JUDGMENT K.S. Garewal, J.:- On December 5, 2004 at 7.30 PM a truck WB-03-3295 was intercepted by the police in Bajidpur Bhoma, Police Station Sadar Abohar, District Ferozepur. The truck was found to be carrying 80 bags of poppy husk (each bag containing 35 kgs. total quantity 28 quintals). The truck was being driven by Gurdev Singh, Manjit Singh was sitting by his side and Daljit Singh was sitting on the loaded bags of poppy husk. 2. After trial, Gurdev Singh and Manjit Singh were found guilty under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) and sentenced to rigorous imprisonment for 10 years and to pay fine of Rs.1 lac each. Daljit Singh was acquitted. The judgment of the learned Special Judge was pronounced on March 29, 2007. Gurdev Singh filed Crl. Appeal 832 SB of 2007 while Manjit Singh filed Crl. Appeal 872 SB of 2007. The State filed Crl. Appeal 239 DB of 2008 against the acquittal of Daljit Singh. These appeals were placed before the Division Bench and are being decided together. 3. SI Gamdoor Singh (PW-6) was at the relevant time posted at CIA Staff, Abohar. He along with ASI Harjinder Singh (PW-5) and other officials were patrolling in the area of Bajidpur Bhoma in a private jeep. A truck came from the side of the village, driven by Gurdev Singh the truck was signalled to stop. Both Manjit Singh and Daljit Singh were detained. Gurdev Singh belonged to Thuliwal, Barnala while Manjit Singh was from Lopo, Moga. Daljit Singh who was sitting on the loaded bags was also detained. Daljit Singh also belonged to Lopo. When the accused were asked, they consented to be searched by a gazetted officer. Therefore, DSP Narinderpal Singh (PW-2) was contacted through wireless and he also reached the spot. DSP disclosed his identity to the accused and in his presence search was conducted of the truck, which led to the recovery of 80 bags of poppy husk. These bags were taken into possession, after separate samples of 250 grams had been taken. The samples and the bulk were sealed with seals GS and NPS. SI Gamdoor Singh handed over his seal to Baldev Singh (DW-2). Entire case property, alongwith the truck, was taken into possession vide memo Ex. P-3 attested by ASl Harjinder Singh. 4. These bags were taken into possession, after separate samples of 250 grams had been taken. The samples and the bulk were sealed with seals GS and NPS. SI Gamdoor Singh handed over his seal to Baldev Singh (DW-2). Entire case property, alongwith the truck, was taken into possession vide memo Ex. P-3 attested by ASl Harjinder Singh. 4. Thereafter, SI Gamdoor Singh sent a report to the Police Station and the case was registered. On personal search of the accused some currency was recovered. On return to the Police Station, SI Gamdoor Singh produced the accused, alongwith the bulk and the samples, before SI Darshan Singh (PW-3). 5. On December 6, 2004, SI Darshan Singh produced the accused, alongwith the case property, before the learned Magistrate who passed an order directing SI Darshan Singh to keep the case property in the police malkhana. The samples of recovered poppy husk were sent for Chemical Examiner at Chandigarh, who reported that the samples contained poppy heads. After completion of the investigation, the accused were sent up for trial. The accused were charged under Section 15 of the Act. They pleaded not guilty and claimed trial. 6. The main witnesses examined by the prosecution were DSP Narinderpal Singh (PW-2), SI Darshan Singh (PW-3), ASl Harjinder Singh (PW-5) and SI Gamdoor Singh (PW-6). On conclusion of the prosecution evidence, the accused were examined without oath under Section 313 Cr.P.C. They pleaded innocence and false implication and stated that nothing incriminating was recovered from them. 7. The accused were called upon to enter defence, they examined Surjan Singh (DW-1) who testified that Gurdev Singh was his neighbour, he worked as a driver with a truck owner but had left his job and returned to the village. About 2-1/4 years back in the month of Maghar (witness was examined on March 19, 2007), a police party headed by SI Gamdoor Singh had come to Gurdev Singh’s house and taken him away. When Gurdev Singh did not return for 2-3 days, Surjan Singh alongwith Gurdev Singh’s wife had gone to CIA Staff and were informed that he has been arrested in a NDPS case. 8. The accused also examined Baldev Singh (DW-2) of Bajidpur Bhoma who testified that about 2-1/2 years back in the month of Maghar (witness was examined on March 19, 2007) SI Gamdoor Singh had taken 5­-7 persons from Bajidpur Bhoma to CIA Staff. 