Judgment Virender Singh, J. 1. Appellant Jarnail Singh stands convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act) vide impugned judgment dated 8.5.2000 of learned Additional Sessions Judge, Fatehgarh Sahib and has been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac, in default of payment of fine to further undergo RI for six months. 2. The prosecution story in brief is that on 25.3.1993 Sub Inspector Nazir Singh of Police Station Khamano (PW-4) along with Mohar Singh HC (PW) and other police officials was present at Bus Stand Khamano where he received a secret information to the effect that the appellant was indulging in sale of poppy husk and if a immediate raid is conducted at his house, a huge quantity of bags of poppy husk can be recovered from his possession. On the basis of the secret information, a requa Ex. PD was sent to the concerned Police Station for registration of the case. Formal FIR Ex. PD-1 was then recorded. The police party thereafter left for the house of the appellant. Dial Singh Chowkidar was also joined. The appellant was found present at his house. He was taken into custody and was interrogated. During his interrogation, the appellant suffered a disclosure statement Ex. PE to the effect that he had kept concealed five bags of poppy husk in his cattle shed about which he knew only and could get the same recovered. The said disclosure statement was thumb marked by the appellant and attested by HC Mohan Singh and Dial Singh Chowkidar. Before conducting the search the appellant was asked as to whether he wanted the search to be conducted in the presence of a Gazetted Officer of Police or a Magistrate but he reposed confidence in SI Nazir Singh. His statement Ex. PF was also recorded in this regard. The appellant then led the police party to the place of concealment and got recovered five bags of poppy husk from the disclosed place after removing the toori. All the five bags were containing poppy husk. All the poppy husk were mixed in the courtyard. Out of the entire poppy husk, two samples of 250 grams were taken out by the Investigating Officer. All the five bags were containing poppy husk. All the poppy husk were mixed in the courtyard. Out of the entire poppy husk, two samples of 250 grams were taken out by the Investigating Officer. The remaining poppy husk was then transferred to five bags recovered from the appellant which came to be 35 kgs. each. All the bags were then sealed with the seal bearing impression `NS. The parcel was also sealed with the same seal. The case property was then taken into possession vide recovery memo Ex. PG which was attested by the aforesaid witnesses. Sample chit Ex. P-1 was also prepared at the spot. The seal after use was handed over to HC Mohan Singh. Rough site plan Ex. PH was also prepared at the spot. Personal search of the appellant was conducted vide memo Ex. PJ. The other formalities were also conducted at the spot. The appellant and the case property were then produced before SHO Swaran Singh PW-3 who verified the facts from the appellant. He also put his seal bearing impression `SS on the case property and took the entire case property into possession vide memo Ex. PC which was attested by SI Nazir Singh the Investigating Officer. After completion of the entire investigation, the appellant was challaned. He was consequently charged under Section 15 of the Act. As stated above, he has now suffered conviction. Hence this appeal. 3. The prosecution has produced the following witnesses :- 4. In order to prove the link evidence, HC Malkit Singh PW-1, Constable Lakhbir Singh PW-6 and Constable Gurmit Singh PW-7 have tendered their affidavits Ex. PA, PW6/A and PL respectively. 5. In order to prove the compliance of Section 55 of the Act, the prosecution has examined ASI Nasib Singh PW-2 and SI Swaran Singh PW-3. According to the statement of ASI Nasib Singh, an application Ex. PB was entrusted to him which was signed by SHO (PW-3) for producing the accused, case property and sample parcel before the Ilaqa Magistrate. On the same day he produced the appellant and the case property before the learned Ilaqa Magistrate who verified the same. He further states that the appellant was remanded to police custody and he on return had deposited the case property with MHC Malkit Singh with all the seals intact along with sample seal. On the same day he produced the appellant and the case property before the learned Ilaqa Magistrate who verified the same. He further states that the appellant was remanded to police custody and he on return had deposited the case property with MHC Malkit Singh with all the seals intact along with sample seal. Similarly SI Swaran Singh PW also states that on 25.3.1993, SI Nazir Singh produced before him five bags of poppy husk and two samples of 250 grams each and he after verifying the investigation affixed his own seal having seal impression `SS. He also talks about preparing the production memo Ex. PC. 6. The recovery witnesses are SI Nazir Singh PW-4 and HC Mohan Singh PW-5. SI Nazir Singh is the Investigating Officer also. His investigation is detailed in the preceding paras. HC Mohan Singh also corroborates the statement of Nazir Singh. 