therefore, from the evidence which has been narrated above, it appears that the house which was searched, does not belong exclusively to the accused-appellant and his brother and father also live there. It also appears that key of the room was given by accused-appellant has not been mentioned by the witnesses in their police statements. Therefore, it appears that they have made improvements in their statements. 13. Now, the point which is to be considered is that when the house which was searched is not in exclusive possession of the accused- appellant, what would be its effect? 14. Proof of possession is essential for making conviction under section 8/18 of the NDPS Act, if there is a case against the accused-appellant that contraband opium was recovered from his possession in the house. 14. Proof of possession is essential for making conviction under section 8/18 of the NDPS Act, if there is a case against the accused-appellant that contraband opium was recovered from his possession in the house. In this respect, it may be stated that the term possession has not been defined in the Act, it can clear in this section by Judicial decisions like House of Lord in the case of Warner v. Metropolitan Police Commissioner, 1969 (2) A.C. 256 and approval by the Supreme Court in Inder Sain v. State of Punjab, AIR 1973 SC 2309 , the term possession would apply dominion and control. The exercise of dominion would be possible only, if there is knowledge of its existence or presence at a particular place. A person can be responsible for something which was found on the premises, which are in his control but in such a case there should be something in the circumstances that the said person has the knowledge of the existence of the contraband on the said premises. 15. Section 18 of the Act provides for punishment for possession or transportation of opium. Possession is made up of two elements, firstly, the corpus - the element of physical control and secondly, the animus or intent with which such control is exercised. It is conscious possession, which is contemplated by penal statute, which provides and penalises possession of any contraband article or thing. 16. It may be pointed out here that so far as the possession is concerned, corpus without animus is ineffective, but if animus is established it does not matter whether the possession is actual or constructive. 17. In R. v. Boyesen, 1982 AC 768 at pp. 773-774, Lord Scarman said:- "Possession is a deceptively simple concept. It denotes a physical control or custody or control. You may possess a thing without knowing or comprehending its nature, but you do not possess it unless you know you have it." 18. From the above discussion, it appears that it is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. 19. Applying the above principles, the present case is being examined. 20. From the above discussion, it appears that it is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. 19. Applying the above principles, the present case is being examined. 20. In the present case, it appears that the house in question was not in exclusive possession of the accused-appellant alone and his brother and father also live there jointly, as there is sufficient evidence to prove the said fact and thus, it can be said that there is nothing to indicate that the quantity of opium recovered from the house in question was in the conscious possession of the accused-appellant or that the house in question was in exclusive possession of the accused-appellant. In such circumstances, conviction of the accused-appellant for the recovery of the so-called contraband opium cannot be upheld. 21. In this respect, the decision in Mohd. Alam Khan v. Narcotics Control Bureau, AIR 1996 SC 3033 may be referred to, where Hon'ble Supreme Court has held that where ownership and possession of premises by accused from which contraband articles were seized not established, accused entitled to be acquitted. Similarly, this Court in Gordhan v. State of Rajasthan, 1991 Cr.L.R. (Raj.) 7 , hold that if the search is made from the house in joint possession, accused cannot be convicted. 22. On this point, two rulings of this Court in Union of India v. Hari Ram, 1994 Cr.L.R. (Raj.) 662 and Gulam Mohammed & Anr. v. The State of Rajasthan,1994 Cr.L.R. (Raj.) 706 may also be seen.POINTS No. 2 & 3 : 23. From the statement of PW 9, SHO, Jaswant Sigh, it appears that when the contraband opium in balti was recovered, two samples of 50 gyms. each were marked as 'B' and 'C' and the remaining opium in balti was marked as 'A' and as per the statement of PW 9 Jaswant Singh, they were deposited in the Malkhana. PW 9 Jaswant Singh, has admitted in his cross-examination that only Ex.Article-1 (it might be balti) is in the Court (other samples were not in the Court). He has further stated that in the Malkhana Register, there is no specimen of seal. 24. PW 10 Mohanal is the Head Constable, who received the above articles from PW 9 Jaswant Singh. PW 9 Jaswant Singh, has admitted in his cross-examination that only Ex.Article-1 (it might be balti) is in the Court (other samples were not in the Court). He has further stated that in the Malkhana Register, there is no specimen of seal. 24. PW 10 Mohanal is the Head Constable, who received the above articles from PW 9 Jaswant Singh. He states that on 17.1.1993, he received three articles which were registered in the Malkhana Register, copy of which is Ex.P/14. He further states that on 22.1.1993 he gave one sample to Constable Umed Singh, PW 7 for sending it to FSL. 25. Another witness in this case is PW 7 Umed Singh. He states that on 20.1.1993, (this date appears to be wrongly typed whereas it should have been 22.1.1993), Head Constable PW 10 Mohanlal gave him one sample. He brought that sample to Chittorgarh in the office of S.P. He admits that there was some objection about the sample and because of that he came back to village Kanera and from where, he went to Chittorgarh on 28.1.1993 and took forwarding letter from SP office and deposited the sample in the FSL, the report of which is Ex.P/6. In his cross-examination, he admits the following facts:- 1. That some objections were raised in the SP office about the seal on the sample, 2. That thereafter, he came back to Kanera and seal was corrected and again on 28.1.1993 he went to SP office. 