JUDGMENT 1. - This appeal has been filed by the accused appellant against the judgment and order dated 24.1.2001 passed by the learned Special Judge, NDPS Cases, Jalore Camp Bhinmal in Sessions Case No. 1/2000 by which he convicted the accused appellant for the offence under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act) and sentenced him to to undergo ten years' Rigorous Imprisonment and to pay a fine of Rs. 1 lac, in default of payment of fine, to further undergo six months R.l. 2. It arises in the following circumstances- On 7.12.1999, RW. 8 Gopal Ramawat received a secret information at about 7.00 A.M. on telephone from the mukhbir to the effect that accused appellant, who was driver in the Roadways and who lived in Kalka Colony in the house of RW. 4 Shantilal as a tenant, had brought Bus from Jaipur to Jalore and also brought with him 2 kg. milk of opium in the bag of ragsin and he has kept in his house. That information was reduced into writing by RW. 8 Gopal Ramawat in Ex. P/10 and copy for that information Ex. P/11 was sent to SR Jalore and thereafter, RW. 8 Gopal Ramawat alongwith P.W. 1 Achaldan. RW. 10 Chetan Lal and others proceeded towards the house of RW. 4 Shantilal and when they reached near hospital crossing at about 7.30 A.M., they took one motbir RW. 6 Tejaram and when they reached near the club at Jalore, they took another motbir P.W. 5 Dhudaram and at about 7.55 A.M. they reached the house of PW. 4 Shantilal in Kalka Colony where RW. 4 Shantilal was found standing before his house and he was asked about the accused appellant and he told that accused appellant was his tenant and, thereafter, RW. 8 Gopal Ramawat knocked the door of the room, in which accused appellant was residing as a tenant and upon this, the accused appellant opened the gate and came out and on being asked he told his name as Ram Chandra (accused appellant) and, thereafter, he was given notice (Ex. P/4) under section 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate of Gazetted Officer and upon this, he gave his consent that search could be made by RW. 8 Gopal Ramawat. P/4) under section 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate of Gazetted Officer and upon this, he gave his consent that search could be made by RW. 8 Gopal Ramawat. Thereafter, room was searched and on the right side, there was a table and beneath that table, there were three attachies and near the attachies, there was regsin bag and that bag was opened and on opening that bag, 2 kg. 100 grms. milk of opium was found in it and out of that milk of opium, two samples of 50 grms. each were taken and sealed on the spot separately and marked as A and B and rest milk of opium was also sealed separately on the spot and marked as C. RW. 8 Gopal Ramawat prepared the fard of search and seizure on the spot and the same is Ex. P/1. The specimen impression of seal was taken on Ex. P/2. The fards of consent of two motbirs Dhudaram (RW. 5) and Tejaram (RW. 6) are Ex. P/3 and Ex. P/7 respectively. The accused appellant was arrested through arrest memo Ex. P/6. RW. 8 Gopal Ramawat chalked out the regular FIR Ex. P/16. The information under section 57 of the NDPS Act about search and seizure was sent to SP. Jalore through Ex. P/18A. The seized articles were deposited in the Malkhana. Thereafter, vide letter Ex. P/9, samples A & B were sent to FSL, Jaipur through RW. 7 Bairam, who deosited the same in the FSL, Jaipur and got receipt Ex. P/8. The FSL report is Ex. P/13, in which it was reported that the sample contained in each of the packet marked A and B gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 2.47% (Two Point four seven percent) morphine in each sample. After usual investigation, police filed challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session.On 26.4.2000, the learned Special Judge, NDPS Cases, Jalore Camp Bhinmal framed charges for the offence under sections 8/17 & 8/18 of the NDPS Act against the accused appellant. The charges were read over and explained to the accused appellant. The charges were read over and explained to the accused appellant. The accused appellant denied the charges and claim trial.During the course of trial, the prosecution in support of its case examined as many as 13 witnesses and got exhibited several documents. Thereafter, statement of the accused appellant under section 313 Cr. PC. was recorded in which he also took the plea that the bag in question belonged to Ladhudan Charan and not to him. In defence, the accused appellant produced one witness.After conclusion of trial, the learned Special Judge, NDPS Cases, Jalore Camp Bhinmal through his judgment and order dated 24.1.2001 convicted the accused appellant for the offence under section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter-alia - (1) That prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under section 8/18 of the NDPS Act. (2) That from the evidence, it is also established that bag from which milk of opium was recoverd belonged to accused appellant and he was in exclusive possession of it and the argument of the learned counsel appearing in the trial Court for accused that bag in question belonged to Ladhudan Charan was rejected by the learned Special Judge. Aggrieved from the said judgment and order dated 24.1.2001 passed by the learned Special Judge, NDPS Cases, Jalore Camp Bhimal, this appeal has been filed by the accused appellant. 