JUDGMENT Sham Sunder, J 1. This appeal is directed against the judgment of conviction and the order of sentence dated 25.2.1999, rendered by the Court of Additional Sessions Judge, Mansa, vide which, it convicted the accused ( now appellants), for the offence, punishable under Section 15 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1 lac each and in default of payment of the same, to undergo rigorous imprisonment for a further period of two years each, for having been found in possession of 6 bags each containing 35 kgs. 100 grams poppy husk, without any permit or licence. 2. The facts, in brief, are that on 19.6.1996, the Police party headed by SI Deep Chander was on patrol duty, and general checking, and when it was present at the bus stand of village Sangha, Gowardhan Dass Chowkidar son of Bhagwan Singh met it, who was joined with it. The Police party proceeded further towards village Ding, and when it had covered a distance of 2-1/2 kilometers, the accused were seen sitting in the old grave-yard. On seeing the Police party, they tried to run away from the spot, but were apprehended on suspicion. It was noticed that they had kept a heap of poppy husk on the “Chaddar” near the grave-yard of Sahari Peer. They were also in possession of a box of one liter each, in their hands. DSP Iqbal Singh reached the spot after receipt of wireless message, from the Investigating Officer. In the presence of DSP Iqbal Singh and, under his directions, 100 grams of poppy husk, was taken out as a sample from the heap of poppy husk, and the remaining poppy husk was put in, 6 bags, each weighing 35 kgs. The samples and the remaining poppy husk were converted into separate parcels, duly sealed, and taken into possession, vide separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, FIR was registered. Site plan, with correct marginal notes, was prepared. The accused were arrested. The statements of the witnesses, were recorded. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Site plan, with correct marginal notes, was prepared. The accused were arrested. The statements of the witnesses, were recorded. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Inspector Bikram Singh,PW1, ASI Jagmel Singh, PW2, SI Deep Chander, PW3, Constable Jaspal Singh, PW4 and Iqbal Singh, DSP, PW5. Thereafter, the Additional Public Prosecutor for the State closed the prosecution evidence. 5. The statements of the accused, under Section 313 Cr.P.C. were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, examined Gowardhan Dass,DW1, Kartar Singh,DW2 and Virsa Singh,DW3. Thereafter, the accused closed their defence evidence. 6. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellants. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellants, at the very outset, contended that the prosecution miserably failed to prove that the accused were in conscious possession of the poppy husk, referred to above. He further submitted that, under these circumstances, no offence punishable under Section 15 of the Act was committed by the accused. As per the prosecution story, the accused were found sitting in the grave-yard, and near them on a “Chaddar” there was a heap of poppy husk. Grave-yard is a public place excessible to all and sundry. Any person can go to the graveyard without any prohibition. There is a grave of Sahari Peer, in the said grave-yard. Any person could go to that mosque, with a view to pay obeisance. There is no corroborative evidence to establish that the accused were sitting there, for the purpose of sale of poppy husk. Any person can go to the graveyard without any prohibition. There is a grave of Sahari Peer, in the said grave-yard. Any person could go to that mosque, with a view to pay obeisance. There is no corroborative evidence to establish that the accused were sitting there, for the purpose of sale of poppy husk. Neither any scale nor any weights nor any tin container were lying at the spot, for the purpose of sale of poppy husk. No overt-act was also attributed to the accused, which could indicate, that they were sitting near the heap of poppy husk, for the purpose of sale thereof. Kartar Singh,DW2, stated that the place of alleged recovery is adjacent to his fields, and he used to reside in the farm house. Virsa Singh, DW3, also stated that the graveyard aforesaid, is adjacent to his fields. Both of them stated that no recovery of poppy husk in their presence was effected from the accused. It was not that the accused were sitting in their house, the bags containing poppy husk, were lying there, and they could be attributed the conscious possession thereof. It was also not that the accused were travelling in a van, in which the poppy husk, was being transported, and they could be attributed the knowledge of the contents of the same. As stated above, at the public place, from where the alleged recovery was effected, anybody could go without any prohibition. However, a question arises as to whether, the accused could be said to be in