JUDGMENT 1. - This criminal appeal under section 374 (2) Cr. P.C. is directed against the judgment and order dated 9.11.2000 passed by the learned Special Judge, NDPS Cases, Jhalawar by which the learned Special Judge convicted accused appellant Murli Manohar under section 8/21 of the Narcotic Drugs and Pshychotrophic Substances Act, (for short the "Act") and sentenced him to undergo rigorous imprisonment for ten years with a fine of Rs. one lac, in default of payment of fine, to further undergo rigorous imprisonment for one years. 2. The marital facts of the prosecution case in nut shell giving rise to this instant appeal are as follows: 3. On 28.2.2000 at around 10.15 A.M. PW2 Prem Shankar Meena, SHO Police Station, Aklera received information from informant that one boy of Meena community is standing in the Fair ground, Aklera having smack with him, which was kept in the sat of his Hero Honda Motor Cycle. Having received the information and after reducing it in writing, the SHO along with police officials rushed to the mela ground, he found one boy sitting on a motor cycle and was waiting for some one. On enquiry, the boy disclosed his name as Murli Manohar S/O Kalyan Meena. The SHO then informed him of his right to get his search conducted either in the presence of any gazetted officer or the SHO himself. Thereafter, he conducted search of the appellant and the motor cycle. In the course of search, the SHO recovered brown coloured powder lying in a polythene cover kept beneath the seat cover of motor cycle. On smell it was found to be smack an d that accused himself also admitted it to be smack. On getting it weighed, it was found to be 17 grams and 800 ml-grams. He then took sample of the smack weighing 5 grams and sealed the same. The remaining smack was also sealed in a separate packet. The packets were deposited in the Malkhana. 4. The SHO arrested the accused appellant and prepared memo Ex.P8, and prepared search and seizure memo Ex.P.6. He also seized the motor cycle vide seizure memo Ex.P.7. The SHO then submitted a detailed report, on the basis of which a case vide FIR Ex. P. 10 was registered against the appellant. In the course of investigation, the sample was sent to the Forensic Science Laboratory vide letter Ex. P. 15. He also seized the motor cycle vide seizure memo Ex.P.7. The SHO then submitted a detailed report, on the basis of which a case vide FIR Ex. P. 10 was registered against the appellant. In the course of investigation, the sample was sent to the Forensic Science Laboratory vide letter Ex. P. 15. The report of FSL Ex. P. 14 mentions that on micro-chemical examination, the sample contained in the packet marked a gave positive tests for the presence of diacety-l morphine (heroin). 5. On completion of investigation, the police submitted a charge sheet against the appellant. The learned Special Judge, NDPS Act Cases, Jhalawar framed charge against the accused appellant for offence under section 8/21 of the Act. The appellant denied the charge and claimed trial. In the course of trial, the prosecution, in support of its case, examined as many as 9 witnesses and exhibited some documents. Thereafter, the accused appellant was examined under Section 313 Cr. P.C. In his explanation, the appellant stated that he had no connection with the motor cycle. He was seeing film in the fair. He was called from inside and forcibly took him to the police station. He further stated that no such option was given to him. However, he did not examine any witness in his defence. 6. At the conclusion of trial, the learned Special Judge found the prosecution case, as alleged, proved and accordingly, holding the appellant guilty of the offence under section 8/21 of the Act convicted him of the said offence and sentenced him as aforesaid. Feeling aggrieved by the judgment of conviction and sentence, the appellant has preferred this appeal. 7. I have heard learned counsel for the parties and perused judgment under appeal and the record of the case. 8. Mr. Biri Singh Sinsinwar, learned counsel for the appellant has assailed the conviction mainly on three grounds. The first ground urged by him as that the investigating agency has utterly failed to call independent witnesses as required under the provisions of section 100 of the Criminal Procedure Code. He argued that the place of incident was a fair ground and fair was in progress. Large number of persons were present there to enjoy the fair. There was nothing impracticable for the investigating agency to procure the presence of independent witnesses for the purposes of search and seizure. He argued that the place of incident was a fair ground and fair was in progress. Large number of persons were present there to enjoy the fair. There was nothing impracticable for the investigating agency to procure the presence of independent witnesses for the purposes of search and seizure. A casual statement was mentioned by Constable Bhanwar Lal that none was prepared to witness the search and seizure on account of fear of the accused. Curiously enough, according 'to the learned counsel, the Constable Bhanwar Lal was not examined in evidence by the prosecution. In this back-ground, learned counsel argued that the investigation cannot be said to be free from doubt. 9. I have considered the above submission. As per the prosecution case, the search and seizure was conducted in a public place and the appellant did not exercise option of being searched in the presence of a Gazetted Officer and volunteered to be searched by the SHO himself. Section 51 of the Act deals with the application of provisions of Criminal Procedure Code to all warrants issued and arrests, searches and seizures made under this Act. To proceed further, it would be appropriate to refer to the provisions of Section 51 of the Act, which read as under:- "51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrest s searches and seizures,-The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. 