JUDGMENT Harbans Lal, J.:- This judgment will dispose of Criminal Appeal No. 1520 SB of 2005 preferred by Randhir Singh and Criminal Appeal No.1599 SB of 2005 filed by Nishan Singh against the judgment dated 6.7.2005/order of sentence dated 8.7.2005, rendered by the Court of learned Judge, Special Court, Kaithal, whereby he convicted and sentenced both the abovementioned accused/appellants to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1 lac each and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for a period of one year under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the Act’). 2. The factual matrix of the case is that on 18.3.2003, ASI Roop Singh among other police officials including ASI Om Parkash, happened to be present at canal bridge Paharpur in the area of village Sair in connection with picketing in a government vehicle No.HR-08D-7032 driven by EHC Balbir Singh. In the meantime, a TATA-407 bearing registration No.HR­ 20B-1007 came from the side of village Harnola. Roop Singh ASI gave a signal to stop the same for checking. The moment, the vehicle came at halt, the driver of the same managed to escape and he was identified by ASI Om Parkash, who was previously known to him. The aforesaid ASI identified the escapist as Randhir Singh alias Dheera on of Joginder Singh, caste Kamboj resident of village Sair. The other occupant, who was sitting on the conductor side also made an attempt in vain to escape, but he was intercepted. On search of the vehicle, ASI Roop Singh sighted several gunny bags lying in it. Suspecting the same to contain some narcotic substance, accused Nishan Singh was asked to tell whether he wants to have search of the same in the presence of a Gazetted Officer or a Magistrate. He opted the same in the presence of a Gazetted Officer. On receipt of the wireless message, DSP Dharam Pal Singh Dalal came at the spot. In the meantime, Zile Singh Panch and Baljit Singh Panch residents of village Sair and several other people came at the spot. On the directions of the aforesaid DSP, the bags were checked by ASI Roop Singh. The same were found to be 10 in number. In the meantime, Zile Singh Panch and Baljit Singh Panch residents of village Sair and several other people came at the spot. On the directions of the aforesaid DSP, the bags were checked by ASI Roop Singh. The same were found to be 10 in number. Two samples of 100 grams each of poppy husk were drawn from each bag and converted into parcels. The residue of each bag when weighed came to 36.800 kgs. which were also made into parcels. Thereafter, all the parcels were sealed with seals ‘DS’ and’ RS’. The specimen seal impressions were prepared. ASI Roop Singh handed over his seal to ASI Om Parkash, whereas the aforesaid DSP retained his seal with him. All the sealed parcels, Canter and the specimen seal impressions were seized vide recovery memo. ASI Roop Singh sent the ruqa to the police station. On its basis formal FIR was registered. He prepared the rough site plan showing the place of recovery, arrested the accused and on return to the police station, deposited all the sample parcels, the specimen seal impressions and the vehicle with MHC. On receipt of report from the Forensic Science Laboratory and after completion of investigation, the charge-sheet was laid in the Court for trial of the co-accused Nishan Singh. During the pendency of the trial, accused Randhir Singh was also arrested. His supplementary challan was filed in the Court. They both were charged under Section 15 of the Act, to which they did not plead guilty and claimed trial. 3. In order to substantiate its allegations, the prosecution has examined PW1 SI Sahi Ram, PW2 Constable Mahi Pal, PW3 HC Ishwar Singh, PW4 ASI Joga Singh, PW5 DSP Dharam Pal Singh Dalal, PW6 ASI Om Parkash, PW7 ASI Roop Singh, Investigating Officer, PW8 ASI Waryam Singh and closed its evidence by tendering Ex.PK, the report of Forensic Science Laboratory. 4. When examined under Section 313 Cr.P.C., both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. The accused Nishan Singh came up with the plea that on 18.3.2003, he was apprehended from Mela (fair) site at village Ramthali in presence of Dogar Ram Ex. Sarpanch, Didar Singh son of Kartar Singh, Prem Singh Member Panchayat, Mukhtiar Singh son of Jodh Singh, Bant Ram Member Panchayat and others, all residents of village Kharkan. The accused Nishan Singh came up with the plea that on 18.3.2003, he was apprehended from Mela (fair) site at village Ramthali in presence of Dogar Ram Ex. Sarpanch, Didar Singh son of Kartar Singh, Prem Singh Member Panchayat, Mukhtiar Singh son of Jodh Singh, Bant Ram Member Panchayat and others, all residents of village Kharkan. In defence, they examined DW1 Didar Singh and DW2 Prem Singh. 5. After hearing the learned Additional Public Prosecutor for the State, learned defence counsel and examining the evidence on the record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved therewith, they have preferred the abovementioned appeals. 6. I have heard the learned counsel for the parties and perused the record with due care and circumspection. 7. Mr. Feeling aggrieved therewith, they have preferred the abovementioned appeals. 6. I have heard the learned counsel for the parties and perused the record with due care and circumspection. 