JUDGMENT Harbans Lal, J.:- This appeal has been directed against the judgment/ order of sentence dated 20th November, 1995 whereby the Court of learned Additional Sessions Judge, Sangrur convicted and sentenced the accused to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac and in default thereof, to further undergo rigorous imprisonment for one year under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as ‘the Act’). 2. The factual matrix is that on 29th April, 1994, Sub Inspector Harmel Singh among other police officials including Head Constable Rajwinder Singh was going on the pavement of the drain on the kucha path towards side of Village Chhahar. When the police party reached the place from where a pucca water-course passes under the drain, the accused was found sitting on three gunny bags. On suspicion, he was apprehended. SI Harmel Singh told the accused that he wanted to search him. He was offered to be searched in the presence of a Gazetted Officer or a Magistrate. The accused expressed his faith in him and offered himself for the search. In this regard memo Ex.PA was written, which was thumb marked by the accused, attested by HC Rajwinder Singh and C-II Malkiat Singh. A wireless message was flashed to Deputy Superintendent of Police, Sunam, who on receipt of same, came at the spot. On search of the gunny bag in his presence, poppy husk was recovered. Two samples of 250 grams each were drawn from each bag. The remainder of each bag when weighed came to 33 kgs. 500 grams. The samples and the gunny bags were converted into parcels, which were sealed with the seal bearing impression ‘HS’ as well as ‘SS’. These bags Exs.P-5 to P-7 were seized vide recovery memo Ex.P8, attested by HC Rajwinder Singh as well as Constable Malkiat Singh. The specimen seal impression Ex.P1 was also prepared. The seal after use was handed over to HC Rajwinder Singh. Ruqa Ex.PC was sent to the police station, where on its basis formal FIR Ex.PC/1 was recorded. The rough site plan Ex.PD showing the place of occurrence was also prepared by SI Harmel Singh. On return to the police station, the case property was deposited with MHC Jagga Ram with seal intact. Ruqa Ex.PC was sent to the police station, where on its basis formal FIR Ex.PC/1 was recorded. The rough site plan Ex.PD showing the place of occurrence was also prepared by SI Harmel Singh. On return to the police station, the case property was deposited with MHC Jagga Ram with seal intact. After completion of the investigation, challan was presented in the Court of learned Illaqa Magistrate, who after compliance of the provisions of Section 207 of Cr.P.C. committed the case to the Court of learned Sessions Judge. The accused was charged under Section 15 of the Act, to which he did not plead guilty and claimed trial. 3. To bring home guilt against the accused, the prosecution has examined SI Harmel Singh PW1, DSP Surinder Singh PW2 and closed its evidence by tendering the Chemical Examiner Report Ex.PZ, affidavits Ex.PP and Ex.PG of MHC Jagga Ram and Constable Rulda Ram respectively. 4. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him. He came up with the plea that “I am innocent. I have been falsely implicated. Surinder Singh was working DSP prior to the recovery. Joginder Singh @ Ginder Singh my brother filed a writ petition in the High Court and a raid was conducted on the Police Station, Sunam. Due to that the police was annoyed with me for filing the writ. I was arrested from my house. SI Harmel Singh gave me bearing and abuses. After that this case was planted upon me.” He offered to lead defence evidence, which he closed by tendering the postal receipt Mark-‘A’ and complaint Mark-‘B’. After hearing the learned Additional Public Prosecutor for the State, learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling dissatisfied with the same, he preferred the instant appeal. 5. I have heard the learned counsel for the parties and have gone through the record with due care and circumspection. 6. To begin with Mr.Bipan Ghai, Advocate appearing on behalf of the appellant urged with great eloquence that the conscious possession of the appellant with regard to the bags allegedly containing poppy husk has not been established as mere sitting of the appellant on the same, by no stretch of speculation, can constitute such possession. 