JUDGMENT Harbans Lal, J.:-This appeal is directed against the judgment/order of sentence dated 5.9.2001 rendered by the Court of learned Special Judge, Hoshiarpur, whereby he convicted and sentenced accused/appellant Devinder Singh alias Binder to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of the same, to further undergo rigorous imprisonment for six months under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for brevity, ‘the Act’ ). 2. Shorn of all unnecessary details, the prosecution case is that on 1.4.1998, SI Sita Ram, among other police officials including SI Nirmaljit Singh, happened to be present near Amrit Petrol Pump, Saila Khurd, in connection with the checking of the suspects. Meanwhile, SI Nirmaljit Singh, received secret information that Harjinder Singh alias Kala and his brother Devinder Singh alias Binder, residents of village Painsra were indulging in the sale of poppy husk in their village and even earlier they were arrested in such a case and had been released on bail and in case a raid is conducted, they can be apprehended and poppy husk in large quantity could be recovered from them. When the police party neared village Painsra, they came across Baldev Singh Sarpanch and Shaunka Singh, Ex­Sarpanch, who were joined in the police party. Thereafter, a raid was conducted. On catching sight of the police party, they made an attempt to run away after leaving the weights and scales there, but SI Sita Ram along with other police officials, intercepted Devinder Singh alias Binder accused, though the other accused-Harjinder Singh alias Kala was nabbed by SI Nirmaljit Singh. Devinder Singh alias Binder suffered a disclosure statement that he had kept concealed three bags of poppy husk in the heap of wheat chaff in the cattle shed of his brother Harjinder Singh, about which only he knew and could get the same recovered. His disclosure statement was jotted down. Thereafter, SI Sita Ram asked the accused to tell whether he wanted to have search of the cattle shed in the presence of a Gazetted Officer or a Magistrate, but he expressed his faith in him. The accused led the police party to the disclosed place and got recovered three bags of poppy husk. In the meantime, Ajaib Singh DSP also came at the spot. The accused led the police party to the disclosed place and got recovered three bags of poppy husk. In the meantime, Ajaib Singh DSP also came at the spot. The samples weighing 250 grams each were drawn from each bag and converted into parcels. The residue of each bag, when weighed, came to 40 kgs. which was also turned into a parcel. All the parcels were sealed with the seal AS. The seal after use was handed over to HC Surinderpal Singh. The DSP also prepared the sample seals and filled CFSL forms at the spot. Thereafter, he seized all the parcels along with CFSL form as well as the sample seal vide recovery memo. He handed over the parcels, CFSL form and the sample seal to Sita Ram SI vide entrustment memo. SI Sita Ram sent Ruqa to the police station, where on its basis, formal FIR was recorded, prepared the visual site plan showing the place of recovery, recorded the statements of witnesses, arrested the accused and on return to the police station, produced all the above mentioned articles before Nirmal Singh, Inspector/SHO, who affixed his own seal on all the parcels and thereafter, deposited the case property with seals intact with the MHC. On receipt of chemical examiner’s report and after completion of investigation, charge sheet was laid in the Court for trial of the accused. 3. The accused was charged under Section 15 of the Act to which he did not plead guilty and claimed trial. The prosecution examined as many as 7 witnesses and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He has put forth that he has been falsely implicated in this case to increase the number of cases. In defence, he examined Baldev Singh Sarpanch, DW-1. 4. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, he has preferred this appeal. 5. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. Feeling aggrieved with his conviction/sentence, he has preferred this appeal. 5. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. Rakhra, Advocate, appearing on behalf of the appellant, urged with great eloquence that as per prosecution story, the recovery was effected in pursuance of secret information, which as emerges out of the evidence of HC Surinderpal Singh, PW7, was not reduced into writing in utter violation of the mandatory provisions of Section 42 of the Act. He further puts that the provisions of Section 50 of the Act have not been adhered to and furthermore, there is no evidence to the effect that the accused/appellant was owner of the alleged place of recovery. To add further to it, the prosecution story has not been supported by an independent witness, rather Baldev Singh DW-1 Sarpanch who was joined as independent witnesses by appearing in defence, knocked down the prosecution story. He further argued that the same site plan has been used in both the cases, i.e. one in the present case and the other one in the case registered against the brother of the accused-appellant. It is also added that the seal after use was handed over to Surinderpal Singh PW7, though independent witnesses Baldev Singh and Shaunka Singh were also present at the time of alleged recovery. The non handing over of the seal to either of these witnesses, gives an inkling that indeed the recovery was not effected in the suggested manner. It is further argued that there is a delay of as many as 15 days in sending the sample to the chemical examiner and this delay, coupled with entrustment of the seal after use to the police official, probablises tampering with the contents of the sample parcels. Last of all, it is submitted that the conscious possession of the accused/appellant qua the alleged bags of poppy husk has not been established. 6. To tide over these submissions, Mr. C.S. Brar, Deputy Advocate General, Punjab On behalf of the State, maintained that the recovery has been effected from the cattle shed which being in exclusive possession of the accused/appellant, the conscious possession stands established. 6. To tide over these submissions, Mr. C.S. Brar, Deputy Advocate General, Punjab On behalf of the State, maintained that the recovery has been effected from the cattle shed which being in exclusive possession of the accused/appellant, the conscious possession stands established. He further contended, that if the investigator had not proceeded to the spot immediately, the accused/appellant would have escaped and in these circumstances, non observance of the provisions enshrined in Section 42 of the Act in no way caused prejudice to the accused/appellant. 7. I have given a deep and thoughtful consideration to the rival contentions. 