Judgment Mahesh Grover, J. 1. This is an appeal preferred against judgment dated 8.4.1996 of the Additional Sessions Judge, Amritsar (hereinafter described as `the trial Court) vide which the appellants have been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, `the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- each. In the default of payment of fine, they have been directed to further undergo rigorous imprisonment of one year. 2. The prosecution case is that on 6.4.1992, a mini truck, make Sawraj Mazda, bearing registration No. HR-2-A-3780, was intercepted at about 11.45 a.m. by the police party which was already holding a `naka on the pacca road of Dhottan-Jamarai. It was allegedly being driven by appellant No. 1-Avtar Singh. Appellant No. 2-Alamjit Singh was sitting in the rear portion on the gunny bags. Both of them were made to alight from the truck and a search was conducted. They were asked whether they would get themselves searched before a gazetted officer, but they expressed full faith in Davinder Singh, Assistant Sub Inspector. Accordingly, thirty bags which were lying in the truck, were searched. They were found to be containing poppy husk and the weight of each was found to be 38 kilograms. A sample of 250 grams was taken from each of the bags. All the thirty samples and the gunny bags with remaining poppy husks were separately sealed with the seal bearing letters `DS and were taken into possession vide recovery memo Ex.-PC. The seal, after use, was handed over to Constable-Mela Singh. The vehicle was taken into possession vide memo Ex.-PD and the appellants were arrested as they failed to produce any permit or licence for the recovered contraband. The sized contraband and the appellants were produced before Sub Inspector-Anokh Singh, who was then Station House Officer of Police Station, Sirhali, who verified the facts of the case and affixed his own seal on the samples as well as on the case property. 3. Upon receipt of the report of the Chemical Examiner to the effect that the contraband was poppy husk and on completion of other investigation, a challan was presented against the appellants before the Court of competent jurisdiction. 4. 3. Upon receipt of the report of the Chemical Examiner to the effect that the contraband was poppy husk and on completion of other investigation, a challan was presented against the appellants before the Court of competent jurisdiction. 4. The trial Court charge-sheeted the appellants under Section 15 of the Act to which they pleaded not guilty and claimed trial. 5. The prosecution, in order to establish its case against the appellants, examined as many as five witnesses and tendered the report of the Chemical Examiner in evidence. 6. In their statements recorded under Section 313 of the Cr.P.C., the appellants denied the allegations levelled against them. 7. Appellant No. 1-Avtar Singh took the plea that he was arrested by the police along with other persons from Gandiwind and Raniwala, but nothing was recovered from him and he was illegally detained by the police and thereafter, he was falsely implicated in this case and the recovery was planted on him. 8. Appellant No. 2-Alamjit Singh pleaded that he was a student and was present on the outer gate of the school when he was arrested by the police on 3.4.1992 and nothing was recovered from him. He also stated that he was illegally detained at the police station and later on falsely involved in this case. 9. In support of their pleas, they examined DW-1 Constable Sanjiv Kumar; DW-2 Amarjit Singh; DW-3 Gursewak Singh; DW-4 Bikkar Singh Mann; DW-5 Charan Singh; DW-6 Sawinder Singh and DW-7 Charanjit Singh. 10. The trial Court, after examining the evidence against the appellants, convicted and sentenced them in the manner noticed hereinabove. 11. The foremost contention raised by the learned counsel for the appellants is that the samples were seized on 6.4.1992, whereas the same were sent for chemical analysis on 21.4.1992 and that no explanation is coming forward as to why the same remained with the police for such a long period. He argued that the samples were required to be sent for examination within seventy two hours of their being seized and in view of the fact that the seals remained with the police officials, the possibility of tampering with the samples cannot be ruled out. 12. He argued that the samples were required to be sent for examination within seventy two hours of their being seized and in view of the fact that the seals remained with the police officials, the possibility of tampering with the samples cannot be ruled out. 12. Learned counsel for the appellants further contended that the case property when produced in the Court revealed that the seals on some of the bags wee legible while the seals on some bags were partly broken. On the basis of this, he argued that the factum of the case property having been tampered with cannot be ruled out and, therefore, the benefit of doubt has to be given to the appellants. 13. The next contention raised by the learned counsel for the appellants is that the prosecution has also failed to establish that the appellants were in conscious possession of the contraband and merely because appellant No. 1 was driving the truck and appellant No. 2 was sitting on the bags would not establish the factum of their conscious possession. 