JUDGMENT Harbans Lal, J.:- This appeal is directed against the judgment/order of sentence dated 22.1.2007 passed by the court of learned Judge Special Court, Jalandhar whereby he convicted and sentenced the accused Sodhi Ram, Chhinda, Balkar, Deepa and Kura Ram to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1.00 lac each under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act) and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for 2½ years. 2. The factual score records that on 2.12.2001 Sub Inspector Tarsem Singh amongst other police officials happened to be present at bus stand Samrai in connection with the checking of suspects. Around 4 A.M. ASI Harbhajan Singh alongwith other police officials came there. They were also associated with the police party. The Sub Inspector received secret information that the accused Balkar Singh, Chhinda and Deepa had kept poppy husk on the backside of the Focal point Sarhali and were waiting for the customers near the place of Baba Sidha and that Soma, Sodhi and Kura Ram accused have purchased poppy husk, which they had placed in bags on their scooters and if raid is conducted they can be apprehended with poppy husk bags. This information was embodied into ruqa, which was sent to the Police Station where on its basis formal F.I.R. was recorded. The D.S.P. Phillaur and S.H.O. Nurmahal were asked to reach at spot. Meanwhile Joga Singh was joined in the police party. Thereafter, the raid was conducted. Three scooters duly parked alongwith six persons were found at the spot. All those six persons absconded from the spot. Head Constable Jasbir Singh identified accused Balkar and Kura, whereas C-II Varinder identified accused Sodhi and Chhinda. Constable Sarabjit Singh identified accused Deepa and Soma(now deceased) at the spot. Each scooter was carrying one bag of poppy husk. Two scooters were bearing registration No. PB-37-A-7421 and PB-08-AD-1290, whereas the third one was found unnumbered. Besides this, four bags containing poppy husk were found lying near these scooters. In the meanwhile, DSP Satinder Singh came at the spot and all these seven bags were produced before him. A sample of 250 grams was drawn from each bag and converted into parcel. The residue of each bag when weighed came to 34.750 kgs which was also made into parcels. In the meanwhile, DSP Satinder Singh came at the spot and all these seven bags were produced before him. A sample of 250 grams was drawn from each bag and converted into parcel. The residue of each bag when weighed came to 34.750 kgs which was also made into parcels. The case property including sample parcels were sealed with seals SS and TS and seized vide recovery memo alongwith the scooters. Later on, the accused were put under arrest. After completion of investigation, the charge-sheet was laid in the court for their trial. 3. The accused were charged under Section 15 of the Act to which they did not plead guilty and claimed trial. In order to bring home guilt against the accused, the prosecution examined Balbir Singh Senior Assistant PW-1, HC Mahavir Singh PW-2, Sub Inspector Tarsem Singh PW-3, Dy.S.P. Satinder Singh PW-4, Constable Kuldip Singh PW-5, Head Constable Varinder Mohan PW-6, C-1 Sarabjit Singh PW-7, Assistant Sub Inspector Harbhajan Singh PW-8, Hans Raj Motor Taxation Clerk PW-9 and closed its evidence. During the pendency of the case, accused Soma alias Som Nath breathed his last. 4. When examined under Section 313 of Cr.P.C., all the accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication. They came up with the plea that police has planted the recoveries upon them on account of ulterior motives and at the instance of interested persons. They did not adduce any evidence in their defence. 5. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, they have preferred this appeal. 6. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 7. Mr. B.S.Kathuria, Advocate, on behalf of the appellants strenuously urged that the learned trial Court did not take into consideration the important aspect of the case that the appellants were neither identified nor their test identification parade was got arranged and that being so by no stretch of speculation, it can be said with absolute certitude that the escapers were the appellants. To controvert this submission, the learned counsel pressed into service that the appellants were identified by the police officials while fleeing from the spot and thus, their identity has been adequately established. This contention merits rejection for the discussion to follow hereunder:- It is in the evidence of Varinder Mohan HC PW-6 that “ All the six persons absconded from the place of recovery. Jasbir Singh HC identified the accused Balkar Singh and Kura, present in court, whereas I identified accused Sodhi and Chhinda and accused Deepa and Soma were identified by Sarabjit Singh. All the accused are present in court. I remained posted for more than ten years at P.S.Nurmahal. Sodhi is an accused in NDPS case and mother of Chhinda namely Krishna is also an accused in NDPS case and is resident of Langroya, P.S. Nawanshahr. So, they had been coming to police station and as such, I knew them previously.” As per this evidence, the aforesaid accused were known to this witness previously. It is in his cross-examination that “I have no relationship with all the accused. I have no connection or business dealings with them. I never appeared as a witness against the accused previously. I never gave any information against the accused previously to my seniors that the accused are habitual offenders in narcotic dealings.