10. The provisions of Criminal Procedure Code are made applicable by section 51 of the Act in so far as they are not inconsistent with the provisions of the Act, to all warrar its issued and arrests, searches and seizures made under this Act. 11. 10. The provisions of Criminal Procedure Code are made applicable by section 51 of the Act in so far as they are not inconsistent with the provisions of the Act, to all warrar its issued and arrests, searches and seizures made under this Act. 11. Sub-section (4) of Section 100 of the Criminal Procedure Code provides thus: "(4) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or any of other locality, if no such in habitant 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." 12. Sub-section (8) of Section 100 Cr. P.C. provides that any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code. 13. In the case in hand, as per the prosecution, the appellant was nabbed in a busy area i.e. the Mela ground of village Aklera. From the record of the case it appears that no independent witness was present at the time of search and the explanation given was that Constable Bhanwar Lal was directed vide Ex.P5 to procure independent witnesses. Bhanwar Lal in turn, explained that he requested the persons but they declined to co-operate due to terror of accused and he endorsed this fact on Ex.P5. However, the prosecution failed to examine Bhanwar Lal in evidence. 14. The seizure and arrest of the appellant have been made under the provisions of section 43 of the Act. Having scrutinised the evidence on record, it appears that PW 2 Prem Shanker, SHO, PW 4 Satyaveer Singh, Constable, PW 5 Jahid AM Constable and PW 8 Yaswant Constable have categorically admitted that at the time of search of motor cycle and seizure of contraband, the motor cycle was found to be stationed in front of two touring talkies. These witnesses have also admitted that movies were exhibited in the touring talkies. These witnesses have also admitted that movies were exhibited in the touring talkies. It has also come in evidence that the persons were busy in making purchases from the shops in the fair. It was a public place and the persons attending the Mela were moving on the thoroughfare. It has also come in evidence that the accused appellant was not a resident of Aklera. Therefore, in the light of the evidence discussed above, it stands established that number of persons were available on the spot to witness the search and seizure. The explanation offered by the prosecution for no-cooperation by the persons present on the spot, viz., the terror of the appellant, is not at all convincing for the obvious reason that neither the accused was known to the persons present in the fair as he not being a resident of Aklera nor there is anything to suggest that the appellant had criminal record to his credit. PW 8 Yaswant could not be able to affirmatively state that some criminal case was pending against the accused appellant in Aklera. On the contrary, the witness pleaded his ignorance to this fact. 15. From the discussions made above, I have no hesitation to conclude that the investigating agency deliberately ignored the compliance of the provisions of the Act, which the legislature has deliberately incorporated to afford safeguard to the innocent persons, keeping in view the nature of punishment provided for the offence. It may be observed that the provision made in section 100(4) Cr. P.C. is a salutary safeguard to ensure the sanctity of the search conducted by the Police Officers. In the present case, neither the name of such witness, to whom said Shri Bhanwar Lal Constable asked to witness the seizure and who declined to do so, has been mentioned in Ex.P5 nor said Bhanwar Lal has been examined in evidence to disclose the names of such persons. This shows that witnesses were very much available but they were not associated with the search/Obviously, therefore, there is deliberate attempt to defeat the legislative safeguard and it has caused serious prejudice to the appellant. This also leads me to the conclusion that the recovery of smack, as alleged by the prosecution is not free from doubt. 16. It is next contended by Mr. This also leads me to the conclusion that the recovery of smack, as alleged by the prosecution is not free from doubt. 16. It is next contended by Mr. Biri Singh that the motor cycle, bearing No. MP 04-5307 which was seized by the police was in the name of one Vimal Kumar as would appear from the Form of Certificate of Registration, Ex.P.23. He contended that there is no evidence on record to show that the said motor cycle was ever transferred in the name of the appellant. Neither Vimal Kumar in whose name the registration of vehicle exists nor Alam Khan, who according to the prosecution case purchased the said vehicle from Vimal Kumar have been produced in evidence. According to the learned counsel, in any case the appellant had nothing to do with the motor cycle seized by the police in the instant case and unless it is proved that the appellant is the registered owner of the motor cycle and was in exclusive possession of the same at the time of seizure, the appellant cannot be connected with the recovery of contraband from beneath the seat cover of motor cycle and on this score alone, the appellant deserves to be acquitted. 