JUDGMENT 1. - This appeal s directed against the judgment of the learned Special Judge, NDPS Act Cases, Pratapgarh, whereby he convicted accused appellant Ratanlal of the offence u/s.8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred-to as "the Act" and sentenced him to ten years' R.I. and a fine of Rs.one lac and in default to further undergo one year's R.I. 2. The charge against the accused appellant Ratanlal was that the opium measuring 11.500 kg. was recovered from his house situated at Village Gadola on 30.4.2001 at 8.50 A.M. The information regarding the accused having opium in his house, was received by the S.H.O. Raghuveer Singh (PW 1), which he entered in the Rojnamcha Report and on being convinced that the opium may be removed, he went at the site, gave a notice to the accused Ratanlal under Sec.50 of the Act and conducted search. He found the opium kept in a steel tank recovered from the chowk of the house, on being dug-out. Upon asking, no licence was found for keeping the illicit opium. The same was recovered after taking the sample which was sent for chemical examination and thereafter completing the formalities of Sections 52 and 55 of the Act, challan was filed against the accused. The accused was charged u/s.8/18 of the Act, to which he pleaded not guilty. The prosecution examined ten witnesses. The statement of accused u/s.313 CrPC was recorded. He produced Ram Chandra (DW 1) in his defence. After hearing the arguments, the learned trial Judge convicted the accused as above. 3. Learned counsel for the accused appellant has confined his argument in this appeal only on the question of possession of the accused over the contraband opium. In this connection, he has drawn my attention towards the statement of Raghuveer Singh (PW 1) and Amar Singh (PW 6), who were the searching Officers. 4. In examination in chief, Raghuveer Singh (PW 1) has stated that on getting information, he reached at the house of accused Ratanlal and recovered opium kept in a steel tank after digging chowk of the house. When he was cross examined on this point, he has stated that he did not enquire from the neighbours and the village people as to whether the chowk belonged to the accused Ratanlal or not. This chowk was surrounded by 12 ft. When he was cross examined on this point, he has stated that he did not enquire from the neighbours and the village people as to whether the chowk belonged to the accused Ratanlal or not. This chowk was surrounded by 12 ft. boundary but there was no roof on it. This statement is based on the Ex.P.14 in which portion `A' has been shown as chowk, which is said to be an open place and adjoining to this, portions `B' `C' and `I' are covered with tin shed and at portion `1', there is the house, said to be of accused Ratanlal, whereas another investigating officer Amar Singh (PW 6) has stated that portion `A' of Ex.P.14 from which recovery was made, was not open place and there was no tin shed on it. Keeping in view these uncorroborative statements of recovery Officer and investigating officer, it creates heavy doubt as to whether the recovery was made from the house or chowk of accused Ratanlal. This fact is further strengthened from the testimony of both these witnesses with regard to taking no proof about the ownership of place from where the recovery has been made. While turning to the statement of recovery officer Raghuveer Singh (PW 1), he has clearly stated in his cross examination that he did not find any article or document at places `A', `B' and `C' of Ex.P.14 from which it can be gathered that the accused was having ownership directly with the place of recovery. He neither obtained the `patta' of the house nor made any enquiry from the neighbourers or local body. The relevant portion of statement of Raghuveer Singh (PW 1) in this regard is as under: " ;g lgh gS fd ,0ch0lh0 LFkku ls gesa ,slh dksbZ oLrq o nLrkost ugha feyk ftlls eqyfte dk lh/kk lEcU/k LokfeRo ls tksM+k tk ldsA ;g lgh gS fd eSaus ftl edku o LFkku ls vQhe feyh mldk jruyky dk fjgkb'kh edku gksus ckcr~ lfpo ;k ljiap ls rLnhd ugha yhA " 5. Likewise, Amar Singh, investigating officer (PW 6) has also stated that during investigation, he could not testify from the record by the evidence of Sarpanch or Patwari that the place from where the recovery has been made, belonged to Ratanlal's ownership and possession. Likewise, Amar Singh, investigating officer (PW 6) has also stated that during investigation, he could not testify from the record by the evidence of Sarpanch or Patwari that the place from where the recovery has been made, belonged to Ratanlal's ownership and possession. The relevant portion of Amar Singh's cross examination is as under: " esjh rirh'k esa cjkenxh ls lacaf/kr LFkku o edku jruyky dh feyfd;r o dCts dk gksuk dk lcwr izkIr ugha gqvkA eSaus dksbZ ljiap ;k iVokjh ls dksbZ rLnhd yh gks rks vkt /;ku ugha gSaA i=koyh esa eq>s ,slh dksbZ rLnhd ugha fn[kh gSA " 6. In this way, when the place of recovery belonged to the accused Ratanlal's ownership and possession, is not proved, then the finding of the learned trial Judge that the presumption u/s.35 of the Act be drawn against the accused, is contrary to law. While drawing presumption u/s.35 of the Act about culpable mental state of the accused, the Court can also presume the existence of such state but it shall be a defence for the accused to prove that he had no such mental state with respect to the act charged. Under Explanation (2) to 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. This presumption has to be drawn when it is first established that the contraband article has been kept or sealed in any building, conveyance or enclosed place over which the the accused has ownership or possession and that search has to be conducted as required under Section 100 CrPC. Sub-section (4) CrPC which reads as under: "100. Persons in charge of closed place to allow search.- (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do." 7. Thus, Sub-section (4) provides that before making a search, two or more independent and respectable inhabitants of the locality be called. Here, in the present case, as stated above from the testimony of two police officers, this compliance has not been made and, consequently, the search proceedings are vitiated. 8. Accordingly, this appeal is allowed. The judgment of the learned Special Judge, NDPS Act Cases, Pratapgarh, dated 26.2.2003, convicting accused appellant Ratanlal of the offence u/s.8/18 of the Act and sentencing him to ten years' R.I. with a fine of Rs.1 lac is set aside and he is acquitted of the charges levelled against him. He is in jail. He shall be released forthwith, if not required in any other case.Appeal allowed. *******