7. Mr. Baljinder Singh, Advocate appearing on behalf of the appellants making a short shrift of his arguments maintained that (a) the contents of the affidavit Ex.PC of ASI Joga Singh, who carried the samples to the laboratory as well as the affidavit of HC Ishwar Singh, with whom the case property was allegedly deposited, do not conform to the Forensic Science Laboratory’s report Ex.PK as well as Ex.DA an extract of the relevant entry made in Register No.19 regarding deposit of the case property; (b) as per prosecution story, Zile Singh as well as Baljit Singh PWs were present at the spot but no cogent reason has been assigned for their non-joining in the investigation; (c) ASI Om Parkash has not disclosed as to how he had known the accused Randhir Singh @ Dheera prior to this occurrence and the test identification parade of this accused was also not got arranged and thus, his identity has not been established; (d) the ownership of the alleged vehicle is not established; (e) the conscious possession of either accused in view of the observations made in re: Avtar Singh and another vs. State of Punjab 2002(4) Recent Criminal Reports (CrI.) 180 (SC) is not demonstrated; (f) no specific question was framed nor put to either accused regarding conscious possession when they were examined under Section 313 of Cr.P.C. and thus, no presumption under Section 35 and 54 of the Act can be drawn with regards to the conscious possession qua the accused in the light of the observations made by the Division Bench of this Court in re: Raj Kumar vs. State of Punjab, 2005(1) Recent Criminal Reports (Crl.), 70 and these infirmities cumulatively demolish the prosecution case. 8. To tide over these submissions, Mr.Tarunveer Vashist, Additional Advocate General, Haryana on behalf of the State maintained that as is being evidenced by Ex.PK, the sample seals tallied with the seals affixed on the sample parcels when these were received in the laboratory and thus, the possibility of tampering with the contents of the sample parcels stands ruled out. 8. To tide over these submissions, Mr.Tarunveer Vashist, Additional Advocate General, Haryana on behalf of the State maintained that as is being evidenced by Ex.PK, the sample seals tallied with the seals affixed on the sample parcels when these were received in the laboratory and thus, the possibility of tampering with the contents of the sample parcels stands ruled out. The accused did not account for the possession of the poppy husk bags and that being so, it is only the accused persons, who can be treated to be in actual possession of the contrabands. 9. I have well considered the rival contentions. As per Ex.PC, the affidavit of ASI Joga Singh on 20.3.2003 MHC Ishwar Singh handed over to him the sample parcels of this case alongwith the sample seals for being delivered in the Forensic Science Laboratory, Madhuban vide Road Certificate No.106 and these were returned by the laboratory on the same day with the objection that the name of Nishan Singh accused was not legible on the same and on return, he delivered the sample parcels to the MHC and again on 21.3.2003, the :MHC gave him the same sample parcels, which he carried to the Laboratory vide Road Certificate No.108 dated 21.3.2003 and gave the same in the laboratory. This affidavit nowhere states that its deponent Joga Singh initially approached the office of Senior Superintendent of Police and got prepared the docket from there and then went to the Laboratory. Thus, the link evidence is missing. Further, HC Ishwar Singh in his affidavit Ex.PD has solemnly affirmed that on 20.3.2003 vide Road Certificate No. 106 dated 20.3.2003 he handed over 10 sample parcels of this case to the aforesaid Joga Singh for being carried to the FSL, but the same were returned to him on the same day with the objection that the name of Nishan Singh was not properly visible and on 21.3.2003 vide Road Certificate No.108, he handed over the same sample parcels to Joga Singh who took the same to the Laboratory on the same day and on his return, he gave him the receipt in the token of his having deposited the sample parcels with the laboratory. The relevant part of Forensic Science Laboratory’s report Ex.PK reads as under: “Your forwarding memo.No.612-DSP-G dated 20.03.2003 regarding Ten sealed parcel(s) in connection with FIR No. 50 Dated 18.03.2003 Under Section 15/61/85 NDPS Act Police Station Siwan (KTL) stated by you to have been dispatched vide R.C.No. 108 dated 21.03.03 through UGC Joga Singh 648 received in this division on 21.03.03.” 10. Obviously, this report is absolutely silent about the delivery of these sample parcels in the Laboratory by Joga Singh ASI on 20.3.2003 vide Road Certificate No.106 as well as the return thereof with certain objections on the same day. From a bare reading of the language of Ex.PK, it transpires that the sample parcels did not reach in the laboratory on 20.3.2003. It appears that the sample parcels were carried to and delivered in the laboratory for the first time on 21.3 .2003. From a combined reading of these documents, it emerges out that the affidavits are not in consonance with Ex.PK. This inconsistency or incompatibility in these documents causes a dent in the prosecution case. 11. As emanates from the evidence of Ranjit Singh ASI, two samples of 100 grams each of poppy husk were drawn from each bag whereas, according to the standing instructions issued by the Central Narcotic Drugs Bureau, New Delhi, the sample of 250 grams in case of poppy husk should be drawn. It is in the cross-examination