3. In this appeal, the learned counsel for the accused appellant has raised only one submission and the same is that the prosecution has utterly failed to prove that the bag in question exclusively belonged to the accused appellant, as it has been admitted by the witnesses of the prosecution, namely RW. 4 Shantilal, PW. 5 Dhudaram and RW. 6 Tejaram, who were independent witnesses, that in the bag in question, there was license in the name of Ladhudan Charan and clothes of Ladhudan Charan were also there in the said bag and there is also evidence that he was also staying in that room and, therefore, the learned Special Judge has committed mistake in holding that the bag in question was in exclusive possession of the accused appellant and thus, the findings of the learned Special Judge are liable to be set aside and the accused appellant is entitled to acquittal. 4. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Jalore Camp Bhinmal. 5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. 6. To appreciate the above contention, the evidence of this case has to be looked into. 7. In this case, motbir witnesses are RW. 5 Dhudaram and RW. 6 Tejaram, who are independent witnesses and RW. 4 Shantilal is the landlord and in his house, the accused appellant was tenant and there is no dispute on this point. 8. So far as the evidence of members of the raiding party headed by P.W. 8 Gopal Ramawat is concerned, they all have denied this fact when they were put in cross-examination that the bag in question belonged to Ladhudan Charan, but it is also very much clear from their cross examination that this suggestion was put to them. 9. From the statements of RW. 1 Achaldan, RW. 2 Jalam Singh and RW. 8 Gopal Ramawat, it is also clear that in the room, bag was found beneath the table and in that room, accused appellant and his wife were living. 10. Now, the statement of RW. 4 Shantilal, who was landlord of accused appellant and who was present on the spot when the search of room was being conducted has to be seen. This witness admits the following facts in cross examination- (1) That on the previous night, accused appellant came alongwith one person, whose name was Ladhudan Charan and the accused appellant was having attachi and in the hand of Ladhudan Charan, there was bag and they both went in the room of accused appellant and since Ladhudan Charan was sleeping in the room, the wife of the accused appellant came out from the room and slept in his house. (2) That it is correct to say that two days before, the brother of the accused appellant came and also stayed in that room. (3) That it is also correct to say that in the bag from which opium was recoverd, there was a license in the name of Ladhudan Charan and that license was taken by the police party. (4) That the date on which accused appellant and Ladhudan Charan came, the brother of the accused appellant was also there. (3) That it is also correct to say that in the bag from which opium was recoverd, there was a license in the name of Ladhudan Charan and that license was taken by the police party. (4) That the date on which accused appellant and Ladhudan Charan came, the brother of the accused appellant was also there. 11. RW. 5 Dhudaram is the motbir witness. Who has also put his signatures on the fard of search and seizure Ex. P/1 and there is also evidence that he was independent motbir witness at the time of search and seizure. He admits the following facts in cross-examination- (1) That when the door of the room of the accused appellant was opened, there was one more person and he cannot say who was that person. (2) That in the bag from which opium was recovered, a license was also found alongwith clothes and that license was taken by the police. 12. Another motbir witness is RW. 6 Tejaram. He admits in cross examination that in the room, which was searched, there was a cot and one more person was sleeping and in the bag from which opium was recovered, there was a driving license and police officials were saying that it belonged to Ladhudan Charan, who was Driver in the Roadways and that license was taken by the police. 13. Now, the question that arises for consideration is whether in the above circumstances the case of the prosecution that bag in question was in exclusive possession of the accused appellant can be said to have been established or not. 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. Matropolitan 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 of presence at a particular place. The exercise of dominion would be possible only, if there is knowledge of its existence of 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 effective, 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. There is no dispute on the point that the room from which bag in question was recovered was in possession of the accused appellant as a tenant. 21. From the cross examination of the prosecution witnesses, namely, 1 RW. 4 Shantilal, P.W. 5 Dhudaram and RW. 6 Tejaram, this fact has also come in picture that the bag in question was found beneath the table and in that bag, a license was also found, which belonged to one Ladhudan Charan, another Driver in the Roadways. In the evidence of RW. 4 Shantilal, who was landlord s of the accused appellant, this fact has also come in picture that alongwith thue accused appellant, another person, namely, Ladhudan Charan also came in the night and they both stayed in the room. In the evidence of RW. 4 Shantilal, who was landlord s of the accused appellant, this fact has also come in picture that alongwith thue accused appellant, another person, namely, Ladhudan Charan also came in the night and they both stayed in the room. 22. From the evidence of the members of the raiding party, it appears that they have not admitted this fact, but in cross examination they were given 1 the suggestion of this fact. 23. There are two cardinal principles of criminal jurisprudence; (i) that the burden to prove the case beyond reasonable doubt lies on the prosecution and (ii) that the accused is entitled to every reasonable benefit of 1 doubt. 