14. Lastly, it was contended by the learned counsel for the appellants that appellant No. 2-Alamjit Singh was picked up from outside the school and there is evidence on record to establish this fact which belies the prosecution case totally. 15. On the other hand, learned counsel for the State cotended that the conviction and sentence was perfectly in order as the police had no reason to implicate the appellants falsely. He, however, could not give any explanation as to why the samples were not sent within time and as to how the seals on the case property were found broken at the time when the same was produced in the Court. 16. I have heard the learned counsel for the parties and have perused the record. 17. DW-4 Bikkar Singh Mann, an official from the Punjab School Education Board, Mohali, deposed, on the basis of the official record, that Alamjit Singh son of Gurdial Singh (appellant No. 2) had appeared in the 10+2 examination held in April, 1992 under roll No. 313026 at Sirhali Centre (Guru Gobind Singh Khalsa Senior Secondary School, Sirhali) and that on 3.4.1992, the said Alamjit Singh had appeared in General English paper, whereas he did not appear in the paper of General Punjabi which was to be held on 6.4.1992. 18. 18. DW-6 Sawinder Singh, Principal of G.G.S. Khalsa Senior Secondary School, Sirhali has testified that on 3.4.1992, there was, indeed, English paper of 10+2 Class and around 12.15 p.m., he was present in the school and after some time, he was informed by some students that the police had picked up Alamjit Singh, reason of which was not known to them. 19. Ordinarily, the defence plea raised by appellant No. 2 would have been taken with a pinch of salt, but for the fact that the official of the Punjab School Education Board, who appeared as DW-4 and the Principal of Guru Gobind Singh Khalsa Senior Secondary School Sirhali, who appeared as DW-6 have testified as above, lends some credence to the version given by him. Nothing has been shown from the evidence of DW-4 and DW-6 that they were, in any way, interested in helping appellant No. 2. Their testimony as independent witnesses has remained intact. 20. If the above evidence is to be believed, then it shatters the entire prosecution case which is based on the fact that appellant No. 2 was sitting on the gunny bags in the truck being driven by appellant No. 1. This is not only persuading factor of the innocence of the appellants. 21. Further, the samples, concededly, were taken on 6.4.1992. For no apparent reasons, the same were kept by the police with themselves up to 21.4.1922, the seals were also with them and the consequence of this delay is reflected from the fact that when the case property was produced in the Courts, the seals on some of the bags were partially broken. The prosecution has failed to explain this aspect of the matter completely. 22. The prosecution has also remained unsuccessful to explain that the appellants were in conscious possession of the contraband. 23. In my view, the law laid down in Narain v. State of Haryana, 1997(1) RCR(Criminal) 414; Avtar Singh v. State of Punjab, 2002(4) RCR(Criminal) 180 and Baldev Singh v. State of Punjab, 2005(1) RCR(Criminal) 823 is clearly attracted to the facts of this case. 24. 23. In my view, the law laid down in Narain v. State of Haryana, 1997(1) RCR(Criminal) 414; Avtar Singh v. State of Punjab, 2002(4) RCR(Criminal) 180 and Baldev Singh v. State of Punjab, 2005(1) RCR(Criminal) 823 is clearly attracted to the facts of this case. 24. In Narain v. State of Haryana (supra), this Court observed as under :- "The next point argued by the learned counsel for the appellant was that in the instant case the occurrence took place on 17.7.1992 at 9.00 p.m. and the sample for analysis was handed over to the Forensic Science Laboratory on 28.7.1992 after a lapse of 10 days. In this connection, the learned counsel for the appellant relied on the judgment of a learned Single Judge of this Court delivered in the case of Kuba Ram @ Khuba v. State of Haryana, 1995(3) RCR 316 wherein it was held that unexplained delay in sending the property for analysis to the laboratory caused a dent in the prosecution story. In that case there was delay of 15 days in sending the property for analysis to the laboratory. In the case in hand also, there is no explanation whatsoever for the delay of 10 days in sending the sample for analysis to the Forensic Science Laboratory, Madhuban." 