JUDGMENT 1. - This appeal has been directed against the judgment of conviction and order of sentence passed by the learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 65/2004 - State v. Jairam dated 4.8.2005 whereby the accused appellant has been convicted u/s. 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act' or 'the NDPS Act') and sentenced for a term of 10 years rigorous imprisonment and also with fine of Rs. 1 Lac, and in default thereof to further undergo one years additional rigorous imprisonment. 2. Briefly stated, the facts giving rise to the prosecution case are that on- 21.9.2004 PW-11 Mangilal, SHO, PS Guda Malani received a source information at 1.30 p.m. in the police station on telephone to the effect that accused Jai Ram s/o Gordhan Ram, by caste Bisnoi, engaged in selling illegal poppy husk, has concealed the contraband material beneath 'Siniya' (stems of plants) and if immediate steps and search is taken, the accused can be apprehended with large quantity of poppy husk. The information was also to the effect that poppy husk can also be found in the Dhani of the accused which situate little ahead of village Nagar towards Sindari side. The distance from the road is approximately 3 to 4 kips and at the right hand side in Katchathe Dhani situate and in its backside Poppy husk is hidden below the bushes. 3. The information being reliable was registered in writing and sent to higher officials. The information was also entered in Rojnamcha Aam at Serial No. 370. The Rojnamcha entry made is Ex.P/21 and copy thereof is Ex.P/21A. A memo Ex.P/22 was also prepared on 21.9.2004 assigning the reasons therein for non-procuring of the search warrant as in procuring the warrant the accused could get an opportunity to remove the contraband material and might escape. The copy of Ex.P/22 was also endorsed to S.P., and C.O., Barmer and after making entries in the Rojnamcha Aam Ex.P/24, SHO PW-11 Mangilal started in Govt. Jeep at about 2.00 p.m. with investigation box and other weighing material like scale, measuring weights etc. alongwith PW-4 ASI Deva Ram, Shivkaran FC 691, Bharu Ram FC 830, Nimba Ram FC 708, Kailash Dan FC 349 to verify the secret information. 4. Jeep at about 2.00 p.m. with investigation box and other weighing material like scale, measuring weights etc. alongwith PW-4 ASI Deva Ram, Shivkaran FC 691, Bharu Ram FC 830, Nimba Ram FC 708, Kailash Dan FC 349 to verify the secret information. 4. At about 2.30 p.m., the raiding party reached near village and on the road two persons namely PW-1 Dheeraram and Jagdish were found. They were asked to witness the proceedings and were intimated about the secret information. They agreed to become witness to the proceedings and thereupon included in the raiding party. The raiding party at about 3.00 p.m. reached at the backside of the field-of accused Jai Ram and found the accused arranging bushes on the ground. Seeing the police party, he got scared and was apprehended by the police. On enquiry, he disclosed his name to be Jai Ram s/o Gordhan Ram, resident of Rawali Nadi. He was also asked as to what was beneath the bushes and he disclosed that there was poppy husk in bags. The Motbirs with the police raiding party were asked to remove the shrubs and on removing them, five bags were found which on opening revealed that the same were containing poppy husk. On weighing the bags, it revealed that each bag was containing 21 kgs of poppy husk. In all the 5 bags, total 105 kgs poppy husk was found. Two samples of 500 grams each from each bag were taken. Thus, in all 10 samples were taken. The samples were seized and sealed in presence of Motbir witnesses. Accused was also given notice u/s. 50 of the NDPS Act for the search and he was also apprised of the right available to him. Accused showed his willingness to be search by the SHO, PW-10. The samples drawn from the bags for sending to FSL were marked as Al to A5 and the control samples were marked 131 to B5. Remaining poppy husk was again filled in the same bags and the bags were sealed and marked. Thereafter, in the search of the person of accused a sum of Rs. 5,025/- were found in his left side pocket of the pant. On asking about the source of getting that amount, he replied that it was the sale price of the poppy husk. The amount was also seized, kept in small packet and sealed. Thereafter, in the search of the person of accused a sum of Rs. 5,025/- were found in his left side pocket of the pant. On asking about the source of getting that amount, he replied that it was the sale price of the poppy husk. The amount was also seized, kept in small packet and sealed. The accused, thereafter was apprised about the offence committed by him and was arrested. 5. The accused alongwith the recovered contraband material, samples etc. was brought to the police station. The recovered material and samples drawn and also the money recovered from his possession was deposited in the Malkhana of police station. The entries Ex.P/15 in this regard were made in the Malkhana Register. A case No. 112/04 was registered u/s. 8/15 of the NDPS Act and regular FIR No. 112/04 was chalked out. Investigation thereafter was conducted by PW-9 Ramchandra, who recorded the statements of the witnesses. The samples for chemical examination were sent by PW-7 Malkhana Incharge Kala Ram HC with PW-8 Girwar Singh, who after obtaining forwarding letter from S.P. Office, deposited the samples in FSL and handed over receipt Ex.P/18 in the police station. FSL Report Ex.P/27 was received, which showed positive test for the presence of chief constituents of opium in the samples. On completion of the usual investigation, challan was submitted in the Court of Special Judge, NDPS Cases, Jodhpur. 