JUDGMENT 1. - This appeal has been filed under Section 374(2) Cr.P.C. against the judgment and order dated 19.12.2002 passed by the learned Special Judge, N.D.P.S. Cases, Jhalawar in Sessions Case No. 65 of 2001, State v. Jankilal & Ors. whereby the learned trial Court has convicted and sentenced the accused-appellants as under:- For offence under Section 8/17 of the N.D.P.S. Act - 10 years R.I. With a fine of Rs. One Lac and in default of payment of fine to further undergo 3 years additional simple imprisonment. For offence under Section 8/18 of the N.D.P.S. Act - 10 years R.I. With a fine of Rs. One Lac and in default of payment of fine to further undergo 3 years additional simple imprisonment. For offence under Section 8/30 of the N.D.P.S. Act - 5 years R.I. With a fine of Rs. 50,000/- and in default of payment of fine to further under go 11/2 years Simple imprisonment. All the sentences to run concurrently. 2. Briefly stated facts of the case are that PW-12 Jagdish Prasad Yadav, S.H.O., Police Station, Bhawani Mandi received a secret information Ex.P24 on 18.9.2001 at 1:30 A.M. on telephone to the effect that accused Jankilal S/o Fateh Lal was doing illegal business of narcotic drugs and in his house, he along with his son Hanish Chand and others namely Mangilal, Madanlal and Kriparam were preparing heroin and the same was intended to be sold to some body in the morning. This secret information was entered in Ex.P27 Rojnamcha Aam at S.No. 904 at 1:30 A.M. It is mentioned. in the Rojnamcha report that the secret information was being sent to the S.P., Jhalawar and on telephone C.O., Bhawani Mandi was also informed. PW-7 Jai Prakash F.C. of the Police Station was sent on 18.9.2001 along with sealed envelope containing the information under Section 42 of the N.D.P.S. Act with him and to deliver the same to the S.P., Jhalawar vide memo Ex.P25. In Ex.P25 at place. C to D, the S.P., Jhalawar has made an endorsement to the effect that copy was received on 18.9.2001 at 10:30 A.M. PW-7 Jai Prakash returned to Police Station back on 18.9.2001 at 1:40 A.M. and entry in this regard was made in Ex.P26 Rojnamcha at S.No. 906. In Ex.P25 at place. C to D, the S.P., Jhalawar has made an endorsement to the effect that copy was received on 18.9.2001 at 10:30 A.M. PW-7 Jai Prakash returned to Police Station back on 18.9.2001 at 1:40 A.M. and entry in this regard was made in Ex.P26 Rojnamcha at S.No. 906. It is also the case of the prosecution that PW-9 Kalu Ram C.I. came in the Police Station at 2:10 A.M. on 18.9.2001 and he along with police officials started from the Police Station to the village of accused as per the secret information in a Jeep and an entry was made in this regard in Ex.P21 Rojnamcha at S.No. 909. Before starting from Police Station, the matter was discussed with PW-12 Jagdish Prasad Yadav S.H.O., Police Station as it was not possible to obtain a search warrant in the. night and since the heroin was being manufactured at the house of the accused, therefore, it was thought proper to proceed towards the spot along with the police party and in this regard entry was made in Ex.P20 Rojnamcha. The police party after reaching at the spot, as per the secret information, made efforts to arrange independent witnesses. In this connection, a Tehrir was given to Ratan Singh. But in the early hours of the day, witnesses could not be arranged, therefore, PW,2 Ratan Singh and Pranvir Singh members of police party were made independent witnesses in the case. It is further the case of prosecution that thereafter the house of accused Jankilal was surrounded and door of the house was knocked by one of the member of the police party and on knocking the door, it was opened by accused Janki Lal. The police party entered in the house and disclosed the identity and the purpose. In the right hand side of the house, in one room accused namely Jankilal, Harish Chand, Mangilal, Madan Lal and Kripa Ram were found sitting and there was one LPG Gas Cylinder along with BPL Stove, which was burning and giving light. In the room a drum full of liquid which was of dark gray colour material was found and in a Parati, the material therein gave a smell of smack. In other plastic drum, there was some liquid material, which was found as opium. In the room a drum full of liquid which was of dark gray colour material was found and in a Parati, the material therein gave a smell of smack. In other plastic drum, there was some liquid material, which was found as opium. In plastic bags, Sodium Carbonate and Ammonium Chloride was found which was being used for preparing contraband material. The above material found from the place was sealed, seized and the accused were asked whether they had licence to manufacture drugs to which the accused denied. The accused, thereafter were arrested and brought to the Police Station. F.I.R. No. 227/2001 was registered in the Police Station. A detailed report under Section 57 of the N.D.P.S. Act Ex.P12 was sent to the S.F., Jhalawar on 19.9.2001, which was received by the S.P., Jhalawar on 19.9.2001 at 5:15 P.M. The samples, which were collected on the spot were sent for chemical examination. Investigation of the case was handed over to PW-8 Man Singh. After completion of usual investigation in the matter, charge-sheet was filed on 6.12.2001 in the Court of Special Judge N.D.P.S. Case, Jhalawar.3. Charges were framed against accused persons on 17.1.2002 under Sections 8/18 and 8/21 of the N.D.P.S. Act to which accused denied and claimed trial. Charge framed was subsequently amended and charge under Section 8/17 of the N.D.P.S. Act was added after hearing both sides on 27.7.2002. In support of its case, the prosecution examined as many as 12 witnesses and tendered several documents in evidence. In the statement recorded under Section 313 Cr.P.C., accused Jankilal stated that he was falsely implicated in the case. It is also stated that