Judgment Chandramauli Kr.Prasad and Anwar Ahmad JJ. 1. Sole appellant; being aggrieved by the judgment and order dated 15.6.2006 passed by the 1st Additional Sessions Judge Cum-Special Judge, Araria in Special Case No. 10 of 1992 (Trial No. 02 of 2005) holding him guilty of offence under Sec. 22 of the Narcotic Drugs and Psychotropic Substances Act and inflicting the punishment of rigorous imprisonment for 12 years and fine of Rs. 1 lack, in default to suffer rigorous imprisonment for two years, has preferred this appeal. 2. Prosecution started on the basis of a complaint filed by P.W.8 Paras Nath. According to him on 14.7.1992, a secret information was received by one Sri Bikash Shrivastav, Inspector of Customs, Forbesganj to the effect that appellant had concealed two packets of heroin in his residental room situated in village Terhi Musahari within Forbesganj Police Station in the district of Araria. According to the allegation, the aforesaid information was received from a coded informer and said Bikash Shrivastav forwarded the same to the concerned authority under registered cover. The information received was found to be authentic and accordingly said Bikash Shrivastav contacted the Superintendent of Customs (Preventive), Farbesganj for constituting a raiding party and for issuance of search warrant to search the house of the appellant Abir Chand Mehta. The raiding party so constituted proceeding to the village on 14.7.1992 and the appellant was found absence from his house. The raiding party was informed by his father, namely, Hari Charan Mehta (another accused, who died during trial) that his son appellant had gone somewhere else. According to the allegation, search was made in presence of two independent witnesses, namely, Keshan Chand Mehta (P.W.1) and Jiyanand Mehta (P.W. 2) and two packets of heroin, inscribed 1 pound on each packet and marked "Heroin, Tiger Head brand, made in Thailand, 1991, 1992, 100% poisonous, 53000", were recovered from the room of appellant. The total weight of heroin found in two packets was 575 grams valued at Rs. 57,50,000/-. According to the allegation one letter addressed to appellant and written by one Chandar of Dharan (Nepal) concealed in between the two packets of heroin wrapped in an English daily newspaper "Hindustan Times", was also recovered. The total weight of heroin found in two packets was 575 grams valued at Rs. 57,50,000/-. According to the allegation one letter addressed to appellant and written by one Chandar of Dharan (Nepal) concealed in between the two packets of heroin wrapped in an English daily newspaper "Hindustan Times", was also recovered. In the opinion of the complainant the aforesaid letter dated 13.7.1992 addressed to appellant Abir Chand Mehta clearly showed that the two packets of heroin were sent to this appellant by one Chander of Dharan (Nepal). Said letter was also seized in presence of the witnesses. 3. The material kept in packets was examined before the appellants father Hari Charan Mehta with the help of kit box, which confirmed that it contained heroin. Four representative samples were drawn from the recovered packets of heroin for chemical analysis and were sealed with the departmental seal in presence of Hari Charan Mehta and the independent witnesses. Packets of heroin and letter dated 13.7.1992 referred to above were seized in presence of the witnesses and Hari Charan Mehta and the seizure list prepared over which Hari Charan Mehta put his thumb impression and the witnesses their signatures. Two samples were sent for chemical analysis and the remaining two packets were kept in the Custom Office at Forbesganj. The Chemical Examiner of Government Opium and Alkaloid Works, Gajipur found the samples to be containing heroin. According to the allegation, the act of smuggling of heroin was within the knowledge of appellants father Hari Charan Mehta and ultimately the appellant and his father were put on trial and charged for commission of offence under Sec. 22 of the Narcotic Drugs and Psychotropic Substance Act on purported allegation that they were found in possession of two packets of heroin weighing 575 grams. Appellants father Hari Charan Mehta died during the trial and by order dated 12.11.1997 his trial had abated. 4. In order to bring home the charge prosecution had examined altogether 9 witnesses, out of whom P.W. 1 Keshri Chand Mehta and P.W. 2 Jeevanand Mehta are witnesses to the seizure and have admitted their signatures on the seizure list. P.W.3 Taleshwar Razak, P.W. 4 Shambhu Nath Pandey, P.W. 6 Ram Janam Singh and P.W. 7 Ram Dayal Choudhary are Constables either of Custom Department or Central Excise and P.W. 5 Azadi Rai is Hawaldar of Customs. P.W.3 Taleshwar Razak, P.W. 4 Shambhu Nath Pandey, P.W. 6 Ram Janam Singh and P.W. 7 Ram Dayal Choudhary are Constables either of Custom Department or Central Excise and P.W. 5 Azadi Rai is Hawaldar of Customs. They have been tendered by prosecution for cross-examination. P.W. 8 Paras Nath is the complainant of the case and in his evidence had stated about the confidential information received that heroin has been kept in the residential house belonging to Hari Charan Mehta and the appellant. He has also deposed about the constitution of the raiding party consisting of P.W. 9 Braj Nandan Sahay; Superintendent, P.W.3 Taleshwar Razak, P.W. 6 Ram Janam Singh and P.W. 7 Ram Dayal Choudhary besides other persons. According to him he proceeded to the village at 12.30 p.m. on a Government vehicle and after reaching the village surrounded the house of the appellant. According to him, while the house was being surrounded, one person fled away from the rear of house who could not be apprehended. In the house, according to this witness Hari Charan Mehta was found present. He was informed that his house is to be searched. According to this witness, a copy of search warrant was given to Hari Charan Mehta in presence of the two witnesses. Thereafter the search was made and from the living room of Hari Charan Mehta two packets of heroin, kept in a basket over Kothi was found. Packets were wrapped in a newspaper. On opening the two packets heroin was found and in between the two packets one letter was also kept. According to this witness the two packets contained the inscription "Made in Thailand, Tiger head brand, 100% poisonous". The two packets were weighed and it contained 575 grams of heroin. A seizure list was prepared which was signed by one Bikash Shrivastav and the Superintendent. Thereafter a panchnama (Ext.2) was also made in presence of two independent witnesses, which was signed by them as also Hari Charan Mehta. The statement of Hari Charan Mehta (Ext. 3) was also recorded. Said Haricharan Mehta was also interrogated by the Superintendent and his statement (Ext. 8) was also recorded. 