(I have been raiding the houses of accused alongwith police party previously volunteered). I never joined the accused in any carnival or any marriage etc. I have not given the description of the accused in my statement (volunteered since I knew the accused previously so I did not give the features of accused).In my presence, no statement of Sarpanch or Lambardar of village was recorded to the effect that these accused had ran away from the spot.” If this witness had been formerly known to these accused and had been confident that they are the same persons, he by all probabilities would have got recorded their physical description in the F.I.R. There being no such evidence, it would be going too far to say that he had identified the appellants. As surfaces in his cross-examination that “ I had identified both persons in the presence of S.I. Tarsem Singh and ASI Harbhajan Singh who were knowing those persons mentioned in the ruqa. xx xx xx No person could be arrested on the spot. As surfaces in his cross-examination that “ I had identified both persons in the presence of S.I. Tarsem Singh and ASI Harbhajan Singh who were knowing those persons mentioned in the ruqa. xx xx xx No person could be arrested on the spot. I do not remember when the accused were arrested. I did not join any day(body) in investigation of the case after the recovery nor I got arrested any of the accused whom I had identified.” In the face of this evidence, only this witness could have identified the accused at the time of their arrest. The said accused having been arrested in his absence, leaves in the womb of mystery as to who had identified them to be the escapers at the stated moment. It is in the evidence of Sarabjit Singh C-1 PW-7 that “Accused Deepa son of Darshan and Soma @ Poma son of Darshan resident of Lakhanpal were identified by me. They were present in court. They are the same persons who fled away from the spot.” He has testified in his crossexamination that “ I have no relations with Deepa and Soma ( I know them because of my posting there volunteered). I never appeared as a witness against them earlier. Sixteen villages are in the jurisdiction of P.P. Jandiala. I do not know any F.I.R. number against the accused, whether they are previous offenders are not.” If this witness had no relations with the appellants Deepa and Soma and had also not appeared as witness against them earlier, by no stretch of imagination, it can be said that he could have identified them at the spot. According to the prosecution story, the accused Balkar and Kura Ram were identified by Jasbir Singh HC who having not been examined, it is very difficult to say on the basis of her mere statement recorded under Section 161 of Cr.P.C. that he was known to these appellants prior to the alleged recovery. It is in the cross-examination of Tarsem Singh Inspector Investigator PW-3 that “it is correct that there was no accused on the spot when DSP reached, nor he has seen any accused. SHO reached the spot at 7.30 A.M. after the D.S.P. reached there. It is in the cross-examination of Tarsem Singh Inspector Investigator PW-3 that “it is correct that there was no accused on the spot when DSP reached, nor he has seen any accused. SHO reached the spot at 7.30 A.M. after the D.S.P. reached there. xx xx xx As per police file none of the accused except Sodhi Ram was arrested in the instant case.”If it was so, it is beyond comprehension as to how the other appellants except Sodhi Ram were shown as having been arrested in the report under Section 173 of Cr.P.C. If it is assumed for a little while that the said witnesses had the opportunity to see the accused while fleeing from the spot, then in no circumstance they would have noted their identifying features. By looking a person from behind but without seeing his/her face closely, it is very difficult to say that the person who had escaped from the spot is the same person who was being claimed as such. In Heera and Another Vs. State of Rajasthan 2007(3) Recent Criminal Reports(Criminal) 517, the Supreme Court while discussing the evidentiary value of the test identification parade under 9 of the Evidence Act has held as