JUDGMENT 1. - This appeal has been filed by the accused-appellant against the judgment and order dated 08.08.2000 passed by the learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 63/98, 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 to ten years' Rigorous Imprisonment and to pay a fine of Rs. 1 lac, in default of payment of fine, to further undergo 21/2 years' R.I. 2. It arises in the following circumstances:- On 29.08.1998 at about 4.00 AM, PW-8 Prabhu Singh, SHO, Police Station Kalyanpur District Barmer received a secret information from mukhbir to the effect that on Suzuki Motor-cycle three persons were going towards Charlai and Sarwari from Doli and there was a bag on back side of Motor-cycle and in that bag, there was 6 kgs. milk of opium and out of these three persons, the name of one of them was Thana Ram (present accused-appellant) and he did not know the names of other two persons. That information was reduced into writing by PW-8 Prabhu Singh in Ex.P /14. He also entered this information in the Rojnamcha Ex.P/15. Thereafter, PW-8 Prabhu Singh alongwith raiding party consisting of PW-4 Raghunathram, PW-5 Hanumanram, PW-3 Roop Singh proceeded in a Government Jeep towards the spot and reached near Sarwari Bus Stand frbm where two motbirs, namely, PW-6 Kan Singh and PW-11 Shaitan Singh were taken and made Nakabandi and at about 5.00 AM, one Suzuki Motor-cycle bearing No. RNM 8071 on which three persons were sitting, came from the side of Kalyanpur and seeing that motor cycle, PW-8 Prabhu Singh gave hint to stop the motor cycle, but seeing the police, they accelerated the speed of the motor-cycle, but since it was running in high speed, it was slipped near the Babul tree, where PW-2 Mangilal and Dalveer Singh were standing and they stopped the motor-cycle, but out of three persons, two escaped and one was caught hold and on being asked he told his name as Thana Ram (present accused-appellant). Thereafter, accused-appellant was given notice Ex.P /6 under section 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and he gave his consent that he should be searched before the Magistrate and upon which, PW-15 Ghasiram, Tehsildar, Pachadpara was called upon through PW-4 Raghunathram and then PW-15 Ghasiram came there and then, search was made and from the motor-cycle, a bag was recovered and it was opened and two polythene bags containing brown-black colour substance were found in it and on being tasted, it was assessed that it was nothing, but milk of opium and the accused-appellant was not having a valid license to keep that milk of opium. Thereafter, it was weighed and in one polythene bag, 2,500/- kgs. milk of opium was found, out of which, two samples of 30 grms. each were taken for the purpose of sending them for chemical examination and sealed separately on the spot and marked as A and Al and rest milk of opium was also sealed on the spot separately. In the second polythene bag, 3500 kgs. milk of opium was found and out of which, two samples of 30 grms, each were taken and sealed separately on the spot and marked as B and B1 and the remaining milk of opium was also sealed separately on the spot. The fard of search and seizure was prepared on the spot by PW-8 Prabhu Singh and the same is Ex.P/8. The accused-appellant was arrested through arrest memo Ex.P /9. Through fard Ex.P/11, the motor cycle in question was seized. The fard of specimen impression of seal is Ex.P /12. The notices which were given to both motbirs PW-6 Kan Singh and PW-11 Shaitan Singh are Ex.P /5 and Ex.P/17 respectively. A detailed report for compliance of Section 57 of the NDPS Act was sent by PW-8 Prabhu Singh to SP Barmer and the same is Ex.P /20. PW-8 Prabhu Singh chalked out regular FIR Ex.P/19. The notices which were given to both motbirs PW-6 Kan Singh and PW-11 Shaitan Singh are Ex.P /5 and Ex.P/17 respectively. A detailed report for compliance of Section 57 of the NDPS Act was sent by PW-8 Prabhu Singh to SP Barmer and the same is Ex.P /20. PW-8 Prabhu Singh chalked out regular FIR Ex.P/19. Thereafter, PW-8 Prabhu Singh handed over the seized articles and samples to PW-4 Raghunathram, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/5-A. Thereafter, two samples were given to PW-3 Roop Singh for depositing them in the FSL and PW-3 Roop Singh after obtaining forwarding letter Ex.P/ 3 from SP Office, Barmer deposited the samples in the FSL, Jaipur and obtained receipt Ex.P/4. The FSL report is Ex.P/21, where it was reported that 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 4.18% (four point one eight percent) morphine and 4.93% (Four point nine three percent) morphine respectively. After usual investigation, the police submitted challan against the accused-appellant in the Court of Special Judge, NDPS Cases, Jodhpur. On 16.12.1998, the learned Special Judge, NDPS Cases, Jodhpur