JUDGMENT : S.L. KOCHAR, J. 1. Both these appeals are arising out of impugned judgment, therefore, decided by this common judgment. 2. The appellants have preferred this appeal against the judgment dated 16-3-2004 passed in Special Criminal Case No. 95/00 by learned Special Judge (N.D.P.S. Act), Mandsaur, whereby convicted the appellant Vishnudas for the offence punishable under section 8/21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) and appellant Ramgopal has been convicted under section 29 of the N.D.P.S. Act, sentenced to both to R.I. for fifteen years and fine of rupees One lac, in default of payment of fine they shall suffer additional R.I. for three years. 3. Learned counsel for the appellants have not disputed the seizure of 1 Kilogram smack from the possession of appellant Vishnudas as well as seizure of motorcycle from the possession of co-accused Surajmal, whose appeal is not before this Court. This is also admitted position that Ramgopal was not caught on the spot along with other co-accused persons and from the dickey of motorcycle 4 Kilogram smack was seized at the instance of co-accused Surajmal, who was having key of the dickey in his possession and handed over the same to police. Learned counsel for the appellant Vishnudas has submitted that he would be liable for conviction for only 1 Kilogram smack seized from his person and not for 4 Kilogram smack seized at the instance of co-accused Surajmal from the dickey of motorcycle, key of which was with Surajmal. Learned counsel has also submitted that Vishnudas can be convicted only for having in possession of pure quantity of smack. According to Forensic Science Laboratory report, Ex.P/26, 10 Kilogram sample seized from Vishnudas was containing 20.37 percent of diacetylmorphine (Heroin) and appellant can be convicted only for 203.7 Gram pure quality of Heroin, which falls within the category of non-commercial quantity punishable under section 8/21(b) of the Act. Learned counsel has placed reliance on Supreme Court judgment passed in case of E. Micheal Raj vs. Intelligence Officer Narcotic Central Bureau, 2008 AIR SC (Weekly) 2365 in Criminal Appeal No. 1250/2005 judgment dated 11.3.2008. 4. Learned counsel for the appellant Ramgopal has submitted that the appellant was not present on spot along with two co-accused persons and no contraband article was seized from him. 4. Learned counsel for the appellant Ramgopal has submitted that the appellant was not present on spot along with two co-accused persons and no contraband article was seized from him. There is no evidence on record that appellant Ramgopal had handed over his motorcycle to both the appellants knowingly and willingly for transportation of smack/Heroin. According to learned counsel, no case is made out against the appellant Ramgopal. 5. Learned counsel for the State has supported the impugned judgment passed by the learned trial Court. 6. Having heard the learned counsel for the parties and after perusing the entire record, this Court is of the view that appellant Vishnudas cannot be convicted for seizure of 4 Kilogram smack from the possession of co-accused Surajmal. There is no charge of conspiracy against Vishnudas with Surajmal. There is no charge framed by the learned Special Judge saying that appellant Vishnudas was having conscious possession of 4 Kilogram smack seized at the instance of Surajmal from the dickey of motorcycle, which was locked and key was with co-accused Surajmal. This is true that both were apprehended going on motorcycle owned by the appellant Ramgopal but merely going would not be sufficient to establish that appellant Vishnudas was knowing and having conspiracy with him for taking his 4 Kilogram Heroin as well as 1 Kilogram Heroin, seized from the possession of appellant Vishnudas. The appellant Ramgopal has been convicted with the aid of sections 29 and 35 of the Act. Section 29 provides punishment for abatement and criminal conspiracy, but same is not proved against the appellant Ramgopal. Only seizure of motorcycle registered in the name of this appellant, from the possession of Surajmal would not be sufficient to draw presumption that he entered into criminal conspiracy to commit offence punishable under section 8/21 of the N.D.P.S. Act. Learned trial Court has used provision of section 35 of the Act, which reads as under:- “35. Presumption of culpable mental state: (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation - In this section “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.” 