5. According to this witness four samples from the seized heroin was taken in presence of the witnesses as also Hari Charan Mehta and the balance heroin was sealed and kept in Forbesganj godown of the department. 3) was also recorded. Said Haricharan Mehta was also interrogated by the Superintendent and his statement (Ext. 8) was also recorded. 5. According to this witness four samples from the seized heroin was taken in presence of the witnesses as also Hari Charan Mehta and the balance heroin was sealed and kept in Forbesganj godown of the department. The sample taken was sent for chemical analysis to Government Opium and Alkaloid Works. Gajipur by registered post and report came from there. In paragraph 12 he has stated that he did not make any inquiry as to room in which Hari Charan Mehta used to live. 6. P.W. 9 Braj Nandan Sahay at the relevant time was posted as Superintendent of Custom (Preventive). According to him on the basis of a secret information, the residential house of the appellant was to be searched. He alongwith other members of the raiding party reached the village for search of the residential house of the appellant but he was not found there. He handed over the search warrant to his father, namely, Hari Charan Mehta. According to him, in the south east room of his house in a basket, two packets of heroin with inscription Tiger brand, were found wrapped in a newspaper Hindustan Times. According to him in between the two packets, a letter addressed to the appellant was also found. He has also stated that Hari Charan Mehta was brought before him and his statement (Ext. 8) was recorded. 7. Appellants defence is denial simplicitor and his plea is that in fact heroin was not recovered from his possession. The Trial Court on appraisal of oral as well as the documentary evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly convicted and sentenced the appellant as above. 8. Mr. Parmeshwar Mehta, appearing on behalf of the appellant raises a very short point. He submits that for bringing home the charge, the prosecution has to prove beyond all reasonable doubt that heroin was recovered from the conscious possession of the appellant. He subits that according to the evidence of the prosecution witnesses, themselves, the heroin has been recovered from the living room of his father-Hari Chandra Mehta. In this connection learned Counsel has drawn our attention to the evidence of P.W.8 Paras Nath. He subits that according to the evidence of the prosecution witnesses, themselves, the heroin has been recovered from the living room of his father-Hari Chandra Mehta. In this connection learned Counsel has drawn our attention to the evidence of P.W.8 Paras Nath. In paragraph 3 of his examination-in-chief he has categorically stated that heroin was recovered from the living room of Hari Charan Mehta. Similarly P.W. 9 Braj Nandan Sahay in his evidence has stated that from the room belonging to Hari Charan Mehta the heroin was recovered. Relying on the evidence of aforesaid witnesses, Mr. Mehta points out that prosecution has not been able to prove that recovery was made from the room belonging to this appellant and, as such, his conviction and sentence is fit to be set aside. 9. Mr. Sarvadeo Singh, appearing on behalf of the Union of India, however, submits that the letter recovered in between the two packets of heroin clearly shows that this appellant was dealing with the heroin and, as such, it has to be assumed that it was recovered from his possession. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Madan Lal and another vs. State of Haryana, (2003)7 Supreme Court Cases 465 and our attention has been drawn to paragraph 25 of the judgment which reads as follows: "25. The word "possession" means the legal right to possession (see Heath vs. 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 vs. Eart of Caithness)". 10. Having considered the rival submission, we find substance in the submission of Mr. Mehta. It is relevant here to state that in the complaint filed by P.W. 8 Paras Nath it has been specifically stated that two packets of heroin were recovered from the room of the appellant. However, in his evidence P.W. 8 Paras Nath has clearly stated that it was recovered from the living room of Hari Charan Mehta which is as follows: "Hari Charan Mehta ke kothi ke upar rakha munj ke basket ke niche do packet heroin mila". 11. However, in his evidence P.W. 8 Paras Nath has clearly stated that it was recovered from the living room of Hari Charan Mehta which is as follows: "Hari Charan Mehta ke kothi ke upar rakha munj ke basket ke niche do packet heroin mila". 11. Similarly P.W.9 Braj Nandan Sahay has stated that the search warrant was handed over to Hari Charan Mehta and recovery of heroin was made from south-east room of said Hari Charan Mehta. In the face of the aforesaid evidence, we find it absolutely unsafe to conclude only on the basis of alleged letter said to have been kept in between the two packets of the heroin that recovery was made from the possession of the appellant. We are of the opinion that to bring home the charge the prosecution has to prove beyond all reasonable doubt that heroin was in the conscious possession of the appellant. The evidence on record, do not establish that the heroin was recovered from the concious possession of the appellant. It is not the case of the prosecution that appellant had kept the heroin in the living room of his father, so as to attract the ratio of the Supreme Court in the case of Madan Lal (Supra). It is relevant here to state that the appellant and his father, both were charged for possessing heroin. 12. To put the record straight Mr. Singh has submitted that the confessional statement of Hari Charan Mehta clearly shows that it was this appellant who was dealing with heroin. Accordingly it has to be assumed that it was recovered from his possession. We are of the opinion that the confession of said Hari Charan Mehta shall not be enough to hold appellants conscious possession. 13. In the result, the appeal is allowed, impugned judgment of conviction and sentence is set aside. Appellant is in jail, he shall be set at liberty forthwith, unless required in any other case.