framed charge, against the accused-appellant for the offence under section 8/18 of the NDPS Act. The charge was read over and explained to the accused-appellant. The accused-appellant pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 15 witnesses and got exhibited several documents. Thereafter, the statement of accused-appellant under section 313 Cr.P.C. was recorded. In defence, two witnesses were produced by the accused-appellant. After conclusion of trial, the learned Special Judge, NDPS Cases, Jodhpur through his judgment and order dated 08.08.2000 convicted the accused-appellant for the offence under section 8/18 of the NDPS Act and sentenced him in the manner as indicated above holding interalia that the prosecution has proved its case beyond all reasonable doubt against the accused-appellant for the offence under section 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 08.08.2000 passed by the learned Special Judge, NDPS Cases, Jodhpur, the accused-appellant has preferred this appeal. 3. In this appeal, the learned counsel for the accused-appellant has raised the following two main contentions : 1. Aggrieved from the said judgment and order dated 08.08.2000 passed by the learned Special Judge, NDPS Cases, Jodhpur, the accused-appellant has preferred this appeal. 3. In this appeal, the learned counsel for the accused-appellant has raised the following two main contentions : 1. That in this case, the copy of the secret information Ex.P/14, which was reduced into writing by PW-8 Prabhu Singh in compliance of Section 42(1) of the NDPS Act, has not been sent to the immediate official superior, as required by Sub-section (2) of Section 42 of the NDPS Act and thus, compliance of mandatory provisions of Section 42(2) of the NDPS Act has not been made and thus, whole trial stands vitiated. 2. That in the present case, it is an admitted case of the prosecution that on the motor-cycle in question, three persons were sitting and the bag, from which milk of opium was recovered, was lying on the back side of the motor-cycle and it was not in exclusive possession of the present accused-appellant and since two other persons ran away from the scene, therefore, it cannot be said that the accused-appellant was in conscious possession of the bag in question and, therefore, the prosecution has failed to prove that the milk of opium, which was recovered from the motor-cycle, was in exclusive possession of the accused-appellant. Hence, it was prayed that this appeal be allowed and the accused-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 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.Point No. 1. 6. On this point, the case of the learned counsel for the accused-appellant is that since the copy of information Ex.P /14 has not been sent to immediate official superior, as required by Sub-section (2) of Section 42 of the NDPS Act, therefore, there is total non-compliance of mandatory provisions of Section 42(2) of the NDPS Act and on this ground alone, the accused-appellant is entitled to acquittal. 7. Section 42 of the NDPS Act has two aspects : 1. That if the officer has reason to believe from personal knowledge or information given by any person, he shall take down that information in writing; 2. 7. Section 42 of the NDPS Act has two aspects : 1. That if the officer has reason to believe from personal knowledge or information given by any person, he shall take down that information in writing; 2. That for making compliance of Section 42(2), such officer, after taking down that information in writing or recording grounds for his belief under the proviso. to above Section, shall forthwith send a copy thereof to his immediate official superior. 8. There is no dispute on the point that provisions of Section 42 of the NDPS Act, if they are applicable in any case, are mandatory. For that the decisions of the Hon'ble Supreme Court in State of Punjab v. Balbir Singh, 1994 Cr.L.R. (SC) 241 , Mohinder Kumar v. The State Panaji, Goa, AIR 1995 SC 1157 , State of Punjab v. Baldev Singh, AIR 1999 SC 2378 and Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 Cr.L.R. (SC) 373 may be seen. 9. Now it is to be seen whether the compliance of mandatory provision of Section 42(1) & (2) of the NDPS Act has been made in this case or not and for that evidence oral as well as documtnary has to be looked into. 10. From the statement of PW-8 Prabhu Singh, it is very much clear that he received the secret information from mukhbir and that information was reduced into writing by him and the same is Ex.P/14. He has also entered that information in the Rojnamcha and the same is Ex.P/15. 11. Thus, it can be concluded that compliance of mandatory provisions of Section 42(1) of the NDPS Act has been made by PW-8 Prabhu Singh. 