7. It is crystal clear from the wordings of section 35 sub-section (2) that presumption of culpable mental state of the accused can be drawn only when Court believes it to exist beyond doubt and not merely its existence by a preponderance of probability. In the case at hand, neither the appellant Ramgopal was with Surajmal and Vishnudas nor any contraband article was seized from his possession, merely his motorcycle was used by them would not be sufficient to prove beyond reasonable doubt that he was having culpable mental state and handed over the motorcycle knowing well that Surajmal would use the same for transportation of seized contraband smack. The possibility of giving motorcycle by appellant Ramgopal just in a friendly term under bona fide belief that Surajmal or appellant Ramgopal would use the same for legal purpose is not ruled out. It is not uncommon that owner of the vehicle is parting vehicle for time being to his friends or relatives. 8. The learned trial Court has drawn presumption under section 35 of the Act also on the ground that appellant Ramgopal has not explained as to how motorcycle reached to the Surajmal. In Ex.P/14, seizure memo regarding seizure of smack and sample from the possession of appellant Vishnudas, seizure of motorcycle is not mentioned whereas in seizure memo of co-accused Surajmal Ex. P/15, seizure of Kawasaki Bajaj motorcycle with full description is specifically mentioned, this circumstance also shows that appellant Vishnudas and Surajmal both had not obtained the motorcycle from appellant Ramgopal. It is well settled legal position that prosecution has to prove its case beyond reasonable doubt and cannot get any benefit of weakness of the defence as well as whenever there are two sets of evidence or two presumptions are possible from the evidence, the evidence and the presumption in favour of the accused is to be relied upon. It is well settled legal position that prosecution has to prove its case beyond reasonable doubt and cannot get any benefit of weakness of the defence as well as whenever there are two sets of evidence or two presumptions are possible from the evidence, the evidence and the presumption in favour of the accused is to be relied upon. In the light of this settled legal position, if appellant Ramgopal kept silent would not mean that he handed over the motorcycle for illegal transportation of smack by co-accused Surajmal. Yet there is one more provision in the Act i.e. section 25 prescribing punishment for allowing premises, conveyance, etc to be used for commission of an offence. According to this section, prosecution is required to prove that the appellant Ramgopal knowingly permitted to use his vehicle by the appellant Surajmal for transportation or taking of contraband narcotic drug, the smack and in the considered opinion of this Court, there is absolutely no evidence led by prosecution to this effect. 9. In the result, Criminal Appeal No. 343/2004 of the appellant Ramgopal is allowed, his conviction and sentence passed by the trial Court by the impugned judgment are hereby set aside. He is on bail, his bail bond and surety bond stand discharged. 10. The appeal of appellant Vishnudas vide Criminal Appeal No. 639/04 is allowed in part, his conviction under section 8/21(c) read with section 29 of the NDPS Act are hereby set aside and he is convicted in view of the Supreme Court dicta in case of E. Micheal Raj (supra) only having in possession of pure quantity of smack, which would be 203.7 Gram in pure form under section 8/21(b) of the Act. For commission of offence under section 8/21(b) of the Act minimum jail sentence and minimum fine amount of rupees One lac are not prescribed. The sentence may extend up to ten years and fine may extend up to One lac rupees are prescribed for punishment under this section. From the possession of appellant Vishnudas, non-commercial quantity i.e. less than 250 Gram Heroin was seized, therefore, he is not liable for minimum jail sentence and fine amount. The sentence may extend up to ten years and fine may extend up to One lac rupees are prescribed for punishment under this section. From the possession of appellant Vishnudas, non-commercial quantity i.e. less than 250 Gram Heroin was seized, therefore, he is not liable for minimum jail sentence and fine amount. There is no material in the record to show that he is the habitual offender or facing some more case for commission of offence under the Act, therefore, in the opinion of this Court ends of justice would be served to sentence him to the period already undergone (8 years and 4 days) and fine of rupees Eighty thousand, in default of payment of fine he shall suffer additional R.I. for two years. The learned trial Court is directed to release the appellant Vishnudas forthwith upon his depositing fine amount and if not wanted in any other criminal case. 11. Original judgment is retained in Criminal Appeal No. 639/2004 and a copy whereof be placed in the record of connected Criminal Appeal No. 343/2004. 12. Office is directed to send a copy of this judgment along with the record of the trial Court to the trial Court.