8. The accused also examined Baldev Singh (DW-2) of Bajidpur Bhoma who testified that about 2-1/2 years back in the month of Maghar (witness was examined on March 19, 2007) SI Gamdoor Singh had taken 5­-7 persons from Bajidpur Bhoma to CIA Staff. The witness went to CIA staff because one of the persons detained was his nephew. SI Gamdoor Singh released some of the detainees but obtained Baldev Singh’s, signatures on blank papers saying that these papers were required for preparing documents for the release of the persons. At that time, the accused were also present at CIA Staff. The witness categorically stated that he had not joined the police party headed by SI Gamdoor Singh. The third witness examined by the accused was HC Surinder Singh (DW-3) of Police Station, Khuian Sarwar, who testified that in July 2004, FIR had been registered under Sections 324/323/34 IPC against SI Gamdoor Singh. 9. The learned Special Judge accepted the prosecution case in its entirety with regard to Gurdev Singh and Manjit Singh and recorded conviction against them. However, he found the prosecution evidence against DaIjit Singh to be doubtful because Daljit Singh may not have known about the contents of the bags loaded on the truck on which he was sitting. The prosecution had not been able to prove in what capacity he was sitting on the bags, therefore, no knowledge, consent or conspiracy could be established between him and the other two accused. The learned Special Judge held that Daljit Singh was not in conscious possession of the contraband and he was accordingly acquitted. 10. The main argument of the learned counsel for the two convicted appellants is that the prosecution had failed to examine the independent witness Baldev Singh who was produced as a defence witness. After sealing the case property, SI Gamdoor Singh had handed over his seal to the above mentioned Baldev Singh, therefore, Baldev Singh was an important witness regarding the sealing of the bags of poppy husk and the bags remaining tamper-proof. Furthermore, no effort was made to track down the owner of the truck, Sukhjinder Singh. It is not difficult to find the owner even if it is bearing a false number, because the real identity of a vehicle can be known from the engine and chassis nos. The police took no steps to do so. Furthermore, no effort was made to track down the owner of the truck, Sukhjinder Singh. It is not difficult to find the owner even if it is bearing a false number, because the real identity of a vehicle can be known from the engine and chassis nos. The police took no steps to do so. An argument was also addressed regarding the failure of the police to follow the procedure for keeping the recovered contraband free from tampering. On the question of possession, it was argued that the presumption of conscious possession cannot be taken against Gurdev Singh and Manjit Singh because they were never given a chance to rebut this presumption by being questioned about it when their statements under Section 313 Cr.P.C. were recorded. 11. We may re-visit the investigation to see the exact sequence which was followed by the Investigating Officer in order to determine the integrity and credibility of the investigation process. The consent memo Ex. P-1 contain signatures of the three accused, thumb impression of Baldev Singh as witness and attestation of DSP Narinderpal Singh. Recovery memo Ex. P-3 likewise has been witnessed by DSP Narinderpal Singh, Baldev Singh and AS1 Harjinder Singh. The joint statement of the three accused conveying their consent for their search by a gazetted officer is Ex.P21. This too has been signed by the three accused and Baldev Singh. The memos regarding the personal searches are Ex. P-14, P-15 and P-16. These too have been thumb marked by Baldev Singh. The memos regarding grounds of arrest are Ex. P-17, P-18 and P-19, but only Daljit Singh’s memo Ex. P-18 is thumb marked by Baldev Singh. The memo regarding arrest of Gurdev Singh and Manjit Singh Ex. P-17 and P-19 did not bear Baldev Singh’s thumb impression indeed these two had been prepared at different times because they are in different hand writing. There is a memo regarding recovery of the registration certificate of the truck WB-03-3295 (Ex. P-20), which is dated December 5, 2004 but its hand writing is entirely different from the hand writing of other documents. 12. The report of the police was sent by SI Gamdoor Singh on December 5, 2004 at 7.30 PM and is Ex. P-22. On its basis, FIR was registered at Police Station, Sadar, Abohar at 8.30 PM. P-20), which is dated December 5, 2004 but its hand writing is entirely different from the hand writing of other documents. 