Judgment Mehtab S.Gill, J. 1. Crl. Misc. No. 13112 of 2005 Crl. Misc. Application is allowed. Memorandum of Arguments is taken on record. Crl. Appeal No. 721-DB of 2004. This is an appeal against the judgment dated August 16, 2004 passed by Judge Special Court, Bathinda, wherein he has convicted the appellant and sentenced him to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 2,00,000/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for a period of two years for an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). 2. Prosecution version is that on November 25, 1991, Sub-Inspector Bhupinder Singh along with Assistant Sub-Inspector Kaur Singh, Assistant Sub-Inspector Bahadur Singh, Head Constable Sarban Singh and Constable Nirmal Singh were on special naqa in the area of village Ablu. They were present in an official Gypsy driven by Constable Iqbal Singh. PW-Mukhtiar Singh, Member Panchayat of village Balhar Mehma, was joined as an independent witness. A Maruti car bearing No. HR-20D-3065 came from the side of village Ablu. The driver of the car, on seeing the police party, tried to turn the car, but with the help of the police officials, Sub-Inspector Bhupinder Singh over-powered him. The driver of the car disclosed his name as Manoj Kumar @ Mohan son of Vijay Kumar, resident of Hanuman Garh (Rajasthan). On opening the window, the police party saw five gunny bags lying in the back seat of the car. Offer of search was made to the appellant, as to whether he wanted to be searched by a Gazetted Officer or a Magistrate. The appellant stated that he be searched by a Gazetted Officer. Consent memo was prepared on which, appellant Manoj Kumar put his signature. It was attested by Mukhtiar Singh, the independent witness. Wireless message was sent to Police Station Nehianwala. After about one hour, Birj Mohan Sarup, Deputy Superintendent of Police, Bathinda (PW-1) along with his staff, came in his official Gypsy. Brij Mohan Sarup disclosed to the appellant, as to whether he wants to be searched by him or a Magistrate. Appellant reposed confidence in him. Consent memo was again prepared, which was signed by the appellant. The car was searched. Poppy husk was recovered from five gunny bags, each weighing 35 kgs. Brij Mohan Sarup disclosed to the appellant, as to whether he wants to be searched by him or a Magistrate. Appellant reposed confidence in him. Consent memo was again prepared, which was signed by the appellant. The car was searched. Poppy husk was recovered from five gunny bags, each weighing 35 kgs. 200 Grams of poppy husk was taken as sample from each gunny bag. Five samples containing poppy husk were sealed with the seal "BS". The seal after its use, was handed over to Assistant Sub- Inspector Kaur Singh. Personal search of the appellant was done. Currency notes of Rs. 100/- were recovered, which were taken into possession. Ruqa was sent to Police Station Nehianwala to register a case under Section 15 of the Act. 3. Prosecution to prove its case, brought into the witness box Brij Mohan Sarup, Deputy Superintendent of Police (PW-1), Jarnail Singh, Head Constable (PW-2) and Bhupinder Singh, Inspector (PW-3). 4. Learned counsel for the appellant has stated that independent witness Mukhtiar Singh, Panch, was not brought into the witness box. Seal bearing Mark "BS" should not have been handed over to Assistant Sub-Inspector Kaur Singh, but to PW Mukhtiar Singh, the independent witness. From where the weights and weighing scale were brought, it has not been made clear. Link evidence is missing. Samples were not handed over to the Moharrir Head Constable, so that he could keep them in the Malkhana. The Investigating Officer Inspector Bhupinder Singh kept the poppy husk and samples in his custody, so that he could tamper with the evidence. The percentage of narcotic present in the poppy husk, is not mentioned in the Chemical Examiners report, Exhibit PN. The material witnesses Assistant Sub-Inspector Kaur Singh, Constable Iqbal Singh and Constable Nirmal Singh have not been examined. Notification to show that Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) was a Gazetted Officer, has not been put on record. 5. There are glaring discrepancies in the statements of the official witnesses. Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) has stated that the case property was weighed first one by one with spring balance and after that samples were taken out from each bag with small weights, whereas Inspector Bhupinder Singh (PW-3) has stated that 200 grams of poppy husk was separated as sample from each bag and was marked at 1 to 5. Rest of the poppy husk in the bags were weighed and came to 34.800 kgs in each bag. 6. Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) has stated that the spring balance was fixed on the Gypsy of the Investigating Officer, whereas Inspector Bhupinder Singh (PW-3) has stated that the spring balance was put in a stick, which was held by two officials for weighing the poppy husk. Brij Mohan Sarup (PW-1) has stated that there was wheat crop in the nearby fields, which was knee high and was not watered. Water was flowing in the drain from East to West, whereas Inspector Bhupinder Singh (PW-3) has stated that there was wheat crop in the nearby fields, which was of a height less than six inches, but he did not remember whether the wheat crop was watered or not. The drain was lying dry. Further, it has been pointed out that Inspector Bhupinder Singh (PW-3) has stated that the paper work was done by Assistant Sub-Inspector Kaur Singh on the patri of the Sem Nallah, while Brij Mohan Sarup (PW-1) has deposied that memo and almost whole writing work was