under:- “The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. Identification test do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. It is desirable that a test identification parades should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witness prior to the test identification parade. Substantive evidence is the evidence of identification in Court. Evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. Substantive evidence is the evidence of identification in Court. Evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. The test identification parads belong to the stage of investigation and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration. Absence of test identification parade is not fatal in all cases. Accused can be convicted on basis of identification in court corroborated by other circumstantial evidence. Much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeing glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. Evidence of identification become stronger if the witness has an opportunity of seeing the accused nor for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.” 8. Adverting to the instant one, as proffered by the prosecution, the recovery took place on 2.12.2001 at about 4.00 a.m. It is a matter of common knowledge or is widely known that in the month of December, the winter is at its peak. As per Almanac on the said date, the sun was to rise at 7.07 a.m. It is not the prosecution case that the place of recovery was largely rit or the police officials had some lighting system with them. Thus, at the material time, it would have been too dark to identify a person. So, it was not possible to identify the appellants. Thus, at the material time, it would have been too dark to identify a person. So, it was not possible to identify the appellants. In view of the afore observations extracted from Heera and Another’s case (supra) the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused for some length of time in a broad day light when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes. In the case at hand there being pitch dark at the spot, the aforesaid witnesses actually would not have been able to note down the features of the accused more carefully. In view of the shaky evidence adduced by the prosecution in relation to the identification of the appellants, it would not be free from risk to maintain the conviction. 9. As deposed to by the Investigator, one scooter bore registration No. PB 37-A 7421 and the other had registration No. PB-08-AD-1290 though the third one was without number. Balbir Singh Senior Assistant, S.D.M. Office, Nakodar PW-1 while deposing from the official record has stated that Scooter No. PB-08-AB-1290 which was originally registered in the name of Varinder Singh son of Charanjit r/o Chak Kalan, Tehsil Nakodar was later on transferred in the name of Sukhdev Singh s/o Darshan Singh r/o Village Sarih, Tehsil Nakodar vide entry No.319 dated 22.6.2001. He has no where stated that either appellant was owner of this scooter. With regards to the ownership of the rest of the scooters, no evidence has been adduced. Obviously the prosecution has failed to connect the scooters with any of the appellants. Who was the owner of the place of the recovery, has also not been proved by the prosecution. 10. There is no gainsaying the fact that Sub Inspector Tarsem Singh PW-3 was not the S.H.O. of the concerned Police Station on the day of the recovery. He went on to say in his cross-examination that “It is correct that I have deposited the case property with the MHC in this case vide entry No. 506 dated 2.12.01 in register No.19. He went on to say in his cross-examination that “It is correct that I have deposited the case property with the MHC in this case vide entry No. 506 dated 2.12.01 in register No.19. It is correct that scooter No. PB-08-AD-1290, Scooter No. PB-37-A-7421 and another scooter without number have been mentioned but their owner’s name have not been mentioned therein.” To gloss over compliance of the provisions enshrined in Section 55 of the Act, the prosecution has come up with the plea that SHO Kashmir Singh had arrived at the spot and the case property alongwith the accused was produced before him in adherence to this provision of law. To the utter consternation of the prosecution, S.I. Tarsem Singh PW-3 has merely stated that “ the S.H.O. Kashmir Singh also arrived at the spot. I told him about the investigation. On return to the Police Station I deposited the case property and the vehicles alongwith samples with MHC Mahavir Singh.” Ostensibly, he has no where stated that the case property alongwith the accused was produced by him before the said S.H.O. He is also silent on the fact that the said S.H.O. after verification had affixed his own seal on the case property. To add further to it, Kashmir Singh SHO has also not been examined by the prosecution. Though this provision is directory and not mandatory in nature but non-adherence therewith inter-alia assumes greater importance. 