Judgment K.S.Garewal, J. 1. Nahar Singh was found guilty of possession of 10 bags of poppy husk, each weighing 35 kgs, a total quantity of 350 kgs. The judgment was pronounced by the learned Judge, Special Court, Moga on February 2,2000. Nahar Singh was sentenced to rigorous imprisonment for 12 years and to pay fine of Rs. 2 lacs, in default of payment, he was to further undergo for three years. 2. On May 10, 1998 at 8 a.m. Sub Inspector Hardevinder Singh (PW-2) was present at Bhame Kalan Bus Stand. He was Station House Officer of P.S. Jhunir. He had some police officials accompanying him including ASI Gurbax Singh and ASJ Ajit Singh. The Sub Inspector received an information that Nahar Singh, a known peddler of poppy husk, was in his fields on the path leading to Lakhvirwala. If a raid was conducted, a huge quantity of poppy husk could be recovered. SI Hardevinder Singh sent a wireless message to DSP Mander Singh Sandhu who reached the spot within half an hour. Together they went to the spot and when they reached Nahar Singhs field they found him sitting on the gunny bags. Nahar Singh was detained and the gunny bags were searched. Samples were taken from each of the ten bags. Whereafter, the samples were separately sealed and taken into possession, 3. A report was sent to the Police Station on the basis of which FIR was registered and the investigation continued. The samples were sent for chemical analysis and it was found that the samples were of "chura poppy heads". Therefore, Nahar Singh was sent up for trial for possession of 350 kgs of poppy husk, to which he pleaded not guilty and claimed trial. 4. At the trial, the prosecution examined DSP Mander Singh Sandhu (PW-1) and SI Hardevinder Singh (PW-2). When the accused was examined under Section 313 Cr.P.C. he did not present any counter story but pleaded innocence and false implication. However, when called on to enter defence, Nahar Singh examined Mohinder Singh (DW-1) as a defence witness. Mohinder Singh stated that he was Sarpanch of the village. In May, 1998 the police had raided the house of the accused in his presence and in the presence of 4-5 other persons. Nothing incriminating was recovered from the house but the police took him with them. Mohinder Singh stated that he was Sarpanch of the village. In May, 1998 the police had raided the house of the accused in his presence and in the presence of 4-5 other persons. Nothing incriminating was recovered from the house but the police took him with them. The witness learnt the next day that Nahar Singh had been arrested in a case of bhukki. This was a false case. 5. The accused also examined Patwari Rajinder Parshad (DW-2) who produced copies of akas latha which showed the fields belonging to Nahar Singh and to the Sarpanch. These were far apart. 6. The learned Trial Judge came to the conclusion that even though the provision of Section 50 of the NDPS Act did not apply to the present case, the Investigating Officer realizing the implication of this provision had specifically asked the accused whether he wanted to be searched before a gazetted officer or before a magistrate. The accused had replied that he wished to be searched before a gazetted officer and search was conducted by the gazetted officer who was present with the police party, namely DSP Mander Singh Sandhu (PW-1). It was a fair search under Section 50 of the Act which had been complied with. 7. Furthermore, it was argued that no independent witness had been produced by the prosecution. The learned Judge cited some judgments and found that the case was not weakened in the absence of independent witness as the police witnesses were responsible officials of high rank who had no enmity with the accused. It was a heavy quantity of poppy husk which police could not afford to plant. 8. As regards the arguments that the provision of Section 100 (4) Cr.P.C. had not been complied with, the learned Judge held that this did not vitiate the trial because if the raiding party had tried to call an independent witness from the locality, the whole object of surprise would have been frustrated. The court relied on case law to hold that contravention of this provision may effect the credibility of the evidence but it did not effect the admissibility of the evidence and the conviction based on such evidence. As regards failure of compliance of Section 42, the court held that such failure would not be fatal to the prosecution because a raid had been conducted at night at 10.30 p.m. between sunset and sunrise. As regards failure of compliance of Section 42, the court held that such failure would not be fatal to the prosecution because a raid had been conducted at night at 10.30 p.m. between sunset and sunrise. Defence evidence was also discussed but held to be unreliable. The argument that the site plan prepared by the Patwari did not tally with the site plan prepared during the investigation, names of the owners of the fields were not mentioned, was rejected. The court came to the conclusion that the police could not be expected to plant such a heavy quantity of poppy husk when there was no enmity or ill-will with the accused. After dealing with a few inconsequential arguments, the court pronounced the verdict and held the accused guilty forthe offence of possession of 350 kgs of poppy husk. 9. The learned Senior Counsel for the appellant began his submission by referring to Section 42 and argued that the person who gave the secret information was not examined. The secret information was not recorded in writing. This seriously prejudiced the accused in his defence The provision of Section 42 could not be bye-passed if the search was between sunset and sunrise. 