the house from where, recovery allegedly made was not his house and no contraband material was recovered from his house. Accused Harish Chand, who is son of accused Jankilal stated that he has got no concern with the house from where contraband material was recovered. He has also stated that he was not at the house when recovery was made and he has been implicated falsely. Accused Madanlal, Mangilal and Kripa Ram have stated that they were falsely implicated in the case and were not in the house when alleged recovery was made. No evidence in defence has been produced. The learned trial Court after hearing final submissions convicted and sentenced the accused as indicated hereinabove.4. Accused Madanlal, Mangilal and Kripa Ram have stated that they were falsely implicated in the case and were not in the house when alleged recovery was made. No evidence in defence has been produced. The learned trial Court after hearing final submissions convicted and sentenced the accused as indicated hereinabove.4. I have heard the learned counsel for the accused-appellants as well as the learned Public Prosecutor for the State and carefully gone through the material available on the file.In the present matter, points for consideration are, (1) Whether not arranging independent witnesses is fatal to the prosecution? (2) Whether compliance of mandatory provisions of Sections 42 and 57 of the N.D.P.S. Act has been made in the case or not? (3) Whether compliance of the provisions of Section 55 of the N.D.P.S. Act was made or not and further the memos were prepared at Police Station or at the spot? (4) Whether the contraband material recovered in the case was in conscious/exclusive possession of the accused? (5) Whether the learned trial Court has rightly convicted and sentenced the accused? Now, I propose to examine the points framed by me.Point No. I5. It is to be seen that in the instant case Ex.P2 Tehrir was prepared and given to Ratan Singh A.S.I. of Police Station, Bhawani Mandi on 18.9.2001 to arrange two witnesses in the case. Ratan Singh A.S.I. made a report with reasons on Ex.P2 to the effect that after efforts made to arrange the witnesses, they could not be found. PW-2 Rataa Singh has stated that he was given Tehrir Ex.P2 and he made all efforts. PW-3 Ghanshyam and P.6 Latoor Lal have also supported the statement of PW-2 in this regard. PW-1 is Durge Shanker. He has also stated that Ratan Singh was asked to arrange independent witnesses.6. The learned counsel for the appellants argued that the evidence in this case is not reliable as there are contradictions in the statement of PW-1 Durga Shanker, PW-2 Ratan Singh, P.3 Ghanshyam and PW-6 Latoor Lal. Therefore, Ex.P2 in fact is a document, which was prepared subsequently when police party reached to the Police Station.7. On the other hand, the learned Public Prosecutor contends that there is no reason why the police should prepare false documents after reaching the Police Station. Therefore, Ex.P2 in fact is a document, which was prepared subsequently when police party reached to the Police Station.7. On the other hand, the learned Public Prosecutor contends that there is no reason why the police should prepare false documents after reaching the Police Station. It is also submitted that there may be slight variation in the testimony of witnesses but the factum, which is essential to prove, is that as to whether efforts were made to arrange the independent witnesses in the case looking to the stringent provisions of the N.D.P.S. Act.8. I have considered the above submissions. It appears from perusal of the secret information and the information sent to the S.P., Jhalawar that the incident is of the night and in the early hours when police party reached at the spot, they tried to arrange independent witnesses and it appears more probable that in the early hours of the day, Ratan Singh could not find persons to become witnesses in this case. It is correct that there must be independent witnesses in such matters, but after required efforts, witnesses could not be arranged then in that circumstance, the entire case of the prosecution is not liable to be thrown out. The law, which has developed on the point is that the evidence of police witness can be take into consideration. There evidence cannot be discarded only because they are police witnesses. What is necessary is their evidence is to be scrutinised with caution and care.9. In the case of State of Punjab v. Balveer Singh, AIR 1994 SC page 1872 , it has been observed that evidence of police witness cannot be discarded only for the reason that they being police witness, their evidence cannot be considered trustworthy. In the case of Hajary v. State of Rajasthan, AIR 1980 page 803 and Hardev Gurjar v. State of Rajasthan, 1989 Cr.L.R. Page 582 , this Court has also had an occasion to consider the evidenciary value of police witness and it has been held in the above authorities that evidence of Police official cannot be discarded only for the reason that they happens to be police witnesses. The argument of the learned counsel for the appellants requires to be rejected.10. The argument of the learned counsel for the appellants requires to be rejected.10. In view of above discussion the answer to point framed is that in the instant case, in view of Ex.P2 and in view of statement of witnesses namely PW-1 Durga Shanker, PW-2 Ratan Singh, PW-3 Ghanshyam, PW-6 Latoor Lal and also PW-12 Jagdish Prasad, it appears that efforts were made to arrange the independent witnesses, but they could not be arranged and in the absence of independent witnesses, the case of the prosecution is not liable to be thrown out.Point No. 2.11. It has been contended by the learned counsel for the accused-appellants that in the instant case compliance of mandatory provisions of Sections 42 and 57 of the N.D.P.S. Act was not made. It has also been contended that in the absence