6. To begin with Mr.Bipan Ghai, Advocate appearing on behalf of the appellant urged with great eloquence that the conscious possession of the appellant with regard to the bags allegedly containing poppy husk has not been established as mere sitting of the appellant on the same, by no stretch of speculation, can constitute such possession. To drive home this point, he has sought to place abundant reliance upon the observations made in re: Baldev Singh vs. State of Punjab [2005(2) LAW HERALD (P&H) 107] : 2005(1) Recent Criminal Reports (Crl.) 823, State of Punjab vs. Nachhattar Singh @ Bania 2007(3) Recent Criminal Reports (Crl.) 1040 and S ukhdev Singh alias Sukha vs. State of Punjab 2006(1) Recent Criminal Reports (Crl.) 4. 7. To overcome this submission Mr.Antar Singh Brar, Deputy Advocate General, Punjab maintained that the appellant has not furnished any explanation for being present at the place of recovery and that being so, it is attributable to him that the bags did belong to him. This contention is untenable. Merely because the accused was found sitting on poppy husk bags and the failure to give any satisfactory explanation for being present there, is not enough to prove that the appellant was in conscious possession of such bags. There is nothing in the evidence of Investigator that he had enquired about the ownership of these bags and further, how the same were transported to the place of recovery. The record is quite barren to show that these bags were found to be the ownership of the appellant. In the authorities sought to be relied upon adequately by Mr.Ghai, an identical incident had arisen for consideration. It was held that it does not prove that the accused was in conscious possession of bags. The Investigator should have conducted further investigation to prove that the accused was really in possession of these bags. An identical point had arisen in re: State of Punjab vs. Balkar Singh and another, 2004 Supreme Court Cases (Crl.) 838, wherein the Apex Court observed that the failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Thus, here in this case, the conclusion is inevitable that the prosecution has dismally faltered to establish conscious possession of the appellant over the poppy husk bags. 8. Thus, here in this case, the conclusion is inevitable that the prosecution has dismally faltered to establish conscious possession of the appellant over the poppy husk bags. 8. Mr.Ghai further pressed into service that as per Ex.PA, the consent memo, the appellant was told that the bags were suspected to contain poppy husk and he should tell either he wants to be searched before a DSP or a Magistrate, which is clear cut violation of the mandatory provisions of Section 50 ibid. As against this Mr.Brar submitted that DSP being a Gazetted Officer, the offer was made to the accused to tell as to whether or not he wants to be searched by him. There is no force in this submission. The inbuilt, engrafted by the Legislature in the language of Section 50 ibid is that it is imperative upon the Investigator to make the accused aware of his right that it is his option either to be searched in the presence of a Gazetted Officer or a Magistrate. The cogent reason behind this inbuilt is that the Legislature has prescribed a stringent punishment for the offence under Section 15 ibid. It is a very valuable right of the accused. In the case in hand, by informing the accused to be searched in the presence of a DSP or a Magistrate, his right has been abridged. The language of Ex.PA speaks volumes of partial offer, which is abhorrent to the spirit of Section 50 ibid. To wriggle out of this lapse on his part, SI Harmel Singh PW1 Investigator deposed in the Court that the accused was asked whether he wants to get his person searched in the presence of any Gazetted Officer or a Magistrate, but the accused reposed his faith in the police party. In dichotomy between the oral evidence and documentary evidence, normally the documents are taken into account as they seldom lie. By no process of reasoning, Ex.PA can be washed off by the above extracted ‘words’ trickled from the mouth of the Investigator. 9. In re: Dilip & Anr . Vs. State of M.P. 2007(1) Recent Criminal Reports (Crl.) 586, the personal search of the accused was conducted, but no contraband was found. Thereafter, on search of the scooter of the accused, opium was recovered. 