12. So far as the compliance of Section 42(2) of the NDPS Act is concerned, PW-8 Prabhu Singh has himself admitted in cross-examination that his immediate official superior was C.O., Balotra and it is also correct to say that he did not send the copy of the secret information Ex.P /14 either to C.O. Balotra or in the office of C.O. 13. In this respect, another witness is PW-10 Phularam. He states that on 29.09.1998 he was Constable in the Police Station Kalyanpur and he was given one closed envelope by PW-8 Prabhu Singh for handing over to SP, Barmer and he gave that envelope to SP, Barmer. But, he admitted that he cannot say what papers that envelope contained. In this respect, another witness is PW-10 Phularam. He states that on 29.09.1998 he was Constable in the Police Station Kalyanpur and he was given one closed envelope by PW-8 Prabhu Singh for handing over to SP, Barmer and he gave that envelope to SP, Barmer. But, he admitted that he cannot say what papers that envelope contained. 14. In the present case, a detailed report Ex.P/20 for compliance of Section 57 of the NDPS Act was also sent by PW-8 Prabhu Singh to SP, Barmer and, therefore, from the statement of PW-10 Phularam, it cannot reasonably be inferred or gathered that the copy of secret information Ex.P /14 was sent to SP, Barmer. Apart from this, PW-8 Prabhu Singh has himself admitted that he did not send the copy of the secret information Ex.P /14 to immediate superior officer. 15. Thus, it is held that compliance of mandatory provisions of Section 42(2) of the NDPS Act has not been made by PW-8 Prabhu Singh and non-compliance of these provisions vitiates the entire trial and the accused-appellant is entitled to acquittal on this ground alone.Point No. 2 16. So far as the point no. 2 is concerned, oral evidence as is found in the statements of prosecution witnesses has to be seen. 17. PW-1 Sawalram is the witness, who was with the raiding party, he states that driver of the motor-cycle in question and the person, who was just sitting behind him, ran away from the scene and the person, who was sitting on the last seat, was caughthold by PW-2 Mangilal and Dalveer Singh and that person is present accused-appellant. He admits the following facts in cross examination:- (1) That when motor-cycle in question fell down, all the three persons, who were sitting on it, also fell down. (2) That it is correct to say that the person, who was driving the motor-cycle and person, who was sitting just behind him, tried their best to take up the bag, in which milk of opium was found, but they failed in their efforts and when PW-2 Mangilal and Dalveer rushed towards them, they ran away leaving the bag in question there. (3) That it is also correct that third person, who is present accused-appellant, did not try to run away from the scene and was standing there and, thereafter, he was apprehended. (3) That it is also correct that third person, who is present accused-appellant, did not try to run away from the scene and was standing there and, thereafter, he was apprehended. (4) That it is also correct to say that on personal search, nothing was recovered from the present accused-appellant. 18. Similar is the statement of PW-2 Mangilal and PW-5 Hanumanram. PW-5 Hanumanram has further admitted that the present accused-appellant was not driving the motor-cycle in question. 19. PW-6 Kan Singh is the motbir witness to fard of search and seizure Ex.P /8. He has stated in examination-in-chief that two persons were chased, but they could not be apprehended by the police and after half an hour, police apprehended the present accused-appellant, who told at that time that he was not one of those persons, who ran away and he was not sitting on the motor cycle. In cross-examination, this witness admits that when two persons ran away, he did not see the present accused-appellant and on being opening dikki, opium was found and the accused-appellant told on the spot that he was not sitting on the motor cycle and seeing crowd, he stood there. 20. PW-8 Prabhu Singh, who conducted the searched and seizure in the present case, states that motor-cycle was being driven by the accused-appellant, though none of the prosecution witnesses states like this. This witness further admits that the persons, who ran away from the scene, tried to take up the bag, in which opium was found, but they failed in their efforts. 21. Another motbir witness PW-11 Shaitan Singh has been declared hostile. 22. PW-15 Ghasiram, who was at the relevant time Tehsildar and reached on the spot, states that it is correct to say that when he asked the present accused-appellant about the opium, he pleaded his ignorance. This witness further admits that he. was informed by PW-8 Prabhu Singh that the driver of the motor cycle and the person, who was just sitting behind him, ran away. He has further admitted that the proceedings pertaining to search and seizure were not conducted by him and in Ex.P /8 at portion G to H, the words that search was conducted by him have been wrongly written. 