of compliance of the mandatory provisions, the accused-appellants cannot be held guilty and they cannot be convicted and the judgment of conviction and order of sentence is, therefore, liable to be set aside.12. On the other hand, the learned Public Prosecutor has contended that in the instant case, it was not necessary to comply with the provisions of Sections 42 and 57 of the N.D.P.S. Act but even if for sake of argument, it is presumed that compliance of Sections 42 and 57 of the Act was entitled, then that compliance has been made.13. I have carefully considered the submissions made before me.It is necessary to see as to what law has developed in relation to compliance of Sections 42 and 57 of the Act.14. In the case of State, NCT of Delhi v. Malvinder Singh, 2007 Cr.L.R. (SC) 504 Sub-Inspector of Special Staff, North District, Delhi while he was on patrolling duty along with other police persons was informed by an informer near a Petrol Pump, which was within the bounds of Police Station, Timarpur that accused Malvinder Singh was in possession of opium. Consequently, a raiding party was organised and accused while driving the scooter was spotted by the members of the raiding party and was stopped. The accused was informed about the information that he had in his possession contraband material and option was given to him for search. Consequently, a raiding party was organised and accused while driving the scooter was spotted by the members of the raiding party and was stopped. The accused was informed about the information that he had in his possession contraband material and option was given to him for search. The S.H.O. of the Police Station Shri Ramesh Chand Saini and Shri H.M. Meena A.C.F. were informed and requested to come at the spot and when they came, in their presence search was conducted and opium was recovered. Charge-sheet was filed in the case. After trial, conviction was recorded against the accused under the provisions of the N.D.P.S. Act . On appeal before the High Court, judgment of the trial Court was set aside holding that in the absence of compliance of Section 42 of the N.D.P.S. Act, conviction was not maintainable and acquitted the accused. The matter came up before the Hon'ble Apex Court. A argument was raised that the police officer while on patrolling duty received information and had organised the raid party and the A.C.P. was also informed. Therefore, Section 42 of the Act was having no application in the case and in fact the case was not only covered by Section 43 of the N.D.P.S. Act but also covered by Section 41 of the N.D.P.S. Act. The Hon'ble Apex Court considering observations made in the case of T. Thomson v. State of Kerala & Anr., (2002) 9 SCC 618 and State of Haryana v. Jarnail Singh & Ors., (2004) 5 SCC 188 observed that in the facts of the case provisions of Section 43 of the N.D.P.S. Act were applicable because Section 43 of the Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act- has been committed. He is also authorised to detain and search any person whom he has reason to.believe to have committed an offence punishable under the Act. Explanation to Sedinn 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. It has been further observed that Sections 42 and 43 contemplates two different situations. Explanation to Sedinn 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. It has been further observed that Sections 42 and 43 contemplates two different situations. Section 42 contemplate entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the N.D.P.S. Act for searching the vehicle between sunset and the sunrise. It has been further observed that in the facts of the case Section 42 has no application and the order of the High Court was liable to be set aside.15. In the case of Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence, 2002 Cr.L.R. (SC) 892 the Apex Court while considering Sections 42, 43, 50 and 57 of the Act, in the facts where 5940 gms. of heroin found concealed in the bottom of a suitcase alleged to be belonging to Narayanaswamy while he was attempting to transport the same from International Airport Chenai to Singapore, the accused after trial was acquitted by the trial Court holding that mandatory provisions like Section 42 and Section 50 had not been complied with. In appeal to the High Court, the decision of the trial Court was set aside and accused was convicted and sentenced. Before the Hon'ble Apex Court on appeal, argument was of absence of compliance of Sections 42 and 57 of the N.D.P.S. Act, which vitiated the trial. The Hon'ble Apex Court observed that on the basis of record and evidence led in the case, it was found that the search and seizure took place at the Airport, which is a public place. Therefore, provisions of Section 43 of the N.D.P.S. Act would be applicable.. It was also observed that seizure was made in public place. The Hon'ble Apex Court observed that on the basis of record and evidence led in the case, it was found that the search and seizure took place at the Airport, which is a public place. Therefore, provisions of Section 43 of the N.D.P.S. Act would be applicable.. It was also observed that seizure was made in public place. The question of non-compliance, if any, of the provisions of Section 42 of the N.D.P.S. Act is wholly irrelevant. It has also been observed that as per the statement of PW-3, the arrest of the accused was immediately intimated, to the superior officer. Therefore, finding no merit in the appeal, the same was dismissed.16. Union of India v. Satrohan, (2008) 8 SCC 313 - The facts were that on the basis of secret information, Inspector, Narcotic Department along with other officials raided the house of Satrohan at about 8:00 A.M. In village Dadari Jamalpur. In the search of the house, 29 bags containing poppy straw were recovered. No explanation was offered in relation to possession of poppy straw. After