8. As surfaces in the cross-examination of S.I. Sita Ram PW/5, the secret information was not reduced into writing nor its copy was sent to the Superior Officials. Thus, the mandatory provisions of Section 42 of the Act have been given a go by. It is in the cross examination of SI Sita Ram, Investigator that "we were in knowledge that where the contraband was concealed. The accused was arrested while running.” This evidence speaks volumes of the fact that the place of concealment was well within the knowledge of the Investigator. In re: Krishan Mohan Singh Duggal v. State of Goa, 1999 (4) Recent Criminal Reports (Criminal) 619, it was submitted on behalf of the appellant that the evidence clearly discloses that the police was already informed about the place where Charas was concealed before the appellant had taken the police to that place and, therefore, no reliance could have been placed upon the recovery of Charas. The Apex Court observed that “having scrutinized the evidence of the witnesses and the Panchnama, we find that the police was already informed about the place where the Charas was kept. Thus, this is not a case where the informed article was taken out by the accused from the place of concealment after leading the police to that place and that the police did not know about it earlier. It is, therefore, difficult to uphold the findings of the Courts below that it was the appellant who had concealed the Charas there and that it was found out only on the basis of disclosure statement made by the appellant. “ 9. Reverting back to the facts of the instant case, as per the version projected by the above mentioned witness/investigator, he apprehended Devinder Singh accused and recorded his disclosure statement, Exh. PE. “ 9. Reverting back to the facts of the instant case, as per the version projected by the above mentioned witness/investigator, he apprehended Devinder Singh accused and recorded his disclosure statement, Exh. PE. In pursuance of his such disclosure statement, he got effected the recovery. If the matter is viewed in the light of the above observations rendered by the Apex Court, it is difficult to concur with the finding of the learned trial Court that only the appellant knew about the place of concealment and the poppy husk bags were found out only on the basis of his disclosure statement. In re: Jarnail Singh v. State of Punjab, 2005 (3) Recent Criminal Reports (Criminal) 314, the police had received secret information which gave specific and clear indication about the place where the contraband was lying. It was held by this Court that in the light of factual backdrop, recording of disclosure statement of the accused at the spot was nothing but a clever move on the part of the Investigating Officer. This creates suspicion in the mind of the Court with regard to the so-called recovery. The prosecution has not been able to establish the charge of conscious possession of the contraband. The conviction was set aside. ‘ 10. In the present case, the police had already precise and exact information about the place where the poppy husk bags were lying. It is in the further cross-examination of the above mentioned Investigating Officer that no document was taken into possession regarding the ownership of this place (referring to the place of recovery). No statement to this effect was recorded. It leaves no scope for doubt that the ownership of the place of recovery has also not been established by the prosecution. The place of recovery is being described as a cattle shed. It is in the cross-examination of the Investigator that “there is a boundary wall around the place from where the alleged recovery was effected. There is a gate fixed on the boundary wall. It is correct that I have not shown gate around the boundary wall in the rough site plan, Exh. PJ. There was not any door fixed to the chhappar.” It is also in the cross-examination of HC Surinderpal Singh, PW/7 that "there is not any boundary wall regarding the said chhappar. It is correct that the place of recovery is accessible to all. PJ. There was not any door fixed to the chhappar.” It is also in the cross-examination of HC Surinderpal Singh, PW/7 that "there is not any boundary wall regarding the said chhappar. It is correct that the place of recovery is accessible to all. The police party was within the knowledge where the contrabands were concealed and recovery could be effected.” This evidence shows that the recovery could have been effected in the course of casual or usual or ordinary search. If it was so, where was the need to record the disclosure statement of the accused/appellant. To add further to it, the place was obviously accessible to all and sundry. This witness in his further cross-examination has stated that "it is correct that recovery could be effected on usual search of said chhappar." In the face of this evidence, it is very difficult to say that the place of concealment was in the exclusive knowledge and possession of the accused/appellant. 11. As shall appear in the cross-examination of PW/7 HC Surinderpal Singh, the seal after use was handed over to him by the DSP Ajaib Singh. In his next breath, he has stated that both the independent witnesses were present when the seal was handed over to him. The prosecution has not given any explanation worth mention for preferentially handing over the seal to an official witness in the presence of two independent witnesses. As would be apparent from Exh.PM, the sample parcels were received in the office of the Chemical Examiner on 16.4.1998, i.e., after a delay of 15 days. This delay coupled with handing over of the seal after use to the police official probablises tampering with the contents of the sample parcel. It is in the cross-examination of Inspector Nirmal Singh PW/6 before whom the case property was produced in adherence to the provisions of Section 55 of the Act that “however, I have not prepared any sample of the seal which was used by me.” It is in his further cross­examination that "I had not used my seal any where else except ‘potlies’ and bags.” It has been manifested in plain words by this evidence that this witness did not prepare the sample seal. This fact is further fortified by Form No.29, Exh. PL which bears the sample seals of letters AS only and not NS belonging to this witness Nirmal Singh PW/6. This fact is further fortified by Form No.29, Exh. PL which bears the sample seals of letters AS only and not NS belonging to this witness Nirmal Singh PW/6. Thus, it is inferable that the case property was not produced before the above mentioned witness and as its result, it has to be held that the provisions of Section 55 of the Act were also not complied with. No other material point was urged or agitated by either counsel. As a sequel of the above discussion, this appeal is accepted, setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence. ----------------------