JUDGMENT 1. - Appellant Budhram has filed this appeal against the judgment of conviction and order of sentence dated 23.7.2001 passed by the learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 15/2000, whereby he has been convicted u/s. 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act' or 'the Act') and has been sentenced to 10 years rigorous imprisonment with a fine of Rs. 1 lac, in default thereof to further undergo rigorous imprisonment for two and a half years. 2. The facts giving rise to the present case are that on 29.12.1999 PW-1 SHO Police Station, Sindari started in Govt. Jeep as per instructions of S.P., Barmer alongwith police officials in patrolling duty to check illegal trafficking of wine. The police party reached at Gadeshra Phatak and there they staged Nakabandi. In the night, at about 1.00 a.m., one truck was seen coming from Balotra. Signal was given to the driver of the truck and the truck was stopped. The driver of the truck Budhram tried to run away after opening the gate of the truck but was apprehended. Another person sitting in the truck, opened the door of other side, fled away and could not be apprehended. The Driver of the truck Budhram was asked as to what was there in the truck. He replied that in the truck there was poppy husk. The body of the truck was covered by a black Tarpaulin. On removing a part of Tarpaulin from corner side, in the light of torch when seen, they saw many bags lying in the truck. On touching and feeling, it was found that bags contained poppy husk. Since it was dark, the accused alongwith truck and raiding party came to the police station. PW-3 FC Pemaram was asked to bring weighing measures. Till then C.O. Yadram had come. He was intimated about the entire incident. In all, 71 bags were found loaded in the truck and on weighing them the weight was found about 28 quintals and 14 kgs. From each bag, two samples of 500 grams each were taken and the same were seized, sealed and marked. The remaining poppy husk was refilled in the same bags and they were numbered. The bags were sealed. The entire factual aspect and the proceedings which took place were entered in the Rojnamcha Aam Ex.P/10. From each bag, two samples of 500 grams each were taken and the same were seized, sealed and marked. The remaining poppy husk was refilled in the same bags and they were numbered. The bags were sealed. The entire factual aspect and the proceedings which took place were entered in the Rojnamcha Aam Ex.P/10. On the basis of Rojnamcha report Ex.P/10, FIR Ex.P/11 was chalked out. The samples and recovered contraband material was deposited in the Malkhana. 3. During the course of investigation, PW-8 Chhug Singh, C.I., recorded the statements of witnesses, samples were sent to FSL, Jodhpur after getting a forwarding letter from S.P., Banner Ex.P.9 and prepared road certificate Ex.P/12. Accused was arrested. 4. After investigation, challan was submitted in the Court of Special Judge, NDPS cases, Jodhpur, who after hearing both side, framed charge u/s. 8/15 of the NDPS Act against the accused appellant. Accused denied the charge and claimed trial. In support of its case, prosecution examined as many as 13 witnesses. In the statement recorded u/s. 313 Cr.P.C., the accused denied the prosecution case and stated that no recovery of poppy husk was effected from him. He further stated that he was not aware about the material which was in the truck and said that the owner of the truck was Mana Ram. No evidence in defence was led. 5. The learned trial Court vide impugned judgment and order dated 23.7.2001 convicted and sentenced the accused-appellant as indicated herein- above. 6. Aggrieved by the aforesaid judgment of conviction and order of sentence, the present appeal has been filed. 7. Heard learned counsel for the appellant as well as the learned Public Prosecutor. 8. It was contended by learned counsel that in the present case no independent witness was arranged but two police constables were made motbirs of the case, who are PW-2 Jetha Ram and one Arjun Singh. Only Jetha Ram has been examined and Arjun Singh has not been examined. Learned counsel submitted that in the absence of independent witnesses and also in view of the fact that none of the witnesses has stated that the accused present in the Court was one who was found with the truck, therefore, the story of the prosecution is not proved by satisfactory evidence to connect the accused with the crime. 9. Learned counsel submitted that in the absence of independent witnesses and also in view of the fact that none of the witnesses has stated that the accused present in the Court was one who was found with the truck, therefore, the story of the prosecution is not proved by satisfactory evidence to connect the accused with the crime. 9. On the other hand, learned Public Prosecutor has submitted that accused was caught with the truck and the truck was containing poppy husk and in the absence of independent witnesses, on the basis of evidence available in the present case of police officials, conviction can be passed. 10. 