investigation, charge-sheet was filed. The accused denied the possession and ownership of the property. The learned trial Court convicted the accused. On appeal before the High Court, the accused was acquitted as there was noncompliance of Sections 42 and 50 of the Act. In the facts, the Hon'ble Apex Court observed that Section 41(1) empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the N.D.P.S. Act or for search, has not much relevance for the purpose of considering the contention. under Section 41(2) only a Gazetted Officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorise an officer subordinate to him to do so but that subordinate officers has to be superior in rank to a peon, a sepoy or a constable. Sub-section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorised the arrest or search under sub,section (2) of Section 41, and (iii) the officer who is so authorised under sub,section (2) of Section 41. Sub-section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorised the arrest or search under sub,section (2) of Section 41, and (iii) the officer who is so authorised under sub,section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including the, power of seizure. It has further been observed that in case of an emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorisation, in terms provided in the proviso to sub-section (1) of Section 42. It has further been observed that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42 of the Act. The Hon'ble Apext Court also considered the decisions rendered earlier in the case of State of Punjab v. Balbir Singh, (1994) 3 SCC 299 , Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 and Bechodan Abdul Rahiman v. State of Kerala, (2002) 4 SCC 229 . 17. In the case M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311 the Hon'ble Apex Court has observed that when the Gazetted Officer has himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42.18. In the case of Aamir Khan @ Naru v. Central Narcotic Bureau, 2006(1) Cr.L.R. (Raj.) 445 , in para 7 it has been observed as under:- "From the record it is clear that information received from informer at 20.30 was reduced in writing marked as Ex.P1 by the Superintendent and thereafter a team was constituted consisting of Superintendent, Vijay Singh Meena himself and 2 Inspectors namely Sanjay Kumar and Rakesh and Sub-Inspector Laxman Kataria. The team went at the spot as per information given by the informer and in presence of all, search was conducted by Laxman Kataria, PW-6. PW-1 Vijay Singh Superintendent and 2 Inspectors were also present at the time of search from the accused. The team went at the spot as per information given by the informer and in presence of all, search was conducted by Laxman Kataria, PW-6. PW-1 Vijay Singh Superintendent and 2 Inspectors were also present at the time of search from the accused. PW-1 Vijay Singh Superintendent also stated before the Court that after receipt of consent of the accused for search, he directed Shri Kataria Sub- Inspector to make search. During search 1 Kg. Heroin was recovered. As per notification dated 2.3.1988, Central Government Department of Central Narcotic Bureau authorised sub-Inspector and above officers of the Department under Section 42 of the Act. Therefore, in view of above referred notification dated 2.3.1988 it is clear that PW-6 Laxman Kataria Sub- Inspector was authorised officer under Section 42 of the Act. Apart from above, it is also clear that the Superintendent, Vijay Singh and 2 Inspectors were present at the spot and as per statement of PW-1 he gave instructions to Laxman Kataria to make search in the matter. In these circumstances, I do not find any violation of Section 42 of the Act. So far as another submissions about violation of sub-section (2) of Section 42 of the Act is concerned, I find that information Ex.P1 was recorded by PW-1 Vijay Singh, who was Superintendent and was Gazetted Officer, therefore, in view of judgment of the Hon'ble Supreme Court in G. Srinivas Gound v. State of A.P. (supra) the compliance of sub-section (2) of section 42 of the Act was not necessary. So far as Ex.P-1 and Ex.P-7 are concerned, I find that Crime No. 0/1999 has been mentioned and both the documents have been proved by the cogent evidence." 19. In the case of Kulwant Singh v. State of Rajasthan, 1998 Cr.L.J (Raj.) 745 it has been by this Court that when Circle Officer himself arrived at Police Station and verified about the information then in the above circumstances, not sending the information as per the provisions of Section 42 of Act was not necessary. In the case of Bhairu Lal, Veer Ji Kumawat v. State of Gujarat, 1992(2) E.F.R. 51 the provisions of Section 42(2) of the N.D.P.S. Act have not been considered mandatory in nature.20. In the case of Bhairu Lal, Veer Ji Kumawat v. State of Gujarat, 1992(2) E.F.R. 51 the provisions of Section 42(2) of the N.D.P.S. Act have not been considered mandatory in nature.20. After carefully examining the legal position in relation to Sections 41, 42 and 57 of the N.D.P.S. Act, it appears that PW-7 Jai Prakash in his statement has stated that on 18.9.2001 at 1:40 A.M. C.I. Gave him a sealed envelope, which was to be delivered to S.P. In the SP, Office. He took the sealed envelope and delivered the same accordingly to SP Sahab and SP Sahab also gave an envelope, which was delivered by him on his return to Bhawani Mandi to C.1. PW-12 Jagdish Prasad Yadav was S.H.O. of Police Station, Bhawani Mandl on 18.9.2001 has stated that he received a secret information in the night at about 1:30 that accused Jankilal is indulged in the business of illegal drugs and was also manufacturing illegal drug at his house along with his son and other associates. This information was noted down in Ex.P24. Entry has also been made at S.No. 904 in the Rojnamcha. He has also stated that Dy.S.P., Bhawani Mandi was also informed