10. It was next argued that even the provision of Section 50 were violated. The presence of DSP Mander Singh Sandhu at the time of search was not established from the record. There were no documents of investigation which would establish his presence. The recovery memo was not enough because this could be prepared later. Lastly, it was submitted that the prosecution failed to establish conclusive and conscious possession of the bags by the accused. The accused was not in possession of the field where the bags were lying. The fields of the accused were at a distance of nine acres from the spot. The sole independent witness was not produced. No local person was joined in the raid, therefore, the prosecution was full of defects which entitles the accused to acquittal. 11. We feel that there was something unreal about the whole affair. The consignment of 10 bags of poppy husk had not descended from the sky, to be stacked by the roadside. The sole independent witness was not produced. No local person was joined in the raid, therefore, the prosecution was full of defects which entitles the accused to acquittal. 11. We feel that there was something unreal about the whole affair. The consignment of 10 bags of poppy husk had not descended from the sky, to be stacked by the roadside. If what was found at the spot is believed and it is accepted that the accused was sitting on 350 kgs of poppy husk packed in bags, we must look for corroborative evidence to establish that the accused had indeed collected ten bags at the spot. 12. Poppy husk is the by-product of the opium industry. After the poppy flower ripens, its juice is extracted to form a crude type of opium which is then processed to convert into morphine and heroin. From the poppy fields to the bags containing poppy husk, several processes and procedures are involved and these cover the entire gamut of offences declared punishable under Section 15 of the Act. Law punishes persons who produce, transport, import/export, sell/purchase, use or omit to warehouse poppy straw. In addition to the above criminal activities, possession of poppy straw is also punishable. We have no idea who cultivated the crop of poppy and produced poppy straw, who transported it from the fields and sold it to the accused, who imported/exported poppy straw or who had omitted to store it in a warehouse. There is a complete and continuous chain of criminal activities which must have been performed before Nahar Singh was found sitting on the bags of poppy husk. 13. The Courts always try to look for corroboration to check and cross-check the evidence of witnesses. In the present case, corroboration is totally lacking. The prosecution had not only failed to detain the producers, purchasers, importers/exporters and sellers of poppy straw but also failed to produce corroborative evidence. It is difficult to accept that Nahar Singh was actually found sitting on the ten bags of poppy husk when he was arrested. We do not know who brought the poppy husk to the spot. We also do not know who was the owner of the consignment or where the consignment originated and where was its destination. It is difficult to accept that Nahar Singh was actually found sitting on the ten bags of poppy husk when he was arrested. We do not know who brought the poppy husk to the spot. We also do not know who was the owner of the consignment or where the consignment originated and where was its destination. In the presence of such gaps in the prosecution case, the failure of the Investigating Officer to send a report under Section 42 and his treating the case as one of recovery from the person of the accused under Section 50, further weakened the prosecution case. 14. We are not convinced with the version of the prosecution. Therefore, presumption of culpable mental state (section 35 ) and presumption of possession for which the accused has failed to give satisfactory account (under Section 54) cannot be taken against the accused. 15. We would also like to draw support from State of Punjab v. Balkar Singh and another 2004 Supreme Court Cases 582, wherein the accused was held guilty of possession of 100 bags of poppy husk lying in a field, on which he was found sitting. The police had not investigated how these 100 bags had been transported to the spot. The police had. also failed to adduce any evidence to show the ownership of the poppy husk. The Court held that the police should have conducted further investigation to prove that the accused was really in possession of these articles. The presence of the respondents at the place from where the bags of poppy husk were recovered could not be taken as evidence of possession. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. Similar view was also taken by a Division Bench of this court in Sukhdev Singh alias Sukha v. State of Punjab 2006 (1) RCR (Criminal) 4 and a Single Bench in Baldev Singh v. State of Punjab 2005(1) R. C.R. (Criminal) 823. 16. The present case is similar to the above cases. We find that the prosecution had failed to establish that the accused was in conclusive and conscious possession of 10 bags of husk. 17. Consequently, this appeal is allowed. The accused is acquitted of the charge. He shall be released forthwith, if not required in any other case. 16. The present case is similar to the above cases. We find that the prosecution had failed to establish that the accused was in conclusive and conscious possession of 10 bags of husk. 17. Consequently, this appeal is allowed. The accused is acquitted of the charge. He shall be released forthwith, if not required in any other case. If he is on bail, his bail bond shall stand discharged. Appeal allowed.