1 have considered the submissions made before me. 11. In the present case, no independent witness has been arranged and the reason which has been stated is that the independent witnesses were not available. PW-1 Fateh Singh in his statement has stated that on 29.12.1999 at about 11.00 p.m. he alongwith other police constables started from the police station and staged Nakabandi near Gadesar Phatak and a truck was seen coming from Sindari Balotra side. The truck was stopped from which One person sitting ran away and the other person found with the truck was accused Budhram. On enquiry being made from him, he disclosed that poppy husk was there in the truck. He has also stated that the truck alongwith the recovered contraband material was brought at the police station and there the bags of poppy husk 71 in number were unloaded and after weighing it was found that the weight of the poppy husk was 28 quintals and 14 kilograms. Two samples of 500 grams each were taken and the same were seized and sealed. He has also stated that the accused were arrested and two police persons namely Jetha Ram, Head Constable and Arjun Ram were made Motbir witnesses. He has also stated that entries in Rojnamcha Aam were made at the police station. The witness has proved entry Ex.P/10 in the register and on the basis of entry made in register, FIR Ex.P/11 was chalked out. He has also stated that subsequently the sealed packets were sent to FSL. In the cross examination, he has stated that he does not know whether at the place where Nakabandi was staged there was colony of Purohits or Bheels. He has also stated that subsequently the sealed packets were sent to FSL. In the cross examination, he has stated that he does not know whether at the place where Nakabandi was staged there was colony of Purohits or Bheels. At page 3 of cross examination, he has stated that he does not have the knowledge of place from where Pema Ram constable brought the weighing measures for the weighing contraband. 12. PW-2 Pema Ram has stated that he was also one of the members of the police party which staged Nakabandi on 29.12.1999 near Gadesara Phatak. The witness has stated that a truck was stopped during the course of Nakabandi and one person driving the truck was found to be Budh Ram. There was one more person who ran away. The truck was containing bags of poppy husk and was covered with Tarpaulin. He stated that accused, truck and recovered contraband material were brought at the police station. In the cross examination, at Page 2 in Para 5, he has stated that he brought the scale, weight measurements etc. in the police station from Aja Ram in his Tata Vehicle 407. 13. A perusal of the statement of above witness clearly indicates that the entire proceedings took place in the police station and there was no independent witness and police persons were made independent witnesses as has come in the evidence of PW-3 Pema Ram that he brought the weight measurements, scale etc. in the police station alongwith two persons in the same vehicle. Thus, it appears that these two persons were available in the police station when the recovered contraband material was being weighed but they were not made witnesses. In cases arising under the provisions of NDPS Act, it is essential that there should be independent motbir witnesses to witness the proceedings. In this case, it appears that the police party conveniently without assigning proper reasons had chosen to keep the police witnesses as motbirs and proceed with the seizure proceedings in the absence of independent witnesses though present in the police statement (sic station) as per the statement of PW-2 Pema Ram (page 2 para 5), then in my considered opinion, the reliability of the prosecution case becomes doubtful. 14. 14. In the case of Nadeem v. State of Rajasthan, 1998 Criminal Law Reporter (Raj.) 392 , this Court has observed that it is essential to call independent witnesses to witness the recovery proceedings. In the absence of independent witnesses, the recovery becomes doubtful. 15. In another case Dilip Kumar v. State of Rajasthan, 1999 WLC (Raj.) 536 , it has been held that in the absence of independent witnesses and particularly in cases where Gazetted Officer is the member of raiding party then it is all the more essential to procure independent, witnesses. The absence thereof makes the prosecution case doubtful. 16. In Smt. Iabal Begum v. State of Rajasthan, 1999 WLC (Raj.) 466 , search was not made in presence of the independent witnesses, the constable sent to bring witnesses was not examined and a receipt for depositing samples in Malkhana was not obtained. The absence of independent witness led to holding that conviction of illiterate lady was not sustainable as the case became doubtful. 17. In view of above authoritative pronouncements of this Court and also taking into consideration this important aspect of the matter that in the instant case no efforts were made and only police persons were made independent witnesses, then the alleged recovery becomes doubtful. 18. The another contention of the learned counsel is that PW-1 Fateh Singh, PW-3 Pema Ram and PW-6 Shivjiram though were the members of raiding party and in whose presence the truck was stopped and the accused was called but none of the witnesses appeared in the Court stated that the accused present in the Court was the one who was caught with the truck. The learned counsel, thus, submitted that the prosecution has not established the fact that the accused was caught with the truck. 19. A perusal of the statements of above witnesses nowhere mentions that the accused Budh Ram present in the Court was the person who was caught with the truck. The learned counsel, thus, submitted that the prosecution has not established the fact that the accused was caught with the truck. 