on telephone and this fact was also entered in Rojnamcha. He has also stated that information was sent through special messenger and in this regard has proved Ex.P25, which contains the signatures of SP in relation to receipt of the information. He has also proved other documents in relation to Dy.S.P.'s arrival at Police Station and on his arrival at Police Station, entry was made in Ex.P28 in Rojnamcha. He has also stated that through Constable Jai Prakash secret information was sent and entry in Ex.P26 in the Rojnamcha was made. He has proved in this regard the entries made in the Rojnamcha. He has also stated that on the arrival of Dy.s.P., matter was discussed and in that regard entry was made in Ex.P20. Nothing has been extracted in the cross-examination so as to disbelieve his testimony. The other witnesses PW-2 Ratan Singh, PW-6 Latoor Lal and PW-9 Kalu Ram Rawat have also stated about receiving of the secret information by PW-12 and also sending of the information to SP, Jhalawar. Thus, it appears that firstly in this case since search, seizure, arrest etc. Nothing has been extracted in the cross-examination so as to disbelieve his testimony. The other witnesses PW-2 Ratan Singh, PW-6 Latoor Lal and PW-9 Kalu Ram Rawat have also stated about receiving of the secret information by PW-12 and also sending of the information to SP, Jhalawar. Thus, it appears that firstly in this case since search, seizure, arrest etc. was made at spot in presence of higher officers, therefore, compliance of the provisions of Section 42 was not necessary. Even if the compliance is considered for the argment sake necessary then sufficient compliance of Section 42 of the N.D.P.S. Act has been made.21. Above witnesses have also stated and particularly PW-12 Jagdish Prasad has stated that a detail information Ex.P12 was sent to SP, Jhalawar. Ex.P2 on perusal indicates that SP, Jhalawar in his hand writing has made a note in relation to receiving of the copy on 19.9.2001 at 5:15 P.M. Thus, the argument of the learned counsel that in the instant case compliance of Section 57 has not been made is also not tenable.22. In view of the evidence discussed hereinabove and in view of the evidence led in this case, simply making suggestion in the cross-examination to the witness in relation to preparation of the memos at Police Station, in my view, is not sufficient to discard the prosecution evidence. In view of above discussion, answer to Point No. 2 is that in the instant case the necessary compliance has been made though it was not essential.Point No. 323. It has been contended by the learned counsel that in the last line of seizure memo it has not been written in detail as to what was the procedure for preparing the memos was adopted at the time the contraband material was sealed. It is contended that in the statement of witnesses it has come that the memos were prepared simultaneously when the contraband material was seized. It has also been contended that no seizure was made at the spot. The articles were not seized at the spot.24. On the other hand, learned Public Prosecutor has contended that the witnesses before the Court have proved that the accused were found in possession of the contraband material, samples were taken at the spot, seal was affixed and the memo of seal impression was also prepared at the spot. The articles were not seized at the spot.24. On the other hand, learned Public Prosecutor has contended that the witnesses before the Court have proved that the accused were found in possession of the contraband material, samples were taken at the spot, seal was affixed and the memo of seal impression was also prepared at the spot. It is contended that when packets marked 'A-1' to 'E-1' were deposited in the malkhana then the same were resealed with the seal of the Police Station, Bhawani Mandi, Jhalawar. According to the learned Public Prosecutor, the packets were handed over to PW-5 Tej Bahadur in sealed condition and the same were deposited in the FSL by him and receipt in this regard was also handed over in the Police Station.25. I have considered the above submissions.26. It is to be seen that PW-9 Kaluram Rawat who was the Circle Officer in Bhawani Mandi at the relevant time has stated that the memos in relation to proceedings took place at the spot were prepared at that time and were signed by Ratan Singh, Jagdish Yadav, Pranveer Singh, Mohan Lai and others. The samples of the contraband material were collected in five packets. Those packets were marked as 'A-1' to 'E-1'. He has also stated that the memo Ex.P-5 in relation to specimen impression of the seal which was used at the spot was prepared. He has also stated that the seal which was used was of his name, was his personal seal and on the slips pasted on the packets he also signed and accused also put his signature. FSL report Ex.P-35 on perusal reveals that five packets marked 'A-1' to 'E-1' were received on 22.9.2001 in the FSL and were brought by Tej Bahadur constable No. 869. It is also mentioned in the FSL report that the packets were properly sealed bearing impression which tallied with the specimen seal impression forwarded. The seals were found intact.27. PW-5 Tej Bahadur has stated that on 21.9.2001 he received 5 sealed packets marked 'A-1' to 'E-1' from malkhana incharge Shahjad Mohd. He has proved the entry made in the malkhana register Ex.P-13. He has also stated that after obtaining necessary papers and after making entry in the malkhana register he left the Police Station along with the relevant papers. He has proved forwarding letter Ex.P-15 and Ex.P-16. Ex.P-16 was obtained from the S.P. Office. He has proved the entry made in the malkhana register Ex.P-13. He has also stated that after obtaining necessary papers and after making entry in the malkhana register he left the Police Station along with the relevant papers. He has proved forwarding letter Ex.P-15 and