6. After hearing on charge, the learned trial Court framed charge u/s. 8/15 of the Act against accused appellant on 5.11.2004. 7. In support of its case, prosecution examined as many as 11 witnesses. After close of the prosecution, in the statement recorded u/s. 313 Cr.P.C., accused stated that he has been falsely involved in the case. It was also stated that on the day of incident he had gone to village Guda MaIani for getting a bona fide certificate. He has further stated that after coming from Guda Malani, he went to the school and after school hours, while he was coming home, PW-4 Deva Ram caught hold of him and asked him about Hukma Ram and Gordhan and thereafter he was taken in the jeep to the police station where a false case was lodged against him. In defence, he examined DW-1 Vardha Ram and DW-2 Narsingh Ram. 8. In defence, he examined DW-1 Vardha Ram and DW-2 Narsingh Ram. 8. The learned trial Court vide its judgment dated 4.8.2005 convicted and sentenced the accused as indicated hereinabove, hence the present appeal has been filed. 9. Heard learned counsel for the parties and perused the material available on record. 10. The learned trial Court found that since the accused was found at the spot arranging bushes on the ground and beneath the bushes there were 5 bags of poppy husk, he was in possession of the contraband material and therefore was liable to be convicted. The learned trial Court also found that when the accused was found with contraband material it was not essential to establish that the place where the contraband material was recovered was in the exclusive possession of the accused appellant. The trial Court, finding the evidence led by the prosecution reliable, convicted the accused appellant. 11. The contention of the learned counsel for accused appellant has been that in the instant case, the prosecution has failed to prove that accused was in possession of the contraband material and the place from where the contraband material is alleged to have been recovered was in exclusive possession of the accused appellant. It has also been contended that even the witnesses of the prosecution have admitted this aspect of the matter that the place of recovery is an open place and anybody can come and go to that place. Even PW-11 Mangilal has not ruled out the possibility of plantation of the poppy husk by someone else at the place where it was recovered. According to the learned counsel, on a question put to him he has replied that he cannot say about anybody else 's having planted the poppy husk in the open field 12. On the other hand, the learned Public Prosecutor has contended that in the present case, on the basis of reliable evidence, the trial Court has found the accused guilty, therefore, the impugned judgment passed by the learned trial Court requires to be upheld. 13. 1 have considered the above submissions made before me. 14. In the instant case, PW-11 Mangilal is the Incharge of the raiding party and at the relevant time he was SHO, Guda Malani. 13. 1 have considered the above submissions made before me. 14. In the instant case, PW-11 Mangilal is the Incharge of the raiding party and at the relevant time he was SHO, Guda Malani. In his statement, he has stated that on 21.9.2004 while he was posted as SHO, Guda Malani, he received a secret information which was registered into writing. The information was to the effect that accused Jai Ram had concealed poppy husk in his field beneath the bushes and in case immediate steps are taken, the same can be recovered. It was also stated that he did not obtain search warrant it might have facilitated the accused to escape. He has recorded the reasons not procuring the warrant and proceeding at the spot. In the way, near village Nagar, he found two persons PW-1 Dheera Ram and PW-2 Jagdish, who were apprised of secret information and their consent was obtained to become witnesses to seizure and when they agreed they were made witnesses. He has also stated that when they reached at the backside of the Dhani of accused Jai Ram, they found that the accused was stacking 'Siniya' one after another. He has stated that when the accused was asked about his name, he stated his name to be Jai Ram and when he was asked what was beneath the bushes, he disclosed that there were bags of poppy husk. Notice for search was given and the accused was also apprised of his right. The accused stated that he was willing to give his search to SHO. When the bushes were removed, it was found that there were 5 bags. Each bag was containing 21 kgs of poppy husk and in the five bags total 105 kgs poppy husk was found. From each bag, two samples of 500 grams were taken, thus, in all 10 samples were taken, which were sealed and marked. The remaining poppy husk was again sealed in the same bags and they were also marked. Accused was arrested and thereafter brought to the police station where a case was registered. In the cross-examination, at page 3, he has stated that he has not seen the accused bringing bags from somewhere else or putting the bags beneath the bushes. The remaining poppy husk was again sealed in the same bags and they were also marked. Accused was arrested and thereafter brought to the police station where a case was registered. In the cross-examination, at page 3, he has stated that he has not seen the accused bringing bags