JUDGMENT A.K. Shrivastava, J. 1. The appellant has knocked the door of this Court by preferring an appeal under section 374(2) of the Code of Criminal Procedure, 1973 assailing judgment of conviction and order of sentence dated 25-1-2002 passed by Special Judge (N.D.P.S.), Bhopal in Special Case No. 17 of 2001 convicting appellant under section 8 read with section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'Act') and sentencing him to suffer rigorous imprisonment of ten years and fine of Rs. 1,00,000/- . 2. Facts shorn of unnecessary details lie in narrow compass. On 18-2-2001 an informant gave information at Police Station Hanumanganj that three persons are standing nearby betel shop of one Soni which is located behind Bus Stand. According to the informant these persons came from Rajasthan and are carrying Brown Sugar. This information was reduced in writing in Roznamcha and requisite information as per the law was sent to C.S.P. Thereafter Station Officer Incharge proceeded to the spot and found that three persons were standing nearby betel shop and on being asked their names by Station Officer Incharge they named themselves to be Hajarilal, Babulal and Gulab Chand. Station Officer Incharge gave notice that he is having information that they are having contraband article and, therefore, they may give their search either before Gazetted Officer or Magistrate or they may allow their search by the Station Officer Incharge himself. Those three persons accepted to give their search to the Station Officer Incharge. When the search of appellant was made, beneath his undergarments which was kept in a bag, contraband article appearing to be Brown Sugar was found. Thereafter one Aamir Khan was called and contraband article was weighed and which was found to be 675 grams. One more packet was also seized in which 170 grams of Brown Sugar was found. In total 845 grams Brown Sugar was seized. Out of the bulk of contraband article, two samples of 50 grams each were taken out and they were sealed at the spot. 3. After completing requisite formalities the bulk of contraband article was kept in Malkhana and the samples were sent for examination in the Laboratory at Neemuch. According to the report of Chemical Examiner, contraband articles was found to be heroin (Diacetyl Morphine). 4. 3. After completing requisite formalities the bulk of contraband article was kept in Malkhana and the samples were sent for examination in the Laboratory at Neemuch. According to the report of Chemical Examiner, contraband articles was found to be heroin (Diacetyl Morphine). 4. The investigating agency thereafter submitted the charge-sheet in the Special Court which on examining the charge-sheet, framed charge punishable under section 8 read with section 21 of the Act. Needless to emphasise appellant refuted the charge and requested for trial. 5. In order to prove the charge prosecution examined as many as 9 witnesses and placed Exs. P-I to P-13, the documents on record. 6. The trial Court after appreciating and marshalling the evidence came to hold that the prosecution has successfully proved the charge and eventually convicted the appellant and passed the sentence, which I have mentioned hereinabove. Hence this appeal. 7. I have heard Shri. A. L. Ahirwar, Learned Counsel for the appellant and Shri Ajay Tamrakar, Learned Counsel for the respondent-State. 8. In the present case a notice under section 50 of the Act to search the appellant was given which is Ex. P-3. On going through this document it is revealed the Station Officer Incharge Saleem Khan (P.W. 9), who gave notice has specifically stated that in compliance to section 50 of the Act, before taking search of appellant's bag which was kept nearby him, he informed him that it is his right to be searched either before him or before Gazetted Officer or Magistrate. Thus there is compliance of section 50 of the Act. 9. The question is whether the bag in which contraband article was kept was being possessed by the appellant or not. In this regard it would be fruitful to see the evidence of Station Officer Incharge Saleem Khan (P.W. 9) who after giving notice under section 50 of Act searched the bag of appellant. In his testimony he has specifically said that on the basis of the information received through informant he along with police party arrived at the spot which is a betel shop at the Bus Stand and he found three persons standing there, two of them were carrying bags and on being asked one person stated his name to be Hajarilal, who is appellant. Second person named himself to be Babulal and name of third person could not be written. Second person named himself to be Babulal and name of third person could not be written. This witness stated to them that they are possessing Brown Sugar and they are to be searched, as a result of which Babulal and another person fled from the spot and though they were chased but the attempt was