9. In re: Dilip & Anr . Vs. State of M.P. 2007(1) Recent Criminal Reports (Crl.) 586, the personal search of the accused was conducted, but no contraband was found. Thereafter, on search of the scooter of the accused, opium was recovered. The Apex Court laid down that in such a case provisions of Section 50 ibid were required to be complied with even if recovery was effected from the scooter. Search of the scooter did not require compliance of Section 50 ibid, but in view of the fact that personal search of the accused was also conducted, it was obligatory to comply with provisions of Section 50 ibid. 10. Thus, to say the least of it, the provisions of Section 50 ibid have been give a go bye. The seal after use was allegedly handed over to HC Rajwinder Singh, who has been kept off the witness box. So, in view of the provisions of Section 114(g) of the Indian Evidence Act, 1872, an adverse inference has to be drawn against the conduct of the prosecution. Mr.Ghai further, canvassed at the Bar that the prosecution has not complied with the mandatory provisions of Section 55 ibid as the case property was neither produced nor deposited with the SHO Incharge, rather the same was allegedly deposited with MHC Jagga Ram and thus, the prejudice has been caused to the accused. He further agitated at the Bar that the provisions of Section 57 ibid have also been flagrantly violated as SI Harmel Singh did not send detail regarding arrest and seizure to his immediate superior officer and as its consequence, the proceedings are vitiated and furthermore, no independent witness was joined by the Investigator, albeit, a wireless message was sent to DSP Surinder Singh to bring with him some independent witness for search of the accused. 11. It is further submitted that MHC Jagga Ram and Constable Rulda Ram were not tendered by the prosecution for their cross-examination by the accused and thus the accused has been robbed off his valuable right of cross-examination. 12. On the other hand, Mr.Brar could not refute these contentions in a manner as desired by law. Section 55 ibid reads in the following terms. 55. 12. On the other hand, Mr.Brar could not refute these contentions in a manner as desired by law. Section 55 ibid reads in the following terms. 55. Police to take charge of articles seized and delivered.- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 13. From a bare reading of the above language, it transpires that SI Harmel Singh was required to produce and deposit the case property with the SHO of the concerned Police Station. As emanates from his evidence, he was posted as incharge police post Chhajjli on the day of recovery. It is in his evidence that upon reaching the police station, he deposited the case property with MHC Jagga Ram with seals intact. It is in the crossexamination of this witness that “I did not produce the case property and the accused before SHO in the Police Station as SHO was not present there”. It is in his further cross-examination that “I did not make any specific note regarding non-availability of the SHO in the zimni”. If the SHO was not in attendance, he should have at least recorded a note to this effect in the case diary. The prosecution has not put on record the departure report of the SHO concerned. Thus, palpably the provisions of Section 55 ibid though, the same are merely directory in nature as ruled in re: T.Paul Kuki vs. State of West Bengal, (1993) 3 Crimes 660 (Cal) (DB), have not been complied with but inter alia the prejudice has been caused to the appellant for nonobservance of the same. As follows from the record, MHC Jagga Ram with whom the case property was allegedly deposited as well as Constable Rulda Ram through whom the samples were sent for Chemical Analysis have not been offered for their cross-examination by the accused. 14. As follows from the record, MHC Jagga Ram with whom the case property was allegedly deposited as well as Constable Rulda Ram through whom the samples were sent for Chemical Analysis have not been offered for their cross-examination by the accused. 14. In re: Gian Singh vs. State of Punjab [2006(2) LAW HERALD (P&H) 1006] : 2006(2) Recent Criminal Reports (Crl.) 611, affidavits of the police constables were tendered in Court, but they were not produced in Court for their crossexamination. This Court held that this certainly is a material lacuna which knocks at the bottom of the case and can be taken against the prosecution. So, in view of these observations, due to non-tendering of these witnesses for their cross-examination, a dent has come to occur in the prosecution case. 15. For the reasons recorded hereinbefore, this appeal succeeds and is accepted, setting aside the impugned judgment/order of sentence. Sequelly, the appellant is hereby acquitted of the charge framed against him and is also discharged of the bail bonds furnished by him during the pendency of the instant appeal. ——————