7. Chowkidar Dial Singh was, however, given up as having been won over by the appellant. 8. The stand taken by the appellant as emerges from his statement recorded under Section 313 Cr.P.C. is of false implication stating that he was taken away from Mela of Baba Fula Nath held in village Khamano on 23.3.1993 in a drunkard condition in the presence of Mewa Singh Lambardar and the persons and he was subsequently implicated in this case. 9. DW-1 Dial Singh Chowkidar has been produced as defence witness. He states that he had gone to Police Station Khamano for collecting the books regarding Birth and Death from MHC. There he was asked to put his thumb impression on 3-4 blank papers and on asking of the police he did the same. He then states that on 25.3.1993, SI Nazir Singh had never joined him in raiding party to conduct raid of the house of the appellant. 10. I have heard Mr. HS Bhullar, learned counsel for the appellant and Mr. SC Bhardwaj, learned Deputy Advocate General, Punjab. With their assistance I have also gone through the entire record very minutely. 11. Mr. Bhullar attacks the prosecution case submitting that the Disclosure Statement Ex. PE loses its effect on a very simple ground that the police party was already aware of the place of concealment of the contraband (poppy husk) and as such recording of the aforesaid statement is a clever twist. Dwelling upon his arguments, Mr. Bhullar states that even in the ruqa Ex. PE loses its effect on a very simple ground that the police party was already aware of the place of concealment of the contraband (poppy husk) and as such recording of the aforesaid statement is a clever twist. Dwelling upon his arguments, Mr. Bhullar states that even in the ruqa Ex. PD, which is the basis of the registration of the formal FIR, it is very clear that the police party had a specific information as to where the contraband is kept. In this regard, he draws my attention to a particular portion where it is stated that if the room (Tooriwala) is raided, poppy husk can be recovered. The learned counsel contends that once the police party on the basis of the secret information was very much sure about the place of concealment (Tooriwala Kotha) there was no need of recording of any disclosure statement at all and the search could be conducted straight away. The disclosure statement Ex. PE is just an eye wash. All this reflects that the investigation conducted in the case is not honest and fair. The appellant deserves acquittal on this ground. In this regard, Mr. Bhullar relies upon judgments of this Court rendered in Sher Singh v. State of Haryana, 1975 CLR 353 and Balwinder Singh v. State of Punjab, 1999(2) RCR(Crl.) 786 (relevant para No. 10). 12. The learned counsel then contends that another fact which emerges from the prosecution evidence, is that all the bags containing poppy husk were lying in front of the door of the Tooriwala Kotha. From this also it can be safely said that the police was aware of the place where the contraband was lying. This infirmity also weakens the effect of so called Disclosure Statement and the entire prosecution case falls on the ground. 13. The learned counsel lastly contends that Chowkidar Dial Singh did not support the case of the prosecution and he rather strengthened the defence of the appellant when stepped into the witness box as defence witness. In the same stress, the learned counsel points out another infirmity in the prosecution case submitting that even the seal was entrusted to HC Mohan Singh despite the fact that independent witness Dial Singh Chowkidar of the village was also with them at the time of effecting recovery. The prosecution has no explanation for the same. In the same stress, the learned counsel points out another infirmity in the prosecution case submitting that even the seal was entrusted to HC Mohan Singh despite the fact that independent witness Dial Singh Chowkidar of the village was also with them at the time of effecting recovery. The prosecution has no explanation for the same. When this weakness is seen in the light of the aforesaid main infirmity, it can very safely be concluded that the case of the prosecution is not free from doubt. 14. On the basis of the aforesaid submissions, the learned counsel prays for acquittal of the appellant. 15. Controverting the submissions advanced by Mr. Bhullar, Mr. Bhardwaj, learned State counsel submits that there is no reason to disbelieve the prosecution witnesses who are consistent on all material aspects. He then contends that may be Dial Singh the independent witness has not come forward in support of the prosecution, the same would not dent the prosecution story for the reason that the recovery allegedly effected in this case is pursuant to disclosure statement made by the appellant as he alone was in the know of the contraband concealed by him. The appellant, thus, has no escape. 