23. He has further admitted that the proceedings pertaining to search and seizure were not conducted by him and in Ex.P /8 at portion G to H, the words that search was conducted by him have been wrongly written. 23. From the above evidence, the following facts have emerged : (1) That milk of opium in question was recovered from the motor-cycle in question and not from the possession of the present accused-appellant. (2) That on the motor cycle, three persons were sitting and motor-cycle was not being driven by the present accused-appellant, but it was being driven by other person, and when the motor-cycle fell on the ground, they also fell on the ground and the person, who was driving the motor cycle and the person, who was just sitting behind him, ran away from the scene and these two persons tried to take up the bag in which milk of opium was found, but they failed in their efforts and ran away after leaving the bag in question on the spot. (3) That it is also in evidence of so many prosecution witnesses that on the spot, present accused-appellant pleaded his ignorance and from accused-appellant, nothing was recovered. 24. The next point that arises for consideration is whether in the above facts and circumstances can it be said that the milk of opium in question was recovered from the exclusive or conscious possession of the accused-appellant? 25. 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 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) AC 256 and approval by the Hon'ble 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. 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. 26. Section 18 of the NDPS Act provides for punishment for possession or transportation of opium. Possession is made up of two elements; first, 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. 27. 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. 28. Applying the above principles, the present case is being examined. 29. In the present case, as already stated above, nothing was recovered from the possession of the present accused-appellant and the bag in question, in which milk of opium was found, was lying on the motor cycle, on which apart from the present accused-appellant, two more persons were also sitting and the motor-cycle in question was not being driven by the present accused-appellant, but it was being driven by another person and the person, who was driving the motor cycle and the person, who was sitting just behind him ran away from the scene and these two persons tried to take away the bag, in which milk of opium was found, but they failed in their efforts and ran away leaving that bag on the spot. From these facts, the possibility that the bag in question from which milk of opium was recovered, might have exclusively belonged to those two persons, who ran away from the scene and who are not accused in this case, cannot be ruled out as they tried their best to take away that bag but failed in their efforts. From these facts, the possibility that the bag in question from which milk of opium was recovered, might have exclusively belonged to those two persons, who ran away from the scene and who are not accused in this case, cannot be ruled out as they tried their best to take away that bag but failed in their efforts. Under these circumstances, a doubt has arisen whether the bag in question actually belonged to the present accused-appellant or not and merely because he was found sitting on the motorcycle along with two other persons it cannot be inferred that he was having the knowledge that in the dikki, there was bag containing milk of opium and the accused-appellant is entitled to benefit of doubt. Apart from this, the fact that accused-appellant did not try to run away from the scene also goes to show to some extent that he might be innocent. 30. Thus, the prosecution has failed to prove beyond all reasonable doubts that the accused-appellant was owner of bag in question or that it was in his control or domain or he had conscious possession over it. 31. For the reasons stated above, it is held that the prosecution has not been able to prove its case beyond all reasonable doubts against the accused-appellant for the offence under section 8/18 of the NDPS Act and therefore, the findings of the learned Special Judge convicting the present accused-appellant for the said offence are liable to be set aside and this appeal deserves to be allowed and the accused-appellant is entitled to acquittal.Accordingly, this appeal filed by the accused-appellant Thanaram is allowed and the impugned judgment and order dated 08.08.2000 passed by the learned Special Judge, NDPS Cases, Jodhpur 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. *******