Ex.P-16. Ex.P-16 was obtained from the S.P. Office. He has stated that after depositing the packets in sealed condition in the FSL, he obtained a receipt Ex.P-17 which on return handed over in the Police Station. The only question put to the witness is that at what time he started from the Police Station and at what time he obtained forwarding letter from the S.P. Office and what was written on the receipt.28. PW-10 is Shahjad Mohd. He has -stated that on 18.9.2001 he was malkhana incharge of Police Station Bhawani Mandi and on that day the S.H.O. of the Police Station at 9.00 a.m. gave him sealed pakcets for keeping the same in malkhana. In all 5 packets were given. After receiving 5 sealed packets which were under a seal impression of KRR/RPS', the packets were re-sealed by the seal of the Police Station and on 21.9.2001. PW-5 Tej Bahadur, constable was handed over the sealed packets to deposit the same in the FSL, Jaipur who after depositing the same in the FSL handed over the receipt to him. He has stated that the entries in malkhana register Ex.P-13 were made. In the cross-examination nothing material has been extracted.29. In view of the above evidence brought on record along with the statement of the members of raiding party on perusal reveal that the contraband article recovered from the house of accused Jankilal was seized at the spot; samples were taken and the seal used was of Kaluram Meena Dy.S.P. A memo containing specimen impression of the seal vide memo Ex.P-5 was prepared. After completion of necessary investigation at spot, the seized material was deposited in malkhana of the Police Station and this fact has been proved by PW-10 Shahjad Mohd. The sealed packets were handed over to PW-5 Tej Bahadur on 21.9.2001 to deposit the same in the FSL, Jaipur along with forwarding letter and other relevant papers. Entry Ex.P-13 in this regard was made in the rojnamcha register and the samples thereafter in sealed condition were deposited in the FSL and Ex.P-17 receipt was obtained which was handed over in the Police Station.30. Entry Ex.P-13 in this regard was made in the rojnamcha register and the samples thereafter in sealed condition were deposited in the FSL and Ex.P-17 receipt was obtained which was handed over in the Police Station.30. The argument of the learned counsel that in the instant case the memos were prepared at the Police Station and in fact no seizure was made at the spot is not liable to be accepted.31. It has also been contended that since the memos find case number, therefore, it is to be presumed that the memos were prepared at the Police Station. The argument of the learned is liable to be rejected out-rightly because as discussed above the memos were prepared at the spot and thereafter case number was subsequently written on them in red ink as per the practice prevailing in Rajasthan. Only on the basis that since case number was written on memos in red ink then it is to be presumed that false memos were prepared or the same were prepared at the Police Station, in my opinion, is not the proper appreciation of evidence unless it is shown either by cross-examination conducted from the witnesses or by the material available on record' that false and fabricated memos were prepared in the case after reaching at the Police Station.32. In view of above discussion, answer to point No. 3 is that compliance of Section 53 of the N.D.P.S. Act was made as per law and relevant memos were prepared at spot.Point No. 4:33. It is contended that the house from where alleged recovery was made was not in exclusive possession of the accused-appellants and further the prosecution has not been able to prove that the house was in exclusive possession of accused Jankilal because in the house several other persons including mother, wife, daughters and sons of Jankilal were residing. It is further contended that as per the evidence of the prosecution witnesses unless the ownership of the house is proved, the accused cannot be held guilty in this case because possession of the contraband material recovered from the house of the accused is a relevant aspect of the case. It is further contended that as per the evidence of the prosecution witnesses unless the ownership of the house is proved, the accused cannot be held guilty in this case because possession of the contraband material recovered from the house of the accused is a relevant aspect of the case. It has also been contended that even the witness of the prosecution PW-11 Bhagwat Singh has declined about the certificate in relation to the house ever given by him in relation to the house in question from where alleged recovery was made.34. On the other hand, learned Public Prosecutor contends that as per the provisions of Sections 35 and 54 of the N.D.P.S. Act, there is a presumption of culpable mental state of the accused in a case when recovery is made from the house, conveyance etc. and in the instant case from the facts of the case and the recovery made from the room of the house of the accused Jankilal, it is apparent that narcotic drugs were being prepared, smack was found, gas stoves were in burning condition, in steel drums and plastic drums opium liquid was found. It is also submitted that for manufacturing opium/drugs, the necessary equipments and ammonium chloride and aluminum Hydroxide was there, therefore, only on the argument that the house was belonging to many persons or it was not the house of the accused, it cannot be said that the accused were not indulged at the time when they were manufacturing the opium/drugs and were not in the possession of contraband material.35. To appreciate the submissions made before me, it shall be proper to refer to Sections 35 and 54 of the N.D.P.S. Act. Section 35 of the N.D.P.S. Act states that 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. In the explanation attached to this section culpable mental state has been stated to be one which includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.Section 54 of the N.D.P.S. Act reads thus: 54. In the explanation attached to this section culpable mental state has been stated to be one which includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.Section 54 of the N.D.P.S. Act reads thus: 54. Presumption from possession of illicit articles.