JUDGMENT K.S. Ahluwalia, J. (Oral):- The present appeal has been preferred by Jarnail Singh alias Jaila son of Mohan Singh, resident of vilalge Pensra, District Hoshiarpur. He is aggrieved against the judgment of learned Additional Sessions Judge, Hoshiarpur, whereby he has been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as ‘the Act’) and has been ordered to undergo sentence of 10 years’ rigorous imprisonment and to pay a fine of Rs. one lac, in default of payment of which to further undergo RI for two years. 2. The case FIR was registered at police station Mahilpur on the statement sent by ASI Sucha Singh to the effect that he was on patrol duty where he received a secret information from a special informant that in case a raid is conducted in the house (Basera) of the appellant, poppy husk can be recovered. Accordingly along the raiding party he proceeded to the spot. It is further case of the prosecution that when the house of the appellant was raided, he was present outside the house. An option of search being conducted in the presence of the Magistrate or Gazetted Officer was given to the appellant. However, he reposed confidence in ASI Sucha Singh. It is further stated that on interrogation, the appellant suffered a disclosure statement under Section 27 of the Indian Evidence Act to the effect that he had kept concealed in his house 7 bags of poppy husk. During trial the disclosure statement has been exhibitted as PE. In furtherance thereof, recovery was effected vide recovery memo. Exhibit PF. 3. After the investigation was concluded, challan was filed. Charge was framed to which the appellant pleaded not-guilty and claimed trial. 4. In order to substantiate its case, the prosecution examined as many as 4 witnesses: 5. PW1 Inspector Balkar Singh, who was posted as SHO, police station Mohilpur at the relevant time, has disposed that he had received a wireless message from ASI Sucha Singh and the case property was produced before him. He has further stated that there were 7 bags of poppy husk, which were sealed with the seal bearing impression ‘SS’. In cross examination he stated that he had filled the CFSL form on the spot. 6. PW2 Ashwani Kumar tendered his affidavit. 7. He has further stated that there were 7 bags of poppy husk, which were sealed with the seal bearing impression ‘SS’. In cross examination he stated that he had filled the CFSL form on the spot. 6. PW2 Ashwani Kumar tendered his affidavit. 7. Affidavit of Baljinder Singh was also tendered as he was a formal witness to the link evidence. 8. HC Sarwan Singh PW3 has stated that an effort was made to join independent witness from village Pensra, but none was available. He has corroborated the version of ASI Sucha Singh regarding the investigation carried out at the spot. In crossexamination, he admitted that many people had crossed the police party but none was joined. He further stated that he could not disclose the names of the persons, who refused to join as independent witness. He admitted that the wife and the children of the appellant also resided in the same house. 9. PW4 ASI Sucha Singh gave details regarding search, seizure and recovery. In cross examination, he admitted that the road leading to village Pensra is a thoroughfare. He further stated that some people met him in the way, but none was ready to become a witness. . 10. The appellant when examined under Section 313 of the Code of Criminal Procedure stated that he was innocent and has been falsely implicated. He has led no evidence in defence. 11. None has appeared on behalf of the appellant. 12. I have perused the record and gone through the testimony of the witnesses. 13. Two pointed questions have been asked to the learned State counsel. Firstly, since the secret information was available with the Investigating Officer that poppy husk has been kept by the appellant in his house, there was no need to record disclosure statement (Exhibit PE) as this fact was not in the special knowledge of the accused alone, but it was known to the Investigating Officer as well. Secondly, no document or witness from the village has been produced to show that the place, from where recovery was effected, exclusively belonged to the appellant. It was mandatory to comply with the provisions of Section 100(4) of the Code of Criminal Procedure. For effecting a search in the house, the Investigating Officer had to join independent witness. 14. On this count, both PW3 HC Sarwan Singh and PW4 ASI Sucha Singh are discrepant. It was mandatory to comply with the provisions of Section 100(4) of the Code of Criminal Procedure. For effecting a search in the house, the Investigating Officer had to join independent witness. 14. On this count, both PW3 HC Sarwan Singh and PW4 ASI Sucha Singh are discrepant. HC Sarwan Singh has stated that so many people crossed the police party and no person from the road or the village was joined in the police party. He further stated that driver Jagtar Singh was sent to bring the independent witness, but he did not disclose the names of the persons, who refused to be a witness; whereas PW4 ASI Sucha Singh has admitted that the road leading to Pensra is a thoroughfare. He further stated that no person from the locality was joined as none was ready to be a witness. However, in the case diary or in the notes of the investigation, there is no mention that any one had been asked to be a witness or he had refused to join as such. This lame excuse has been coined only at the time of deposition in the Court. Minimum required from the Investigating Officer is that he should prove ownership or possession of the accused over the place, from where the recovery is effected. Village Chowkidar, Lamberdar, Sarpanch or Panch are some of the persons who can be examined. Revenue record, documents from Panchayat Secretaries regarding Chula-tax are indicators from which ownership or possession of the person can be established. No effort has been made by the Investigating Officer in this regard. 15. Taking into consideration the totality of circumstances, I am left with no option except to allow this appeal, set-aside conviction and sentence imposed upon the appellant and acquit him of the charge. Order accordingly. ———————————