19. A perusal of the statements of above witnesses nowhere mentions that the accused Budh Ram present in the Court was the person who was caught with the truck. In the absence of independent witnesses, it was more essential to have adduced reliable evidence to prove the case which inspire confidence of the Court that the police witnesses were telling truth, PW-2 Jetha Ram, who is said to be the Motbir witness and has stated that on 30.12.1999 while he was posted as Constable in the Police Station, he alongwith Arjun Ram was Motbir and they were given notice and they agreed to witness the proceedings. It has further been stated by him that the truck was searched in their presence and 71 bags of poppy husk weighing about 28 quintals and 40 kilograms were found. Two samples of 500 grams each were taken out from the bags and the same were seized and sealed. This is all the statement of PW-2 Jetha Ram. He has nowhere stated that the accused was there in the police station or the accused was caught with the truck which was containing poppy husk. The witness in the cross examination has admitted that it is correct to say that at the place where Nakabandi was staged there were colonies. The other witness PW-3 Pema Ram has also not identified the accused in the Court. Thus, it appears that in a very casual manner, the witnesses gave their statements in the Court. The accused was not even identified in the Court. The contention of the learned counsel appears to be tenable. 20. Yet another contention of the learned counsel is that the entires made in the Malkhana Register i.e. Ex.P/16A does not make a mention as to on what date the samples were taken out for the purposes of depositing in the FSL. It has further been submitted that it is also doubtful that who was Malkhana incharge on that date. The contention is that the entire proceedings have been conducted at the police station by the police persons at their sweet will. The learned Public Prosecutor submitted that since it was night therefore the entire proceedings took place in the police station. 21. The contention is that the entire proceedings have been conducted at the police station by the police persons at their sweet will. The learned Public Prosecutor submitted that since it was night therefore the entire proceedings took place in the police station. 21. I find the argument of the learned counsel weighty for the reason that seizure proceedings ought to have been conducted at the spot in the presence of independent witnesses but no efforts were made to procure the presence of Motbir witnesses. No memo appears to have been made to show that after making efforts it was not possible to procure independent witnesses. Simply to say that a constable was sent to arrange independent witnesses and he could not find anyone is not enough particularly in the circumstances when no such witness has come forward in the witness box to say that he was directed to bring Motbir witnesses. This creates doubt in the prosecution story and it appears that in an arbitrary manner everything has been done at the police station. A perusal of Ex.P/16, copy of which is Ex.P/16A, only makes a mention that Dhanna Ram LC has deposited the samples in the FSL, Jaipur on 17.1.2000. No entry is available to show. as to on what date the samples were taken out from the Malkhana. Further, no seal impression is affixed on Ex.P/16A. 22. In the present case, recovery memo does not make a mention that specimen seal was prepared. There appears to be a memo prepared in this behalf but it does not contain any signature of accused appellant. Be that as it may, the Malkhana entries made Ex.P/16A definitely require entry of the material taken out from the Malkhana. This also creates doubt in the prosecution case. 23. In view of above discussion, it appears that in the present case, not one but many lacunas are there which create doubt in the prosecution case. It is very significant and important to mention here that in NDPS cases arising out of the provisions of the Act, the punishment is severe therefore it is all the more important to follow the procedure prescribed under the Act and the investigation should be fair so that it may not provide a room to any doubt. It is very significant and important to mention here that in NDPS cases arising out of the provisions of the Act, the punishment is severe therefore it is all the more important to follow the procedure prescribed under the Act and the investigation should be fair so that it may not provide a room to any doubt. It appears that in the instant case proper investigation has not been done and the seizure proceedings conducted by the police by adopting a procedure which was conveniently suited them. Even. police witnesses in deposition before the Court did not identify the accused. The other evidence in relation to sending samples to the FSL in this case also appears not reliable as there are material contradictions in their evidence. 24. The learned trial Court while appreciating the, evidence only on the basis of the alleged recovery made in the case, and as deposed in the Court by the police witnesses that the contraband material was recovered from the truck which was being driven by one Budh Ram, considered the case to be sufficiently proved against the accused appellant. In my considered opinion, the learned trial Court has not properly appreciated the evidence and in fact has misread the evidence. The conviction of accused appellant is not liable to be maintained on such evidence which does not inspire confidence in the mind of the Court. The accused is, thus, liable to be acquitted giving him benefit of doubt. 25. The net result of 'above discussion is that appeal succeeds, the impugned judgment of conviction and order of sentence dated 23.7.2001 passed by the learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 15/2000 - State v. Budh Ram 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. *******