16. After giving my thoughtful consideration to all the aspects of the case in hand, in my considered view, the prosecution miserably fails to prove the charge against the appellant. My detailed reasons for arriving at the said conclusion are as under :- The case of the prosecution as set up is that the Investigating Officer received a secret information through a reliable source with regard to lying of poppy husk in the house of the appellant. This information is very specific in all aspects as is clear from the ruqa Ex. PD. For reference the relevant portion from the said ruqa is reproduced as under : "Jithe man SI pas mukhbar khas ne itlah ditti ke masmi Jarnail Singh alias Jellu putar Basta Singh Jatt vassi Khamano Kamli Bhukki Chura Post vechan da dhanda karda hai. Agar hun vee us de makan rehesi atte toori wale kothe par raid keeta jave tan us de kabja vichon kafee matra vich bhooki chura post dian borian bramad ho sakdian han." 17. From the aforesaid information, it is clear that the police party was informed through the secret information that the contraband (chura post) was lying in Tooriwala Kotha. Agar hun vee us de makan rehesi atte toori wale kothe par raid keeta jave tan us de kabja vichon kafee matra vich bhooki chura post dian borian bramad ho sakdian han." 17. From the aforesaid information, it is clear that the police party was informed through the secret information that the contraband (chura post) was lying in Tooriwala Kotha. In the light of the aforesaid factual backdrop, recording of disclosure statement of the appellant at the spot, in my confirmed view, is nothing but a clever move of the Investigating Officer. It has to be discarded. 18. I have seen the case of the prosecution yet from another angle. HC Mohan Singh PW-5 when stepped into witness box has categorically stated that the bags were lying in front of the door of the Tooriwala Kotha. This again shows that there was no need of recording disclosure statement as is done in the instant case. 19. In Balwinder Singhs case (supra), the recovery allegedly effected was in the shape of certain bags pursuant to disclosure statement recorded under Section 27 of the Evidence Act. This Court while disbelieving the prosecution case held that the Investigating Officer without any effort could carry out the search of the bags lying inside the Kotha Toori and even if some chaff was put on the bags, still those bags could be recovered with some amount of search. It was further held that it is strange enough that the Investigating Officer had chosen to record the statement under Section 27 of the Evidence Act and the said story of the prosecution is not digestible and cannot be accepted on the face of it. In the case in hand some-what same is the situation. The poppy husk was lying in Toori Wala Kotha. HC Mohan Singh PW-3 who is one of the star witnesses of the recovery has even stated that it was lying outside Toori Wala Kotha. From this factual position, there remains no doubt in my mind that the disclosure statement recorded under Section 27 of the Evidence Act is of no consequence. This creates suspicion in the mind of the Court with regard to the so-called recovery. 20. From this factual position, there remains no doubt in my mind that the disclosure statement recorded under Section 27 of the Evidence Act is of no consequence. This creates suspicion in the mind of the Court with regard to the so-called recovery. 20. In Sher Singhs case (supra), the appellant was acquitted by this Court observing that recovery of contraband if is possible on a usual search of the premises of the appellant and still the police recovers the same in pursuance of the disclosure statement made by the accused, the said disclosure statement is of no value and the conviction on the basis of the said recovery has to be held un-sustainable. 21. From the aforesaid discussion, one fatual position is crystal clear that the police party had the information and the knowledge of the place where the contraband was kept before it reached the spot. No reliance, thus, can be placed upon the recovery of the contraband effected in pursuance of Disclosure Statement. My view gets strengthened from the judgment of Honble Supreme Court rendered in Krishan Mohan Singh Dugal v. State of Goa, JT 1999(8) SC 115 : 1999(4) RCR(Crl.) 619 (SC). 22. Although the other weaknesses are also pointed out by Mr. Bhullar with regard to the handing over the seal to HC Mohan Singh and not to Dial Singh Chowkidar and this fact also weakens the case of the prosecution yet I do not feel the necessity of entering into detailed discussion on that aspect for the reason that the prosecution case has been doubted by me in its entirety on account of basic infirmity discussed herein above. 23. No other point has been urged before me by either side. 24. As a sequel to the aforesaid discussion, the net conclusion is that the prosecution has not been able to establish the charge of conscious possession of the contraband (poppy husk) qua the appellant to the hilt. I, therefore, while extending the benefit of doubt, set aside the conviction as recorded by the trial Court. The appellant is acquitted of the charge. 25. The appeal is, thus, allowed.