24. In the present case, P.W. 4 Shantilal, PW. 5 Dhudaram and RW. 6 Tejaram are the prosecution witnesses and they have not been declared hostile and, therefore, their evidence cannot be discarded by saying that they are not favourable to the prosecution since they are also the witnesses of the 2 prosecution in the same manner as others are. 25. Before proceeding further something should be said about the importance of cross examination in a criminal trial.Importance of cross-examination in a criminal trial 26. The object of cross examination is two fold- to weaken, qualify or ; destroy the case of the opponent and to establish the party's own case by means of his opponent's witnesses. The objects are to impeach the accuracy, credibility, and the general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross examining party. The exercise of this right is one of the most efficacious tests for the discovery of truth. By it, the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of facts, his powers of discernment, memory and description are all fully investigated and : ascertained. The object of cross examination is not to produce startling effects but to elicit facts which will support the theory intended to be put forward. The object of cross examination is not to produce startling effects but to elicit facts which will support the theory intended to be put forward. Sections 137 and 138 of the Evidence Act clearly show that cross examination is as essential as examination-in-chief, for eliciting from a witness material which is to constitute evidence. 27. Whether the evidence of the two motbir witnesses RW. 5 Dhuda Ram and RW. 6 Tejaram and RW. 4 Shantilal, who was landlord of the accused appellant should be accepted or not, but the evidence, which has come on record from their statements is in direct conflict with the statements of the police officials. Thus, it can be said that statements of the police witnesses are very much different from what P.W. 4 Shantilal, P.W. 5 Dhudaram and P.W. 6 Tejaram disclosed and this is totally contrary to the case of the prosecution and evidence of the police official witnesses. When the public witnesses shake the case of the prosecution, it becomes difficult to pin faith in the testimonies of the official witnesses. 28. From the evidence on record, it appears that apart from the accused appellant, one person, namely, Ladhudan Charan was also staying in the room and that the bag in question belonged to Ladhudan Charan as his license was also recovered from that bag and, therefore, a reasonable doubt has arisen in the present case whether the bag in question actually belonged to accused appellant or not. The case of the defence this point cannot be said to be after thought as from the very beginning this stand was taken by the counsel for the accused appellant when witnesses of the prosecution appeared in the trial court. 29. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily conched the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. Proof beyond a reasonable doubt does not mean proof beyond a shadow of doubt, as held by the Hon'ble Supreme Court in K. Gopal Reddy v. State of Andhra Pradesh, AIR 1979 SC 387 . 30. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act while explaining the meaning of the words 'proof, 'disproved' and 'not proved' lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first that in which a man feels absolutely certain of a fact, in other words, 'believe it to exist' and secondly in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now one comes to the third stage where in the view of a prudent man the fact is not proved, i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'. Vide Vijayee Singh v. State of U.P., AIR 1990 SC 1459 . 31. In criminal cases, the prosecution is under an obligation to prove the case beyond all reasonable doubt and if there is any doubt, its benefit must go to the accused. 32. Vide Vijayee Singh v. State of U.P., AIR 1990 SC 1459 . 31. In criminal cases, the prosecution is under an obligation to prove the case beyond all reasonable doubt and if there is any doubt, its benefit must go to the accused. 32. In the present case, the evidence of both sides is more or less equally balanced and when this being the position, the benefit of doubt must go to the accused appellant on the point of exclusive possession over the bag in question. 33. In criminal trial, there is no scope for principle of grave suspicion Therefore, from the statements of P.W. 4 Shantilal, RW. 5 Dhudaram and RW. 6 Tejaram who are witnesses of the prosecution and who have not been declared hostile, there remains a reasonable doubt on the point whether the bag from which milk of opium was recovered actually belonged to the accused appellant or not or whether this bag was of Ladhudan Charan, another Driver of Roadways. 34. For the reasons stated above, it is held that the prosecution has not been able to prove beyond all reasonable doubts that the bag, from which milk of opium was recovered, belonged to the accused appellant and thus, accused appellant is entitled to acquittal, after giving benefit of doubt and the findings of the learned Special Judge convicting the accused appellant for the offence under section 8/18 of the NDPS Act are liable to be set aside and this appeal deserves to be allowed.Accordingly, this appeal filed by the accused appellant Ram Chandra is allowed and the impugned judgment and order dated 24.1.2001 passed by the learned Special Judge, NDPS Cases, Jalore Camp Bhinmal are set aside and the accused appellant is acquitted of the charge for the offence 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. *******