17. In appreciating the above arguments, I have scanned the relevant evidence. PVV6 Omkar Singh who conducted investigation and recorded the statements of Alam Khan, Kalyan and Badri Lal under Section 161 Cr. P.C. and collected the sale letters Ex.P.20, 21 and 22, has categorically stated that registered owner of the motor cycle seized in the case is Vimal Kumar, but he could not trace him out. It does not transpire from the record that Vimal Kumar sold the motor cycle to any-one and the registration certificate, Ex.D.23 still stands in his name. The prosecution has not examined Naseeb Khan, Alam Khan and Vimal Kumar. 18. From the evidence and material on record, the admitted position that emerges out is that accused appellant had never been the owner of the motor cycle in question. Similarly, there is no evidence worth the name to suggest that the registered owner Vimal Kumar ever sold this motor cycle to any one. In these circumstances, the alleged sale of motor cycle to Alarm, Kalyan, Naseev and Badri and the fact that Badri handed over the motor cycle to the accused appellant on his request becomes highly doubtful. Similarly, there is no evidence worth the name to suggest that the registered owner Vimal Kumar ever sold this motor cycle to any one. In these circumstances, the alleged sale of motor cycle to Alarm, Kalyan, Naseev and Badri and the fact that Badri handed over the motor cycle to the accused appellant on his request becomes highly doubtful. However, the evidence of the prosecution witnesses that they found the accused sitting over the motor cycle which was stationed at a open place is not sufficient to conclude that recovered contraband lying beneath the seat cover of motor cycle, was with the exclusive and conscious possession of the appellant. 19. Lastly, it has been contended by the learned counsel for the appellant that there are material discrepancies in the statements of witnesses in respect of recovery of contraband, seizure and deposit of the same in the Malkhana. Referring to the documentary evidence viz., Ex.P1-A, P2-A P@ and P5, he argued that there is interpolation in the entry and the letters and therefore no reliance can be placed on the recovery of smack. 20. PW 1 Rattan Singh, Malkhana Incharge has admitted in his statement before the court that there is no seal impression on the Malkhana register Ex.P1, which was used to seal the contraband. The witness further admitted that Ex.Pl-A a copy of the original Malkhana Register was submitted with the charge sheet, but the endorsement as regards the time viz., 12.15' night between the place 'X' to 'Y' on Ex.P1 did not find place on Ex.Pl-A. He has admitted that above endorsement on Ex. PI was made after the submission of charge sheet in the Court. 21. PW 2 Prem Shanker SHO has stated that after search, seizure, arrest of the accused appellant and on completion of required formalities on the spot, he along with his staff members, accused and the recovered contraband returned to the police station and made entry Ex.P.9 in the Rojnamcha and the copy whereof is Ex.P9-A, which shows that entry No. 1190 was made on 29.2.2000 at 11.15 AM. It appears that PW 2 Prem Shanker reached at the Police Station at 11.15 AM, whereas, Ex. P. 1 shows that the contraband was deposited in the Malkhana on 29.2.2000 at 12.15 in the night. It appears that PW 2 Prem Shanker reached at the Police Station at 11.15 AM, whereas, Ex. P. 1 shows that the contraband was deposited in the Malkhana on 29.2.2000 at 12.15 in the night. It is thus evident That the above entry with respect to time of depositing the contraband was made subsequently, i.e. after the charge sheet was submitted in the Court. 22. It may also be noted that Prem Shanker, SHO recorded the information of informant in the Rojnamcha at SI. No. 1187 on 28.2.2000 at 10.15 AM. The original entry is Ex.P2 and its copy is Ex.P2-A. From a perusal it appears that Ex.P2-A bears the signatures of Prem Shanker and Ramraj, whereas, these signatures do not find place in the original entry Ex.P2. Prem Shanker has admitted this fact in his statement before the Court. 23. Similarly, Ex.D2 is the carbon copy of Ex.P5, the requisition issued by the SHO to Constable Bhanwar Lal Ex.D.2 did not bear the signatures of SHO, whereas Ex.P5 bears the signatures of SHO. PW8 Yaswant Singh has admitted this fact situation. 24. In the circumstances aforesaid, 1 find must substance in the argument of learned counsel for the appellant that there was interpolation in the documents, which makes the prosecution story suspicious. 25. The net out come of the discussions made above is that (i) there was deliberate attempt on the part of the prosecution to defeat the legislative safeguard, inasmuch as it has failed to make strict compliance of the mandatory provisions of the Act in respect of seizure of contraband in the absence of independent witnesses though very much present at the place namely the Mela ground; (ii) the prosecution has not been able to establish beyond doubt the exclusive and conscious possession of the appellant over motor cycle and contraband in question, and (iii) there are material discrepancies in the prosecution evidence. Since the prosecution has not been able to establish its case on these three counts, the conviction of the appellant cannot be sustained and the judgment under appeal deserves to be set aside 26. There is no other material to establish guilt of the accused. 27. In the result, the appeal is allowed, the judgment of the trial court is set aside and the appellant is acquitted of the offence charged with. There is no other material to establish guilt of the accused. 27. In the result, the appeal is allowed, the judgment of the trial court is set aside and the appellant is acquitted of the offence charged with. The appellant is in jail and he be released forthwith, if not required in any other case.Appeal allowed. *******