12. The report of the police was sent by SI Gamdoor Singh on December 5, 2004 at 7.30 PM and is Ex. P-22. On its basis, FIR was registered at Police Station, Sadar, Abohar at 8.30 PM. The stage which the investigation had reached when the report was sent can be judged from the report itself. This shows that by the time Ex. P-22 was concluded at 7.30 PM, the accused had been detained, truck had been searched in the presence of DSP Narinderpal Singh, contraband recovered and accused arrested. Therefore, all documents of investigation upto the stage of arrest were prepared before the case was registered at the Police Station vide FIR 172. Strangely, what we find is that recovery memo Ex.P-3, personal search memos Ex.P-14, P-15 and P-16, memos regarding the grounds of arrest. Ex. P-17, P-18 and P-19, recovery memo of RC Ex. P-2 and consent memo Ex. P-21 all bore FIR number at the top. The accused were detained much before 2.30 PM, as this is the time given in report exhibit P-22 as the time when DSP Narinderpal Singh reached the spot to begin the search of the truck. Therefore, the documents prepared before the report was sent at 7.30 PM would not have the number of the FIR emblazoned on them. 13. It has already been described above that Baldev Singh was one of the independent witness who had witnessed most of the steps in the investigation but he had not been examined. Let us now see how the Investigating Officers deposed in Court. 14. DSP Narinderpal Singh had reached the spot at 2.30 PM on the basis of the message from SI Gamdoor Singh. Strangely this witness states that no document of the truck was recovered in his presence from any of the accused. He may be technically right but because he did not sign the recovery memo Ex. P-20. But when he was present supervising the search of the truck he ought to have also searched the accused. If the accused were driving a truck loaded with contraband, could not they also be carrying some contraband on their person for their personal consumption. He may be technically right but because he did not sign the recovery memo Ex. P-20. But when he was present supervising the search of the truck he ought to have also searched the accused. If the accused were driving a truck loaded with contraband, could not they also be carrying some contraband on their person for their personal consumption. Law requires personal search of the accused in the presence of a Gazetted Officer or a Magistrate, if the accused so demands. This is the mandate of the provision of section 50 of the Act. The accused had consented for personal search under Section 50 of the Act. The accused must be presumed to have consented for their personal search but the consent memo that was recorded was for the search of the truck. Why did DSP Narinderpal Singh not conduct personal search of the accused, which what Section 50 of the Act requires. Instead he sought their consent for search of the truck for which no consent of the accused was necessary. Vehicles are searched under Sections 42 and 43 of the Act. There is no requirement for searching a vehicle only after taking the consent of the accused. 15. SI Gamdoor Singh (PW-6) gave a slightly different version when he stated that “all the three accused opted for their search before the Gazetted Officer in the same voice”. On this basis the consent memo Ex. P­ 21 was drawn up and Narinderpal Singh DSP was asked to come. In Ex. P­21 it has been recorded that the accused were informed of their legal right that they may get their search as well as of their truck conducted by SI Gamdoor Singh, or a Gazetted Officer or a Magistrate. Upon this, the three accused in one voice stated that they wanted to get their search as well as the search of their truck conducted from a Gazetted Officer. No personal search of the accused was conducted by DSP Narinderpal Singh even though the accused had consented in this regard. Indeed SI Gamdoor Singh (PW-6) in cross-examination testified that the DSP has neither taken personal search of the three accused nor was the search of the truck conducted by the DSP himself. 16. The credibility of SI Gamdoor Singh was also impeached. Indeed SI Gamdoor Singh (PW-6) in cross-examination testified that the DSP has neither taken personal search of the three accused nor was the search of the truck conducted by the DSP himself. 