of PW5 DSP Dharam Pal Singh Dalal, that “Zile Singh and Balbir Singh of village Sair were with Investigating Officer, they had told about ownership of fields situated adjacent place of recovery.” This evidence leaves no room for doubt that these independent witnesses were very much present at the spot. It is in his further cross-examination that "during course of effecting recovery, no public witness came to the spot except abovementioned two member panchayats (referring to Zile Singh as well as Balbir Singh)." This witness or the Investigator did not apportion any cogent reason for non­-joining of these witnesses in the investigation. It is in the statement of PW6 ASI Om Parkash that “prior to arrival of DSP at the spot, two public persons namely Zile Singh Panch and Baljit Singh Panch of village Sair also came at the spot to whom SHO/I.O. asked to become witness but they showed their inability being neighbourer and co-villagers.” This, explanation is not enough. It is in the statement of PW6 ASI Om Parkash that “prior to arrival of DSP at the spot, two public persons namely Zile Singh Panch and Baljit Singh Panch of village Sair also came at the spot to whom SHO/I.O. asked to become witness but they showed their inability being neighbourer and co-villagers.” This, explanation is not enough. Their non-joining cast a cloak of suspicion on the recovery. ASI Om Parkash PW6 has merely stated that “the said person was also known to me and he was Randhir Singh alias Dheera son of Joginder Singh Kamboj Sikh resident of village Sair.” This evidence without there being any corroboration is not enough to presume that the identity of this accused has been established. The test identification parade was not got arranged. Ostensibly, the prosecution evidence falls short of establishing his identity beyond reasonable doubt. As transpires from the evidence of the Investigating Officer, he did not take the pain to ascertain and locate the owner of the vehicle in question. The prosecution version is that the accused Randhir Singh @ Dheera was driving the vehicle and he managed to escape from the spot whereas his co-accused Nishan Singh was seated in the cabin on the conductor side. The Apex Court in re: Avtar Singh and another (supra) held as under: “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 person 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 he was the proprietor. One of the person 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 he 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. 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. The 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 Evidence Act nor is it safe 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 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.” 12. In re: Raj Kumar (supra), the bag containing 8.250 grams of opium was lying on the seat between the two accused. They both were charged for possession of opium, but neither of them had been asked any question in their statements under Section 313 of Cr.P.C. that they were in conscious possession of opium. It was held by the Division Bench of this Court that neither the presumption under Section 35 nor under Section 54 of Act would be attracted, as it was necessary for the trial Court to frame a specific question regarding the presumption which is sought to be raised either under Section 35 or Section 54 of the Act when examining the accused under Section 313 of Cr.P.C. But no such question was framed or put to the accused regarding their conscious possession. It was held that their conscious possession is not established. 13. In re: Kashmir Singh vs. State of Punjab, [2006(3) LAW HERALD (P&H) (FB) 2391] : 2006(2) Recent Criminal Reports (Crl.), 477, contraband was recovered from the possession of the accused. It was held that there is presumption of culpable mental state 7 and conscious possession on the part of the accused under Sections 35 and 54 of the Act, but these presumptions are rebuttable and the same will not be available to the prosecution unless trial judge gives an opportunity to accused to rebut the same by putting questions under Section 313 of Cr.P.C. 14. It can be culled out from the afore-quoted authorities that the presumption arising under Section 35 ibid as well as 54 ibid would be available to the prosecution only if a specific question regarding the presumption arising under these Sections qua conscious possession is formed and put to the accused when he is being examined under Section 313 of Cr.P.C. The rationale or philosophy lying behind the formulation of such question is to afford an opportunity to the accused to explain about his conscious possession qua the recovered contraband. It is an abstract rule of law that every presumption is rebuttable. 15. Harking back to the facts of the instant case, as follows from the statutory statements of both the accused recorded under Section 313 of Cr.P.C., specific question regarding conscious possession formed nor put to the accused by the trial Court. Thus, in view of the afore-referred authorities, the presumption arising under Sections 35 and 54 of the Act is not available to the prosecution. 16. In view of the infirmities catalogued hereinbefore, both these appeals are accepted. Sequelly, the impugned judgment of conviction/order of sentence is hereby set aside and the appellants are hereby acquitted of the charged offence. ----------------------------