3. That objection which was raised by the SP office was given in writing and he gave the sample in FSL to one Jamnalal. 26. From Ex.P/6 receipt, it reveals that a sample was deposited in the FSL at Jaipur on 29.1.1993 and this sample was despatched from the office of the SP on 28.1.1993. From Ex.P/12, it also appears that for the first time, sample was sent to SP Office, Chittorgarh from SHO, Kanera through PW 7 Umed Singh on 22.1.1993. From the statement of PW 7 Umed Singh, it is further clear that the sample which was taken by him on 22.1.1993 to the office of SP, was returned back with some objections and then, it was resent on 28.1.1993 and he took the sample with him for depositing it in the FSL and he deposited the same on 29.1.1993 in the FSL. 27. 27. The copy of Malkhana Register is Ex.P/14 in this case. The same has been proved by PW 10 Mohanlal. From perusing the Malkhana Register Ex.P/14, it appears that on 22.1.1993, the sample marked 'B' was given by PW 10 Mohanlal to PW 7 Umed Singh for sending it to Chemical Laboratory. Note:- In Ex.P/14, there is no mention of the fact that the sample which was despatched on 22.1.1993 returned back with some objections and it was again given to PW 7 Umed Singh. Thus, there is a mystery that when the sample was returned by SP Office, where it remained and who handled it and how the objections were removed or where it was kept. 28. Thus, from the above evidence, it is very much clear that the sample marked 'B' first was despatched by the Malkhana Register on 22.1.1993 and it was returned back with some objections and ultimately it reached again to the office of SP on 28.1.1993 and from SP Office, it was sent to FSL, Jaipur on 28.1.1993, which was received in the FSL on 29.1.1993 and from 22.1.1993 to 28.1.1993 it remains in whose possession, it is not clear and, therefore, in this case, possibility that sample was tampered with cannot be ruled out. Not only this, there is no evidence in this case that specimen seal on separate paper was also sent to FSL and from this point of view also, recovery is doubtful. 29. In Valsala v. State of Kerala, 1993 Cr.L.R. (SC) 333 , the Hon'ble Supreme Court has held that where the articles seized appears to have been not kept in proper custody and proper form and evidence in this respect is not satisfactory, conviction cannot be maintained. 30. In this respect, reference may be made to the decision in Harpal Singh & Ors. v. State of Rajasthan, 2000 Cr.L.R. (Raj.) 291 . 31. There is one more aspect in this case which should be touched also. 32. PW 9 Jaswant Singh, SHO has stated in his statement that two samples of opium marked 'B' and 'C' were taken on the spot and balti was marked as 'A'. In his statement, he has stated only Article 1 has been marked and that can be referred to balti and in the statement of PW 2, Mohanlal, there is a mention of Article-1 also. In his statement, he has stated only Article 1 has been marked and that can be referred to balti and in the statement of PW 2, Mohanlal, there is a mention of Article-1 also. PW 9 Jaswant Singh has categorically admitted in his cross-examination that only Ex.Article-1 is in the Court and other samples are not in the Court. It can be said that sample 'B' was sent to FSL as is mentioned in FSL report Ex.P/13, but what has happened to sample 'C' and why it has not been produced in the Court. It is not clear. This aspect of the matter creates doubt with respect to handling and keeping the samples, particularly when there is an averment in the statement of PW 7 Umed Singh that seal of samples was tampered and that is why, it was returned. From this point of view also, the prosecution case appears to be doubtful. 33. Thus, from the discussion made above, it clearly appears that the articles seized have not kept in proper custody and in proper form and the evidence in this respect which has been produced by the prosecution is not satisfactory and in absence of this, findings of conviction recorded against the accused-appellant cannot be sustained. 34. For the reasons mentioned above, the prosecution has failed to prove case beyond reasonable doubt against the accused-appellant for the offence under section 8/18 of the NDPS Act and, therefore, the accused-appellant deserves to be acquitted of the charge framed against him and thus, the findings of the learned Special Judge holding the accused-appellant guilty for the offence under section 8/18 of the NDPS Act cannot be sustained and are liable to be set aside.Accordingly, this appeal filed by the accused-appellant-Kishanlal is allowed and the impugned judgment and order dated 28.2.1997 passed by the learned Special Judge, NDPS Cases, Nimbahera are set aside and the accused-appellant is acquitted of the charge under section 8/18 of the NDPS Act. Since he is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******