11. As per the Chemical Examiner’s Report Ex.PG, the sample parcels were received in his office on 26.12.2001 though the recovery was effected on 2.12.2001. Axiomatically, there is inexplicate delay of as many as 24 days in sending the sample parcels for chemical analysis. As per the evidence tendered by Kuldip Singh Constable PW-5 who allegedly carried the sample parcels to the office of the Chemical Examiner’s office on 26.12.2001 Mahabir Singh MHC had handed over seven parcels of poppy husk to me. Under the stress of cross-examination, he has stated that “it is correct that in my statement Ex.DA it is mentioned at mark A that MHC handed over to me samples on 26.5.01. I went to Laboratory on 26.5.01. Palpably, this witness has put the cart before the horse for the reason that before effecting the recovery, how the sample parcels could have been dispatched on 26.5.2001. Thus, there appears to be a dent in the prosecution case. I went to Laboratory on 26.5.01. Palpably, this witness has put the cart before the horse for the reason that before effecting the recovery, how the sample parcels could have been dispatched on 26.5.2001. Thus, there appears to be a dent in the prosecution case. As stated by Tarsem Singh S.I.(sic) Form No.M-29 was prepared at the spot, whereas according to Harbhajan Singh ASI PW-8 Form No. M-29 was not prepared at the spot. Obviously, both these witnesses are discrepant and contradict each other on a very material point. 12. In Kashmir Singh Vs. State of Punjab [2006(3) LAW HERALD (P&H) (FB) 2391] : 2006(2) Recent Criminal Reports(Criminal) 477, the Full Bench of this Court has observed as under:- “12. When the Trial Judge records the statement of an accused person under Section 313 Cr.P.C. with regard to the circumstances which have appeared in evidence against him, the learned judge gives the accused an opportunity to explain those circumstances. The accused generally denies the prosecution case against him, but it is an opportune moment for him to plead any type of defence that he may like to take. Therefore, by extending the provisions of Section 313 Cr.P.C. and on first principles of fair trials as well, there is need to give every accused person an opportunity to explain the case against him. Wheresoever the presumption under Sections 35 & 54 is to be raised, it would be advisable for the Trial Court to frame a question under S. 313 Cr.P.C. in order to give the accused a fair opportunity to rebut the presumption, but it is strange that Trial Court do not give the accused this opportunity. Unless the accused have been given the opportunity to prove that he had no such mental state as presumed under S.35 or that he had satisfactorily accounted for the possession which was being presumed against him under Section 54, the respective presumptions cannot be raised against the accused. 19. For the above reasons, we would answer the question raised by stating that no presumption under Section 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement under Section 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter, the accused should be given an opportunity to lead to the presumptions. Thereafter, the accused should be given an opportunity to lead to the presumptions. Thereafter the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of “possession” which needs to be resolved.” 13. In State of Punjab Vs. Hari Singh and Others 2009(2) Recent Criminal Reports (Criminal) 143 it has been observed by the Apex Court as under:- “19. For the above reasons, we would answer the question raised by stating that no presumption under Sections 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement under Section 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of “possession” which needs to be resolved.” 14. In view of the afore-quoted law, it was obligatory upon the learned trial Court to have framed a specific question with regards to conscious possession and put the same to the appellant, while he was being examined under Section 313 of Cr.P.C. To the utter dismay of the prosecution, a glance through statutory statement of the appellant would reveal that it has no where been put to them that they were in conscious possession of the recovered poppy husk bags. In this way, their conscious possession is not established. Sequelly, the presumption arising under Section 35 or 54 of the Act does not operate in favour of the prosecution. 15. No other material point has been agitated or raised by either counsel. For the reasons indicated above, this appeal succeeds and is accepted by setting aside impugned judgment/order of sentence. The accused-appellants are hereby acquitted of the charged offence by giving them benefit of reasonable doubt. Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of. --------------------