16. The credibility of SI Gamdoor Singh was also impeached. In cross-examination the witness admitted that when he was SHO, Police Station, Sadar, Fazilka, a case under Section 302 IPC was registered against him regarding the death in custody of an accused person but volunteered that the case had been cancelled. He also admitted that FIR 111 of 2004 was under investigation against him and SI Devinder Singh. This was a case under Sections 342, 343, 365, 367 385, 323, 325, 148, 149 IPC. The witness further admitted that FIR 21 dated 21.1.2005 was registered against him under Section 363, 364-A, 365, 384, 389, 420, 506, 120-B IPC but explained that a cancellation report had been prepared in this case. Lastly, he admitted that when he was SHO, Police Station, Zira, three cases under the Prevention of Corruption Act, NDPS Act and Excise Act were registered against him but explained that these cases are still pending inquiry with the superiors. SI Gamdoor Singh has certainly a “brilliant” record, if not of an Investigator, but as one who has faced many investigations. Perhaps this may qualify him to be an overzealous. Investigator out to please his superiors but an Investigator who was more likely to completely muff up the investigation. This appears to have been the case. 17. Our conclusion is that the important documents/memoranda in this case were not prepared in the proper sequence of the investigation. The recovery memos relating to the recovery of the truck and the poppy husk, personal search memos, grounds of arrest memos, and recovery of the truck’s RC were all prepared before the matter was reported to the police and the case registered. The Investigating Officer had obviously prepared these documents after the case had been registered otherwise how is that the FIR number is written on the top. The Investigating Officer knew that some documents had in fact been written out before the registration of the case. Two of such documents are the refusal to be searched by the Investigating Officer (Ex. P-21) and the consent memo giving consent for search by the DSP (Ex. P-1). In both of these the FIR number has been omitted. The Investigating Officer knew that some documents had in fact been written out before the registration of the case. Two of such documents are the refusal to be searched by the Investigating Officer (Ex. P-21) and the consent memo giving consent for search by the DSP (Ex. P-1). In both of these the FIR number has been omitted. The whole business of asking anyone if he wished to be searched before a Gazetted Officer or a Magistrate for the purpose of search is necessary when his personal search is to be conducted. Search of a truck, or any vehicle or any conveyance is not conducted under Section 50 of the Act but under Sections 42 and 43. Therefore, the consent memos were superfluous and not at all necessary more so when no personal search of the accused was conducted by the DSP. 18. The above glaring defects coupled with the lack of credibility of Sl Gamdoor Singh lead us to the conclusion that the accused persons were arrested and the truck detained under entirely different circumstances which have not been brought forth. The documentation of investigation was done much later at the Police Station. Most of the procedural safeguards were flouted in this case. When the case property was produced before the Judicial Magistrate Ist Class, Abohar, on December 6, 2004, for custody, it was pointed out that there was no space in the Judicial Malkhana at Ferozepur. In that eventuality, the learned Magistrate ordered that the prosecution shall get this fact certified from the Incharge, Judicial Malkhana and then may retain the case property in the Police Malkhana in safe custody under the direct surveillance of an officer, not below the rank of Deputy Superintendent of Police. This is recorded in the order dated December 6, 2004, copy of which is Ex. P-10. This order was recorded on the reverse of the application of Inspector Darshan Singh. DSP Narinderpal Singh (PW-2) did not utter a single word about keeping “the case property under his direct surveillance”. This was the specific direction of the Magistrate which was clearly flouted. 19. For the above reasons, we find that the prosecution has not been able to prove the case against the accused. Appeals filed by both the accused. Gurdev Singh and Manjit Singh are accepted and they are acquitted of the charge. Appeal against acquittal of Daljit Singh is dismissed. 19. For the above reasons, we find that the prosecution has not been able to prove the case against the accused. Appeals filed by both the accused. Gurdev Singh and Manjit Singh are accepted and they are acquitted of the charge. Appeal against acquittal of Daljit Singh is dismissed. The accused shall be released forthwith, if not wanted in any other case. ------------------------