unsuccessful. Thereafter, notice under section 50 of the Act was given to present appellant and it was told to him that the bag which is kept nearby him is to be searched and option was given to him under section 50 of the Act that he may allow his search either before Gazetted Officer or Magistrate or from the Station Officer Incharge himself. According to this witness, appellant gave his consent to be searched by this witness. Thereafter the bag, which was lying nearby him, was searched, in which contraband article was found. The evidence of this witness is very material as it would decide fate of the case. According to this witness, appellant was not carrying the bag with him but the same was lying nearby him. I would like to re-write those few crucial lines which may turn fate of the case :- On going through abovesaid piece of evidence it is clear and is proved from the evidence of this witness that appellant was not carrying the bag and it was only lying nearby him. It be seen that the place of incidence is a betel shop situated at the Bus Stand and it is a matter of common knowledge that a betel shop which is located at the Bus Stand, several persons must be present there. Thus it can hardly be inferred that the bag in which contraband article was kept was of appellant. There is no evidence of this police officer that appellant admitted that the impugned bag is of his. Thus the place of Bus Stand and the betel shop where several persons must be there, it can hardly be inferred that the impugned bag belong to appellant. There is no evidence of this police officer that appellant admitted that the impugned bag is of his. Thus the place of Bus Stand and the betel shop where several persons must be there, it can hardly be inferred that the impugned bag belong to appellant. In similar type of situation the Apex Court in the case of State of Punjab vs. Balkar Singh and another, (2004) 3 SCC 582 has held that merely by being found to be present at the place where the poppy bags were found and the failure to give any satisfactory explanation for being so present did not prove that the accused persons were in possession of the said poppy bags. In the case of Balkar Singh (supra), the bags of poppy were found nearby bridge of Ghaghar river and the accused of that case was sitting on those bags. In that situation, it was held by the Apex Court that it cannot be said that the accused of that case was possessing poppy bags. In that case the Apex Court in para 3 held that the prosecution did not adduce any evidence to show the ownership of poppy husk. The case in hand is rather on better footing. In the present case, the bag was not even being carried by the appellant, as Saleem Khan (P.W. 9) himself says that the bag was lying nearby appellant at the Bus Stand. In the present case there is no evidence that who was the owner of the impugned bag. If a bag which is lying at the Bus Stand nearby a person, it can be hardly inferred that the same belong to a particular person in absence of any cogent evidence in that regard. Thus, according to me, the case of Balkar Singh (supra) is squarely applicable in the present case. 10. The attesting witnesses to Ex. P-3 are Aadesh Sahu (P.W. I) and Santosh (P.W. 2). Aadesh Sahu (P.W. I) has not at all supported the case of the prosecution and he was declared hostile. In his cross-examination also nothing crept out in order to accuse the appellant. Santosh (P.W. 2) is another witness, but according to him, in his presence two bags of two persons were searched. Aadesh Sahu (P.W. I) has not at all supported the case of the prosecution and he was declared hostile. In his cross-examination also nothing crept out in order to accuse the appellant. Santosh (P.W. 2) is another witness, but according to him, in his presence two bags of two persons were searched. Thereafter this witness was declared hostile and in cross-examination by Public Prosecutor the appellant stated that he had committed a wrong and Station Officer Incharge Saleem Khan (P. W.9) may take search of the bag. But, no where it has come in his evidence that appellant was carrying the bag. According to this witness at the spot he was called by the Station Officer Incharge while according to Saleem Khan (P.W. 9) these two witnesses accompanied police party from the police station. Thus there is material discrepancy in the statement of these witnesses which creates heavy doubt. I have already discussed hereinabove that from the evidence of Saleem Khan (P.W. 9) it is not proved that the impugned bag was being carried by appellant or he was having possession of it. Thus, it is not proved that appellant was possessing the contraband article and thereby he committed the offence for which he was charged. 11. Resultantly, this appeal succeeds and is hereby allowed. Conviction of appellant is hereby set aside. He is in jail. He be set at liberty forthwith if not required in any other case.