--In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. 36. A perusal of the above provisions of the N.D.P.S. Act without any manner of doubt indicates that if a person is found having possession of the contraband material or having control over them or the facts are such which indicate the circumstances to presume the possession of the accused then a presumption is liable to be raised against the accused in relation to his mental state and also presumption of possession in relation to illicit articles recovered either from the person of the accused or from the place.37. It is difficult to define the word 'possession' in one word or to give a complete definition of possession. It is always possible that a person may not be owner of the property but a person may be in possession of the property. In Salrnond on Jurisprudence, 12th edition by P.J. Fitzgerald, it has been stated in Chapter 9 that possession is not purely a legal concept. Possession differs from ownership. In that the former is of temporary duration whereas the latter is of a more permanent, ultimate and residuary nature. But possession differs from ownership in another quite different respect. In Salrnond on Jurisprudence, 12th edition by P.J. Fitzgerald, it has been stated in Chapter 9 that possession is not purely a legal concept. Possession differs from ownership. In that the former is of temporary duration whereas the latter is of a more permanent, ultimate and residuary nature. But possession differs from ownership in another quite different respect. Ownership, consists of a combination of legal rights, some or all of which may be present in any particular instance; and such rights imply the existence of legal rules and a system of law. With possession this is not so. A possessor is not so much one who has certain rights as one who actually has possession. Whether a peron has ownership depends on rules of law; whether he has possession is a question that could be answered as a matter of fact and without reference to law at all.38. The word 'possession' has been defined differently in different dictionaries.39. In business dictionary, the word 'possession' means, 'Having, holding, or detaining property in one's control. When compared with mere Custody, possession involves custody plus the assertion of a right to exercise dominion'.40. In real estate dictionary, the word 'possession' means, 'The holding, control or custody of property for one's use, either as owner or person with another right.41. The West's Encyclopedia of American Law defines the word 'possession', the ownership, control or occupancy of a thing, most frequently land or personal property, by a person.Possession v. Ownership42. Although the two terms are often confused, possession is not the same as ownership. No legal rule states that "possession is nine-tenths of the law," but this phrase is often used to suggest that someone who possesses an object is most likely its owner. Likewise, people often speak of the things they own, such as clothes and dishes, as their possessions. However, the owner of an object may not always possess the object. For example, an owner of a car could lend it to someone else to drive. That driver would then possess the car. However, the owner does not give up ownership simply by lending the car to someone else.43. To avoid confusion over exactly what is meant by possession, the word is frequently modified by adding a term describing the type of possession. That driver would then possess the car. However, the owner does not give up ownership simply by lending the car to someone else.43. To avoid confusion over exactly what is meant by possession, the word is frequently modified by adding a term describing the type of possession. For example, possession may be actual, adverse, conscious, constructive, exclusive, illegal, joint, legal, physical, sole, superficial, or any one of several other types. Many times these modifiers are combined, as in "joint constructive possession." All these different kinds of possession, however, originate from what the law calls 'actual possession'.44. The words 'criminal possession as defined by West's Encyclopedia of American Law are: Both Federal and State statutes make possession of many dangerous or undesirable items criminal. For example, the federal statute 26 U.S.C.A. $ 5861 (1996) prohibits possession of certain firearms and other weapons. Likewise, the possession of other items considered harmful to the public, such as narcotics, burglary tools, and stolen property, is also made criminal under various laws. Criminal possession, especially of drugs, has been a major source of controversy. Making possession a crime allows for arrests and convictions without proving the use or sale of a prohibited item.45. Historically, actual possession was required for a criminal possession conviction. Beginning in the 1920s, however, Courts began expanding criminal possession to include constructive possession. The federal prohibition of intoxicating liquors spawned several cases involving criminal possession. In one of the first criminal cases to use constructive possession, the Court found a defendant guilty of possessing illegal liquor in trunks in the actual possession of another person ( People v. Vander Heide, 211 Mich.1 : 178 N.W. 78 (1920) ). Subsequent cases, especially narcotics cases, have continued to expand the law of criminal possession.46. Keeping in mind the provisions of Sections 35 and 54 of the N.D.P.S. Act and also the different meanings given to the