done by Assistant Sub-Inspector at the spot by sitting on the side of the road. Inspector Bhupinder Singh (PW-3) has deposed that three sample seals were prepared at the spot, whereas Brij Mohan Sarup, Deputy Superintendent of Police (PW1) has deposed that five sample seals were prepared. Inspector Bhupinder Singh (PW-3) has stated that recovery was effected from accused Manoj Kumar in the area of village Balahar Binju, whereas Brij Mohan Sarup, Deputy Superintendent of Police has stated that he along with his staff, reached the revenue limits of village Ablu. Further, Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) has stated that the accused was sitting in the car at that time, while Inspector Bhupinder Singh (PW-3) has stated that when Deputy Superintendent of Police came at the spot, accused was standing outside the car. 7. Seals put on the samples taken, are defective Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) has stated that recovery memo was prepared at 11.15 A.M., whereas Inspector Bhupinder Singh (PW-3) has stated that recovery memo was prepared at 10.45 A.M. Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) has deposed that he reached the spot at 9.30 A.M. 8. Seals put on the samples taken, are defective Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) has stated that recovery memo was prepared at 11.15 A.M., whereas Inspector Bhupinder Singh (PW-3) has stated that recovery memo was prepared at 10.45 A.M. Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) has deposed that he reached the spot at 9.30 A.M. 8. Both Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) and Inspector Bhupinder Singh (PW-3), have admitted this fact that the case property lying in the Court and that one of the bags, is without a seal, while two of the bags are lying torn. 9. Learned counsel for the State has stated that the discrepancies pointed out by the counsel for the appellant are of a minor nature, which do not demolish the credibility of the prosecution witnesses. These discrepancies do occur as recoveries were of the year 1999 and the statements of the witnesses, namely, Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) and Bhupinder Singh, Inspector (PW-3) were recorded on October 23, 2002 and November 27, 2003/December 20, 2003 respectively. 10. As per Section 2(XVIII) of the Act, percentage of narcotic in poppy straw has not been prescribed. As per report of the Assistant Chemical Examiner to Government of Punjab Patiala, Exhibit PN, Morphine and Meconic Acid are present. The contents of all the five samples have been analysed as having "Chura Poppy Heads". Independent witness Mukhtiar Singh has been won over by the accused. In such like cases, this usually happens. Provisions of Sections 42 and 50 of the Act have been complied with. 11. We have heard the learned counsel for the appellant and the State and perused the record with their assistance. 12. Learned counsel for the appellant has laid a lot of stress that independent witness Mukhtiar Singh as not been produced by the prosecution to depose before the Court. Assistant Sub-Inspector Kaur Singh, who had done all the paper work, and Assistant Sub-Inspector Hukam Chand, who are material witnesses, have deliberately been kept away. This argument of the learned counsel for the appellant does not cut any ice. Paper work done by Assistant Sub-Inspector Kaur Singh was done on the instructions of the Investigating Officer Inspector Bhupinder Singh (PW-3). Mukhtiar Singh, the independent witnesses, was not brought into the witness box, as he had been won over by the accused. This argument of the learned counsel for the appellant does not cut any ice. Paper work done by Assistant Sub-Inspector Kaur Singh was done on the instructions of the Investigating Officer Inspector Bhupinder Singh (PW-3). Mukhtiar Singh, the independent witnesses, was not brought into the witness box, as he had been won over by the accused. In such like cases, they are either threatened or monetary inducement is given to them. This has become a normal trend. Independent witnesses, who have got to live in the same village or in the nearby villages of the accused, are, at times, afraid to come and depose in favour of the prosecution. Though in this case, the appellant belongs to Rajasthan, but we cannot lose sight of that such like characters have their contacts with criminals in the States they operate. Discrepancies pointed out by the learned counsel for the appellant are of a minor nature, which do not materially affect the testimony of Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) and Bhupinder Singh, Inspector (PW-3). 13. Link evidence is complete. As per the statement of Bhupinder Singh, Inspector (PW-3), who has stated that he deposited the poppy husk in the Malkhana under his own supervision. Jarnail Singh, Head Constable (PW-2) has stated that he had taken the sample parcels from Sub-Inspector Bhupinder Singh (PW-3). Five samples were handed over to him with one sample seal each. He has filed an affidavit, Exhibit PF, wherein he has sworn that five samples bearing the seal "BS" were handed over to him by Sub-Inspector Bhupinder Singh on December 31, 1999. Directions were given to him that the case property be deposited with the office of Chemical Examiner Laboratory, Patiala, after getting the docket prepared. He had got the docket prepared from the office of Senior Superintendent of Police, Bathinda. The samples along with sample seals was deposited with the office of Chemical Examiner, Patiala on December 30, 1999. He obtained the receipt, which he handed over to Sub Inspector Bhupinder Singh (PW-3). It is clear from the testimony of Jarnail Singh, Head Constable (PW-2); Bhupinder Singh, Sub-Inspector (PW-3) and affidavit, Exhibit PF, that all five samples of poppy husk reached the office of Chemical Examiner, Patiala safely. 