25. In Baldev Singhs case (supra), a learned Single Judge of this Court made the following observations :- "There is yet another staggering circumstance, which has shaken the foundation of the prosecution case to an irreparable extent. In this case, the prosecution has failed to prove all the links starting from seizure of the contraband till the same reached to the office of Chemical Examiner in order to show that seal of the sample remained untempered with throughout. PW-2 SI Balbir Singh has categorically stated that after sealing the sample of the alleged contraband as well as the remaining recovered contraband, the seal was handed over to Piara Singh, the independent witness. But the said witness has not been examined. It is well settled that till the case property has not been dispatched to the office of the Forensic Science Laboratory, the seal should not be available to the prosecuting agency and in absence of such safeguard, the possibility of the seal being tampered with, substance being changed and the containers being re-sealed cannot be ruled out. It is well settled that till the case property has not been dispatched to the office of the Forensic Science Laboratory, the seal should not be available to the prosecuting agency and in absence of such safeguard, the possibility of the seal being tampered with, substance being changed and the containers being re-sealed cannot be ruled out. In the instant case, Form M-29 was prepared on 22.8.1990, on which specimen of the seal was fixed. The said Form was supposed to be deposited with the alleged contraband in the Malkhana, but as per affidavit of HC Gurcharan Singh, Ex. PE, it is not clear that the said form was deposited in the Malkhana on 6.8.1990, when the recovered contraband along with the samples was deposited..." 26. In Avtar Singhs case (supra), their Lordships of the Supreme Court observed as under :- "Possession is the core ingredients to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of Section 2, it is for them to account for such possession satisfactorily, if not, the presumption under Section 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking clue from the decision of this Court in Inder Sain v. State of Punjab, 1983(2) SCC 372 arising under the Opium Act, the learned Trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression of poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW-4 the Head Constable, it is seen that appellant No. 3 (accused No. 4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused Nos. 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW-2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. As soon as the vehicle was stopped by ASI (PW-2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. The word `possession no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together by the minimum requisite element which has to be satisfied in custody or control over the goods. Can it be said on the basis of the evidence available on record, that the three appellants - one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control ? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not be was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under Section 313 Cr.P.C., not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under Section 313 Cr.P.C., not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. This object of examination under Section 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of the Evidence Act nor is it after to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial Court invoked the presumption under Section 54 of the Act without addressing itself to the question of possession. The approach of both the Courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial Court and the High Court. Non- application of mind to the material factors has thus vitiated the judgment under appeal." 27. The above observations of the Apex Court are clearly attracted to the facts of the present case. It was incumbent upon the prosecution to conduct proper investigation to ascertain the role played by each of the appellants and to link them with the contraband. Non- application of mind to the material factors has thus vitiated the judgment under appeal." 27. The above observations of the Apex Court are clearly attracted to the facts of the present case. It was incumbent upon the prosecution to conduct proper investigation to ascertain the role played by each of the appellants and to link them with the contraband. As held by the Supreme Court in the Avtar Singhs case (supra) the possession, in such like cases, is the core ingredients which has to be established before an accused person is held guilty of violating the provisions of Section 15 of the Act. True, if an accused is found in possession of the contraband, then it is for him to account for such possession satisfactorily in order to avoid presumption under Section 54 of the Act. The minimum requisite condition which is required to be satisfied by the prosecution is to establish the custody and control of the goods. However, in the instant case, there is nothing on record to prove the said fact and mere presence of the appellants on the truck cannot give rise to a presumption that they were having custody and control of the contraband placed therein. 28. Considering the facts of the present case in their totality in the light of the law laid down in the aforementioned judgments, it is held that the prosecution has failed to discharge its onus on material aspects of the matter leading to an irresistible conclusion that the appellants were not guilty of the offence as alleged against them. Hence, the appeal is accepted, the impugned judgment is set aside and the appellants are acquitted of the charge levelled against them.