word 'possession' in different dictionaries, in Salmond on Jurisprudence and also taking into consideration the facts of the present case, it appears that from receiving the secret information, the police party reached at the place regarding which the secret information was received. The house of the accused was surrounded and thereafter the accused persons were found in the house. At that time, the material found in the room was being used for the manufacturing of opium/heroin. The house of the accused was surrounded and thereafter the accused persons were found in the house. At that time, the material found in the room was being used for the manufacturing of opium/heroin. In the room other equipments which were necessary for manufacturing the drugs were also found. It was in the midnight and except the accused persons there was none in the room and the accused persons were involved in the process of manufacturing opium/heroin etc. The evidence in this regard has already been discussed. The members of the police party, particularly, PW-9 Kaluram Rawat, PW-12 Jagdish Prasad Yadav, PW-1 Durga Shanker, PW-2 Ratan Singh, PW-3 Ghanshyam and PW-6 Latoorlal have stated in their statement about the entire facts, as to in what manner the accused were apprehended and the contraband material was recovered which was seized and sealed.47. In the above back-ground, the argument of the learned counsel for the appellant needs examination.48. In this case, the important aspect is not the ownership of the house. The important aspect of the case is, as to whether at a particular place which may or may not be belonging to a particular person but as to whether the accused were having conscious 'possession of the contraband material and they were actually involved in the process of manufacturing the contraband material. If the answer is in affirmative, then, in my opinion, the question of ownership will be of no significance. It further appears that from the room except the material which was used for manufacturing the contraband material, nothing was found. It was now in the above circumstances for the accused persons to have explained their presence in the room as to what they were doing in the room when they were apprehended by the police, particularly, in the circumstances stated hereinabove to the effect that the contraband material was being manufactured. Only on the plea that the house was belonging to many persons and the house was not in actual possession of one accused, then on this count whether the accused are required to be left. As regards possession, the accepted meaning of the word includes physical or the holding control or custody of the property for one's use either as owner or person with another rights. It may or may not be with the ownership. As regards possession, the accepted meaning of the word includes physical or the holding control or custody of the property for one's use either as owner or person with another rights. It may or may not be with the ownership. Particularly, in the cases where the law has made possession of a particular thing punishable under the law and to raise presumption on a finding in possession of a prohibited material then in that event possession may even be temporary is sufficient to presume that there has been contravention of law by the person who is or was found in the possession of the prohibited material etc. Unless it is shown by preponderance of probabilities or otherwise that presumption is not required to be raised as the possession of the accused has been satisfactorily explained till then in my opinion accused in such cases cannot escape the liability in view of Sections 35 and 54 of the N.D.P.S. Act. It is correct that it is the initial burden of the prosecution to prove its case beyond reasonable doubt but in the cases when the law specifically provides to raise presumption in certain circumstances in relation to the mental state of accused persons when found in possession of contraband material then the accused is always entitled to rebut that presumption.49. In the instant case, the findings recorded by the trial Court reveal that the accused were found manufacturing contraband material then it can easily be concluded that they had possession/control over the contraband material which was seized and sealed at the spot. It is correct that in relation to house PW-11 Bhagwat Singh has stated that though on 25.9.2001 he was Sarpanch of Gram Panchayat, Alava and Ex.P-19 certificate bears his signature but he did not make any inquiry in relation to the certificate given. The witness has been declared hostile. He has not denied the signature on the certificate. Be that as it may, as has been discussed here-in-above, in the instant case it has been found that the accused were in possession of the contraband material in a house and they were having control over the contraband material, therefore, ownership of the house is not of much significance. The contraband material was recovered from the house and this fact has been established by the evidence and before taking search of the house consent was obtained from accused Jankilal. The contraband material was recovered from the house and this fact has been established by the evidence and before taking search of the house consent was obtained from accused Jankilal. That fact is established by the letter of consent Ex.P-3.50. In view of the fore-going discussion, answer to the point No. 4 is that the contraband material recovered in the present case was in possession of the accused persons.Point No. 5:51. In view of the findings recorded on points No. 1 to 4, the answer to point No. 5 is that the trial Court has rightly convicted and sentenced the accused. The judgment of conviction and order of sentence passed by the learned trial Court dated 19.12.2002 requires to be maintained.In the result, the appeal stands dismissed. Appeal dismissed. *******