from somewhere else or putting the bags beneath the bushes. It has been admitted that the place from where the recovery was effected was neither the field of accused Jai Ram nor in his name nor it was in the name of the father of the accused. It has been admitted that no contraband material was found in the personal search of the accused. He has also stated that the boys' school was in the near vicinity. He has admitted that during the course of investigation, it was not revealed that it was the accused., who had kept the contraband material at the place from where it was recovered. He has also admitted that no investigation was made by the Investigating Officer from Khinya Ram and Hukma Ram in connection with the field belonging to them. At the bottom of page 3 of his cross-examination, he has stated that the place was open and no boundary was there in the field. It has also been admitted that no other person was found there. He has also stated that he cannot say about the possibility of planting the contraband material at that place by someone else. 15. PW-9, the Investigating Officer Ramchandra, in the cross examination has stated that nobody told him during the course of investigation that Jairam was seen keeping contraband material in the field or taking those contraband material from the field. He has stated that investigation from Patwari was done and it was found that the field was entered in name of Khinya and Hukma, sons of Harji. It has been admitted that the place from where recovery was effected was an open place. 16. PW-4 ASI Deva Ram, one of the members of the raiding party, in his statement, has stated what has been stated by PW-11. In the cross examination, he has stated that no memo was having his signatures but he was present at the spot. He has also admitted that the field from where the recovery was effected was not in the name of accused person. In the cross examination, he has stated that no memo was having his signatures but he was present at the spot. He has also admitted that the field from where the recovery was effected was not in the name of accused person. He has also stated that nobody had seen Jairam either keeping the contraband material bags beneath the bushes or taking away the bags from there to some other place. He has also admitted it to be correct that in the police station it was not stated by him that Jairam was seen arranging the shrubs on the bags. It has been admitted at Page 2 of the cross examination that the place from where the recovery was effected was an open place and anybody could approach it. It has also come in the evidence that there was no boundary in the field. 17. PW-5 is Patwari Dharmendra. He has stated that he never saw Jairam sowing the field and the field was also not in his name. 18. In view of above evidence, one thing which emerges out is that accused was not seen keeping the contraband material beneath the bushes, nor he was seen taking those bags to some other place. It has also come in evidence that the place was open and anybody could approach it. It has also come in evidence that the field from where the recovery is said to have taken place was not of accused Jairam. Thus, it appears that from the place where the recovery was effected was not in the possession of the accused and he was not having the ownership of the place. The place was open then in such circumstances even if the accused was seen putting some bushes in the field then also unless by evidence it is shown that he had knowledge about the poppy husk concealed beneath the bushes and he was present there, till then, in my considered opinion, to presume that he was the person who was having possession of the contraband material recovered and it cannot be said to be a proper appreciation of evidence. The findings of guilt arrived at on the basis of such evidence, as discussed hereinabove, is not legally sustainable. 19. The findings of guilt arrived at on the basis of such evidence, as discussed hereinabove, is not legally sustainable. 19. The learned Court simply relying upon the evidence of the raiding party without considering this aspect of the matter that the field was not in the possession/exclusive possession of accused and further as to whether the accused was having any remote knowledge about the poppy husk kept beneath the bushes, has come to the conclusion that he contravened the provisions of NDPS Act, which in my view cannot be legally justified. Thus, I am of the view that the trial Court has misread the evidence and therefore the findings of guilt recorded against accused appellant deserve to be set aside. 20. The learned counsel has also argued in relation to compliance of Section 42 & 57 of the Act. It has also been submitted that the evidence is also missing in relation to keeping the contraband material intact in the Malkhana and thereafter sending the same to the FSL. Learned Public Prosecutor has submitted that proper compliance has been made. I have carefully considered the above submissions. I find from the statement of PW-11 Mangilal that he after receipt of the secret information reduced the same into writing. A separate memo was also prepared. The entries were made in the Rojnamcha and thereafter he proceeded to the spot alongwith the raiding party. PW-3 Constable Prahlad Ram of Police Station, Guda Malani has stated that on 21.9.2001 he was given secret information in a closed envelop alongwith forwarding letter Ex.P/10 to deliver the same to the S.P., and he after delivering the same to the S.P., obtained his signatures on Ex.P. 10 at place 'A' to 'B'. This witness has further stated that on 22.9.2004 he took a detailed information u/s. 57 of the Act from PW-11 Mangilal, the SHO, Police Station, Guda Malani, which was handed over to the S.P. The witness has proved signatures on Ex.P/11, the copy of the detailed information. The argument of learned counsel regarding non-compliance of the Section 42 & 57 of the Act is not tenable. 