possession of the poppy husk, merely because they were found sitting near the same. The answer to the same is in the negative. In Parminder Singh vs. State of Haryana 2006 (4) RCR 495 the accused was standing near the car, in which opium was lying. The car did not belong to the accused. On seeing the police party, he ran away. Under these circumstances, a Division Bench of this Court, held that the accused could not be said to be in conscious possession of the opium, lying in the car. In State of Punjab V. Balkar Singh and another 2004(3) SCC 582, the accused were found present at the place, where 100 bags of poppy husk were lying. Under these circumstances, a Division Bench of this Court, held that the accused could not be said to be in conscious possession of the opium, lying in the car. In State of Punjab V. Balkar Singh and another 2004(3) SCC 582, the accused were found present at the place, where 100 bags of poppy husk were lying. It was held by the Apex Court, that merely by being found to be present at the place where the poppy husk bags were lying and failure of the accused to give any satisfactory explanation, for being so present, did not prove that they were in possession of the said poppy husk bags, especially when they, in that case, belonged to different villages, no investigation had been conducted by the Investigating agency in that case as to how the bags containing poppy husk were found lying at that place. The Apex Court dismissed the appeal, filed by the State of Punjab against the judgment of acquittalpassed by this Court. Para 3 of the said judgment reads as under : “3, We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimoney of PW1 Balbir Singh and PW2 ASI JarnailSingh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present at that place itself does not prove that the were in possession of these articles. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present at that place itself does not prove that the were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court. In the instant case, no investigation was conducted, as to how the poppy husk was transported to the grave-yard and to whom the same belonged. In the instant case, the accused were not found sitting on the poppy husk but near the same, and they also belonged to different villages. The aforesaid authorities are of a great help to this case. The submission of the Counsel for the appellants, to the effect that the accused were not found in conscious possession of poppy husk, carries substance and stands accepted. 10. It was next submitted by the Counsel for the appellants, that Gowardhan Dass, independent witness, Chowkidar of the village, was not examined by the prosecution, as a result whereof, it could be said that the prosecution withheld the best evidence in its possession. He further submitted that an adverse inference could be drawn that had Gowardhan Dass been examined, he would not have supported the case of the prosecution. The submission of the Counsel for the appellants ,in this regard, appears to be correct. It is, no doubt, true that Gowardhan Dass, independent witness, was joined by the Investigating Officer , yet he was given up, as won over, by the accused. There is nothing, on the record ,as to on the basis of which information, the Additional Public Prosecutor came to the conclusion, that this witness had been won over, by the accused. It is, no doubt, true that the Additional Public Prosecutor for the State, is the master of the case. There is nothing, on the record ,as to on the basis of which information, the Additional Public Prosecutor came to the conclusion, that this witness had been won over, by the accused. It is, no doubt, true that the Additional Public Prosecutor for the State, is the master of the case. It is, for him to decide, as to which witness he wanted to examine, and, as to which witness he did not want to examine. However, such discretion, is required to be exercised, by the Public Prosecutor, in accordance with the sound Judicial principles, and, not arbitrarily and capriciously. In the instant case, it is not known, as to what, persuaded the Public Prosecutor, to give up this witness, as won over. It, therefore, could be said that the discretion was exercised by him, arbitrarily and capriciously. It is, no doubt true, that, in the absence of corroboration, through an independent source to the evidence of the official witnesses, the case of the prosecution cannot be thrown out. However, when an independent witness is joined, like a Chowkidar, who is a limb of the administration, but is given up, without any rhyme or reason, then certainly a doubt is cast, on the prosecution story. Had Gowardhan Dass, independent witness been examined, light would have been thrown, on the facts and circumstances of the case, truth would have been revealed, and credence would have been lent to the prosecution case, solely based on the evidence of the official witnesses. However, when the evidence of the official witnesses, is found to be not cogent, convincing, reliable and trustworthy, then on account of non-corroboration thereof, through an independent source, certainly a doubt is cast, on the prosecution story. In the instant case, the evidence of the prosecution witnesses, does not inspire confidence, in the mind of the Court. In this view of the matter, non corroboration of the evidence of the official witnesses, through an independent source, certainly makes the case of the prosecution suspect. In State of Punjab Vs. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution became doubtful. In the instant case, non-examination of Gowardhan Dass,independent witness, made the case of the prosecution doubtful. Nachhattar Singh @ Bania, 2007 (3) RCR (Criminal) 1040, a case decided by a Division Bench of this Court, an independent witness was joined, but was not examined. In these circumstances, it was held that the case of the prosecution became doubtful. In the instant case, non-examination of Gowardhan Dass,independent witness, made the case of the prosecution doubtful. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. 11. The Counsel for the respondent,however,submitted that the mere fact that Gowardhan Dass was examined as, DW1, by the accused was in itself sufficient to prove that he was won over by him and that was why he appeared on his behalf. In the normal course, such an argument, on behalf of the Counsel for the respondent, would have been considered to be carrying some weight. However, in the instant case, Gowardhan Dass, being the Chowkidar of the village and a limb of the administration, it could not be said that his examination as DW1 gave rise to the inference that he was won over by him. A Chowkidar goes to the Police Station, in routine, may be once or twice a day. If during those routine visits to the Police Station, his thumb impressions, he being illiterate, were obtained on certain documents that did not mean that he was present at the time of effecting the alleged recovery. Gowardhan Dass being the Chowkidar of the village and a limb of the administration, could not resile from his statement, had he actually been joined by the Police party as he knew that he had to face the police officials daily and may be falsely implicated in some other case. Gowardhan Dass DW1 stated that he never saw the accused earlier. He was right in saying so, as Nirmal Singh and Kaka Singh, accused, do not belong to village Sangha to which village this witness belongs. Nirmal Singh belongs to village Mandran whereas, Kaka Singh belongs to village Narail Khera. The villages of the accused are away from the village of the Gowardhan Dass, Chowkidar,DW1. The statement made by him that no recovery was effected, in his presence,therefore, could be said to be truthful. Nirmal Singh belongs to village Mandran whereas, Kaka Singh belongs to village Narail Khera. The villages of the accused are away from the village of the Gowardhan Dass, Chowkidar,DW1. The statement made by him that no recovery was effected, in his presence,therefore, could be said to be truthful. The submission of the Counsel for the respondent, in this regard, being without merit, must fail and the same stands rejected. 12. It was next submitted by the Counsel for the appellants that though the alleged recovery was effected on 19.6.1996, yet the sample parcels were sent to the Chemical Examiner on 26.6.1996 i.e. after a period of seven days, without any explanation, and the possibility of the tampering with the same could not be ruled out. The submission of the Counsel for the appellants, in this regard appears to be correct. It is, no doubt, true that mere delay in sending the sample, in itself was not sufficient to come to the conclusion, that the same was tampered with, until it reached the office of the Chemical Examiner. In such a situation, the Court is required to fall back upon the other evidence, produced by the prosecution. If the Court comes to the conclusion after scrutiny of such evidence that the same is reliable, then it can be believed. In the instant case, the other evidence produced by the prosecution, regarding the completion of link evidence is not only unreliable, but deficient too. Bikram Singh,Inspector/SHO,PW1 did not state in his statement that at the time of keeping the case property, and the sample parcel, in the Malkhana, he also kept the sample impression of the seal therein. He also did not state that he prepared the sample impression of theseal and handed over the same to the constable for deposit alongwith the sample parcel in the Laboratory. When the sample impression of the seal was neither kept by Inspector Bikram Singh, PW1 in the Malkhana, nor handed over to the constable for deposit in the Laboratory, it is not known as to how it reached the Laboratory. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 7 days, in sending the sample to the office of the Chemical Examiner. No explanation, whatsoever, has been furnished, by the prosecution witnesses, with regard to the delay of 7 days, in sending the sample to the office of the Chemical Examiner. It is the duty of the prosecution, to prove beyond a reasonable doubt, that none tampered with the sample, till the same reached the office of the Chemical Examiner. Since, the sample was allegedly sent to the office of the Chemical Examiner, after 7 days, and the other evidence has been held to be unreliable, it could not be safely held that the same remained un-tampered with. This fact casts a shadow of doubt, on the case of the prosecution. In Gian Singh Vs. State of Punjab 2006(2) RCR (Criminal) 611, there was a delay of 14 days, in sending the sample to the office of the Chemical Examiner. Under these circumstances, it was held that the possibility of tampering with the sample, could not be ruled out, and the link evidence was incomplete. Ultimately, the appellant was acquitted, in that case. In State of Rajasthan Vs. Gurmail Singh 2005(2) RCR (Criminal) 58, (Supreme Court), the contraband remained in the Malkhana for 15 days. The malkhana register was not produced, to prove that it was so kept in the malkhana, till the sample was handed over to the Constable. In these circumstances, in the aforesaid case, the appellant was acquitted. In Ramji Singh Vs. State of Haryana 2007 (3) RCR (Criminal) 452, the sample was sent to the office of the Chemical Examiner after 72 hours, the seal remained with the police official, and had not been handed over to any independent witness. Under these circumstances, it was held that this circumstance would prove fatal to the case of the prosecution. In these circumstances, the principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. The delay of 7 days, in sending the sample to the office of the Chemical Examiner, and non-strict proof, by the prosecution, that the same was not tampered with, till it was deposited, in that office, must prove fatal to the case of the prosecution, as the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 13. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 13. It was next submitted by the Counsel for the appellants, that the provisions of Section 55 of the Act were not complied with, in as much as, the case property and the sample parcel were not produced before the Ilaqa Magistrate, as a result whereof, a great prejudice was caused to the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Had any explanation been furnished, by the Investigating Officer, as to what prevented him, from producing the case property, immediately after the search and seizure, the matter would have been considered, in the light thereof, but in the absence of any explanation, having been furnished, by the Investigating Officer, in this regard, the Court cannot coin any of its own, to fit in with the prosecution case. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh Vs. State of Haryana 2001 (1) RCR (Crl.) 702 (S.C.), it was held that non-compliance of the provisions of Sections 52,55 and 57, which are, no doubt, directory and violation thereof, would not ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, the Investigating Officer, intentionally and deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provisions, is an indicator, towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Compliance of the said provisions, is an indicator, towards the reasonable, fair and just procedure, adopted by the Investigating Officer, during the course of search and seizure. Non-compliance of such a provision, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure, may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency, cannot be permitted. Intentional and deliberate breach of the provisions of Section 55, certainly caused prejudice, to the accused, and cast a doubt on the prosecution story. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, it fell into an error in recording conviction and awarding sentence. 14. No other point was urged by the Counsel for the parties. 15. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, are not based on the correct appreciation of evidence, and law, on the point. The trial Court did not take into consideration, the infirmities and lacunae, enumerated, in the aforesaid paragraphs. Had these infirmities and lacunae, been taken into consideration, by the trial Court, the result would have been different. The judgment of conviction, and the order of sentence, warrant interference, and are liable to be set aside. 16. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction, and the order of sentence dated 25.2.1999, are set aside. The appellants shall stand acquitted of the charge framed against them. If, they are on bail, they shall stand discharged of their bail bonds. If, they are in custody, they shall be set at liberty, at once, if not required in any other case. The Chief Judicial Magistrate shall comply with the judgment in accordance with the provisions of law within one month from the date of receipt of the copy of the same.