14. He obtained the receipt, which he handed over to Sub Inspector Bhupinder Singh (PW-3). It is clear from the testimony of Jarnail Singh, Head Constable (PW-2); Bhupinder Singh, Sub-Inspector (PW-3) and affidavit, Exhibit PF, that all five samples of poppy husk reached the office of Chemical Examiner, Patiala safely. 14. Learned Counsel for the appellant has relied upon judgments rendered in the cases of Girdhari Nath v. The State of Rajasthan through Public Prosecutor, 1998(4) Crimes 347; Paramjit Singh and Angrej Singh v. Union of India, 2001(1) All India Criminal Law Reporter 260; Union of India v. Lalit Baruah and others, 1998(1) Crimes 65 and Mohmmad Hanif Shaikh Ibrahim v. State of Gujarat, 1995(1) Crimes 275 15. In all the citations, referred to above, the Honble Courts have held that the percentage of contents of psychotropic substances is to be given. These judgments do not apply to the case in hand. In first three cases (supra), recoveries were of opium and in last case, recovery was of charas. Appellant, in the present case, has been charged for the recovery of poppy straw. Provisions of Section 2(XVIII) of the Act give the definition of poppy straw, which is reproduced as under :- 2(XVIII) "Poppy straw" means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powered and whether or not juice has been extracted therefrom." 16 It is clear from the above quoted section that the legislature intended not to give the percentage of Psychotropic substance present in poppy straw. The Chemical Examiner, in his report, Exhibit PN, clearly states that the samples sent to the laboratory are poppy straw. 17. The other citations placed on record by the learned counsel for the appellant pertaining to independent witness are Hukmi v. State of Haryana, 2004(1) RCR(Criminal) 934; Sarabjit Singh alias Sarba v. State of Punjab, 1998(1) RCR(Criminal) 348; Mangal Singh v. Punjab State, 1999(3) RCR(Criminal) 373; Prithvi Pal Singh @ Munna v. State, 2001(1) RCR(Criminal) 482; Satnam Singh v. State of Punjab, 1998(2) RCR(Crl.) 219 (P&H) : 1997 Crl. LJ 2067; Joginder Singh v. State of Punjab, 1997(1) RCR 628 and Jagir Singh v. State of Punjab, 1997(1) RCR 9. 18. These citations do not apply to the case in hand as the sole independent witness, as discussed already, was won over by the accused. 19. LJ 2067; Joginder Singh v. State of Punjab, 1997(1) RCR 628 and Jagir Singh v. State of Punjab, 1997(1) RCR 9. 18. These citations do not apply to the case in hand as the sole independent witness, as discussed already, was won over by the accused. 19. Learned counsel for the State has placed reliance on a judgment of the Honble Supreme Court rendered in Madan Lal and another v. State of H.P., 2003(4) RCR(Crl.) 100 (SC) : 2003 SCC (Criminal) 1664, wherein the Honble Supreme Court in its paras 22, 24 and 25 has observed as under :- "22 :- The expression "Possession" is a polymorphous term which assumed different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja to work out a completely logical and precise definition of "Possession" uniformally applicable to all situations in the context of all statutes." "24 :- As noted in Gunwantlal v. State of M.P. possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control." "25 :- The word "possession" means the legal right to possession (see Heath v. Drown). In an interesting case it was observed that where a person keeps his firearm in his mothers flat which is safer than his own home, he must be considered to be in possession of the same (See Sullivan v. Earl of Caithness)." 20 It is clear from the citation (supra) that the appellant was in conscious possession of the contraband. Provisions of Section 50 of the Act were complied with. An offer was made to the appellant by the Investigating Officer Inspector Bhupinder Singh (PW-3). Brij Mohan Sarup Deputy Superintendent of Police (PW-1) was called to the spot. Investigating Officer Inspector Bhupinder Singh (PW-3) had gone through the procedure of search and seizure and also of handing over the report to his immediate superior officer without any delay, who was Brij Mohan Sarup, Deputy Superintendent of Police, Bathinda (PW-1). Provisions of Section 42 of the Act were also complied with. 21. Investigating Officer Inspector Bhupinder Singh (PW-3) had gone through the procedure of search and seizure and also of handing over the report to his immediate superior officer without any delay, who was Brij Mohan Sarup, Deputy Superintendent of Police, Bathinda (PW-1). Provisions of Section 42 of the Act were also complied with. 21. Argument of the learned counsel for the appellant that the seal of one of the bags was broken and two bags were torn before the case property reached the trial Court, does not carry weight. No suggestion or question was put to the Investigating Officer that the contraband produced in the Court was not the same, which was alleged to have been recovered from the appellant. The contraband was in the Malkhana for a long time i.e., from the year 1999 till it was produced before the trial Court. Wear and tear on the bags had taken place. No suggestion has been put to the official witnesses that the contraband was less in quantity. No suggestion has been put that the seals have been deliberately tampered with. As per the observations recorded above, we do not find any reason to interfere with the orders/judgment dated August 16, 2004 passed by Judge Special Court, Bathinda. Appeal is dismissed.