Judgment ( 1. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 23-12-2003 passed by Special Judge (NDPS), Neemuch in Special Case no. 37/2002, convicting the accused-appellant under Section 8/21,8/15 and 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the act") and sentencing him to suffer R. I. of 6 months and fine of Rs. 10,000/-, in default of payment of fine amount further sentence of 45 days under Section 8/21 (A) of the Act and he has been further sentenced to suffer R. I. of ten years each and fine of rupees one lac each, in default of payment of fine amount further sentence of two years R. I. each under Sections 8/15 (B) and 8/18 (C) of the Act, the appellant has knocked the door of this Court by preferring an appeal under Section 374 (2) of the Code of Criminal Procedure, 1973. ( 2. ) IN brief the case of prosecution is that when Station Officer incharge M. L. Chouhan along with his force was going to investigate Crime No. 53/2000 under Section 382/34, IPC, he received an information from the informant that in Village Garwada the accused-appellant in his Bada (a piece of land encircling dwelling houses) has kept contraband article which is hidden in a heap of grass. Eventually, the Station Officer Incharge proceeded to the spot. As per story of the prosecution the appellant was in side the house and he accompanied the police party to the spot which a Bada. In the Bada police party found poppy straw, on weighing it was found to be 20 kgs. Poppy straw was kept in a gunny bag. Similarly 1. 350 kgs. opium and ammonium chloride and solvent ether were found in a tiffin box. These articles were hidden in the heap of grass. The Station Officer Incharge took out two samples from the bulk of each contraband article and sent them for chemical examination where the FSL confirmed the presence of respective contraband article in the samples. ( 3. ) A charge-sheet was submitted in the Special Court and the Special court on going through it framed charges for offences punishable under sections 8/21, 8/15 and 8/18 of the Act against the accused-appellant. The accused abjured his guilt and pleaded complete innocence. ( 4. ) THEREAFTER prosecution examined its witnesses. ( 3. ) A charge-sheet was submitted in the Special Court and the Special court on going through it framed charges for offences punishable under sections 8/21, 8/15 and 8/18 of the Act against the accused-appellant. The accused abjured his guilt and pleaded complete innocence. ( 4. ) THEREAFTER prosecution examined its witnesses. In his defence the accused-appellant examined two witnesses, namely, Narayanlal (D. W. 1) and k. S. Rathore (D. W. 2 ). The defence of the accused is of alibi. According to him, since at the relevant point of time he was serving on the post of Shiksha Karmi, as such he was administering polio drops to the children ad idem (27-2-2000) at narapura, Tehsil Manasa. ( 5. ) THE Special Court after scanning the evidence came to hold that the appellant did commit the offences for which he was charged and eventually convicted and sentenced which I have mentioned hereinabove. Hence this appeal. ( 6. ) SHRI Vivek Singh, learned Counsel for the appellant has contended that in the present case, prosecution utterly failed to prove conscious possession of appellant on the said Bada. To bolster his contention, learned counsel has invited my attention to the testimony of P. W. 8 A. S. I. Mr. R. R. S. Chauhan and P. W. 9 Inspector Mr. Mangilal. Learned Counsel has also incited my attention to the testimony of P. W. 6 Patwari Bhagwati Prasad and has argued that if the evidence of these 3 witnesses is considered in proper perspective it is difficult to hold rather one cannot say that there was conscious possession of appellant on the said Bada. In support of his contention, learned Counsel has placed reliance on 4 decisions. They are :- (i) Gopal Vs. State of M. R, JT 2001 (10) SC 543. (ii) Ismile Khan Vs. State of Gujarat, 2000 (2) EFR (SC) 6. (iii) Surendra Singh Vs. Union of India, 2004 (3) M. P. H. T. 197 = 2004 (3) MPLJ 15 . (iv) Remgul Vs. State of M. R, 2003 (1) MPLJ 445. It has also been canvassed by the learned Counsel for the appellant that at the relevant point of time appellant was not present at the spot as he was on duty to administer polio drops to innocent children of Village Nayapura of tehsil Manasa. (iv) Remgul Vs. State of M. R, 2003 (1) MPLJ 445. It has also been canvassed by the learned Counsel for the appellant that at the relevant point of time appellant was not present at the spot as he was on duty to administer polio drops to innocent children of Village Nayapura of tehsil Manasa. Learned Counsel has invited my attention to the testimony of narayanlal (D. W. 1) and K. S. Rathore (D. W. 2 ). In this regard, per contra, learned Govt. Advocate has argued in support of the impugned judgment. ( 7. ) AFTER having heard the learned Counsel for the parties, I am of the view, that this appeal deserves to be allowed. ( 8. ) IT be seen that the prosecution has rested its case that Bada is in possession of the appellant and the contraband articles were hidden in the heap of grass in the said Bada. There is no evidence that said Bada is in possession of the appellant. In this regard I may profitably rely Para 10 of the testimony of r. R. S. Chauhan (P. W. 8), who is A. S. I. On going through statement of this witness (Para 10) it is revealed that he himself admitted that the place where contraband articles were seized are accessible to all as it is an open space. There is nothing in the testimony of this witness in order to indicate that the appellant was having conscious possession on the said Bada. Similar type of statement is of P. W. 9 Mangilal, who is Inspector. Paras 38 and 39 of the statement of this witness are quite relevant on the point. At this juncture, it would be condign to peruse Para 4 of the statement of P. W. 6 Patwari Bhagwati Prasad in which he has stated that there is no Bada in the name of present appellant in Village kanjada. Thus, according to me, prosecution has failed to demonstrate by placing cogent and reliable evidence that the Bada from where the alleged contraband articles were seized was being possessed by the appellant or contraband articles were in conscious possession of the appellant. In this context above-said four decisions relied on by the learned Counsel for the appellant are germane. ( 9. In this context above-said four decisions relied on by the learned Counsel for the appellant are germane. ( 9. ) APART from this, there is merit in the contention of the learned counsel for the appellant that at the relevant point of time the appellant was not present at the spot. In this context he has invited my attention to the testimony of D. W. 1 Narayanlal and D. W. 2 K. S. Rathore. Both these persons are Government officials under whom the appellant was working. Both of them in single voice have stated that on the relevant day appellant was assigned the duty to administer polio drops to innocent children of Village Nayapura of tehsil Manasa. It is well settled in law that credence to the evidence of defence witnesses should be given in the same manner as it is being given to prosecution witnesses. Merely the defence has examined witnesses in order to prove that the appellant is innocent, testimony of those witnesses cannot be thrown like waste paper in the dust bin. On going through statements of these witnesses, I am of the view, that their evidence is clear, cogent and trustworthy. Learned govt. Advocate could not point out how and in what manner testimony of these witnesses should be disbelieved. These witnesses are Government officers and on the basis of the record which they were possessing stated that on the ad idem (27-2-2000) appellant was on duty as he was administering polio drops to the children and if that is the position, according to me, since appellant was not present at the spot, whole story of the prosecution becomes doubtful. ( 10. ) ON the basis of aforesaid reasonings I am of the view that the prosecution has utterly failed to prove beyond all possible doubts that the appellant has committed the offence for which he was charged and eventually i have no option except to set aside the impugned judgment. ( 11. ) EX-CONSEQUENT, this appeal is hereby allowed. The conviction of appellant is hereby set aside. The appellant is in jail. He be set at liberty forthwith if not required in any other case. Criminal Appeal allowed.