21. The link evidence in the case is missing and that makes the case doubtful. It appears that as per prosecution story, PW-7 Kala Ram was the Malkhana Incharge of the Police Station on 21.9.2004. The argument of learned counsel regarding non-compliance of the Section 42 & 57 of the Act is not tenable. 21. The link evidence in the case is missing and that makes the case doubtful. It appears that as per prosecution story, PW-7 Kala Ram was the Malkhana Incharge of the Police Station on 21.9.2004. He has stated that he was given samples of contraband material and the money recovered from the accused for keeping the same in the Malkhana. The entries were made in Ex.P/15, copy of which is Ex.P/15A. He has further stated that on 27.9.2004 samples were given to PW-8 Constable Girwar Singh for depositing the same in the FSL. In the cross examination, this witness has completely changed his version. He has stated that the entries made by him in the Malkhana Register Ex.P/15 are the entries which were made after depositing the contraband material in the police station. He has also stated that it is correct to say that in the Malkhana Register there were no entries of depositing the articles and he cannot say as to when the packets were deposited in the Malkhana. He has also stated that there is interpolation and overwriting in Ex.P/15 and there 86 has been made 85. Thus, from his cross-examination, it appears that whatever he has stated in his examination-in-chief cannot be considered to be a correct statement made by him and it becomes doubtful as to whether he in the capacity as Malkhana Incharge made entries regarding deposit of contraband material. Ex.P/15, copy of which is Ex.P/15A, when perused, indicates that it contains no signatures of this witness, it is only the SHO, who has made entries and it also appears that it was the SHO, who subsequently delivered the same for depositing in the FSL. PW-8 Girwar Singh, Constable No. 930, who has taken the articles for depositing in the FSL, has stated that he took the samples for depositing to the FSL from Mala Ram. He has also stated that the copy of forwarding letter was issued from S.P. Office, Barmer, and he deposited the samples in the FSL, receipt thereof was submitted in the police station. 22. He has also stated that the copy of forwarding letter was issued from S.P. Office, Barmer, and he deposited the samples in the FSL, receipt thereof was submitted in the police station. 22. The above three statements, when seen together, it appears that Kala Ram has stated that SHO gave him the samples and the contraband material recovered from the possession of the accused for making entries in the Malkhana and keeping the contraband material in the Malkhana but in the cross examination he has completely denied it which makes the position doubtful. In the defence evidence, DW-1 Vardha Ram has stated that the police had come to his village while he was grazing the herd and the police recovered the poppy husk from the govt. land lying vacant. DW-2 Narsingh Ram has stated that police asked him as to who had kept the contraband material in the field. The evidence of these two witnesses is of no significance. 23. After carefully considering the entire material on record, I am of the opinion that the prosecution has failed to establish the guilt of the accused for the reason that it has not been able to establish by satisfactory evidence that it was the accused who was in exclusive possession of the contraband material and was involved in selling of poppy husk and he was having knowledge that beneath the bushes poppy husk was concealed. The contraband was not recovered from the exclusive possession of the accused and as such he cannot be held guilty for the offence charged with. 24. The learned trial Court has landed in error by holding the appellant guilty of the offences punishable under section 8/15 of the NDPS Act and in convicting and sentencing him by the unsatisfactory analysis of evidence and erroneous approach without taking into account the the contradictory stands taken by witnesses of the prosecution itself. The learned trial Judge has not considered the evidence in a proper way and without noticing the infirmity on material points, as mentioned in the above discussion, has recorded the finding of conviction against appellant which has resulted in awarding sentence to him. 25. The inevitable conclusion is that the judgment of the trial Court has no legal sanctity and in that view of the matter, the appellant has to be given the benefit of doubt. 26. 25. The inevitable conclusion is that the judgment of the trial Court has no legal sanctity and in that view of the matter, the appellant has to be given the benefit of doubt. 26. In the result, the appeal succeeds, the impugned judgment of conviction and order of sentence dated 4.8.2005 passed by the learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 65/2004 - State v. Jairam is set aside and the accused-appellant is acquitted of the charge u/s. 8/15 of the NDPS Act. He be set at liberty forthwith, if not required for any other case.Appeal allowed. *******