JUDGMENT A.N. Jindal, J.: - Ajay Patel and Sanjay Kumar, accused-appellants (herein referred as, ‘the accused’) were prosecuted for keeping in possession 125 kgs of poppy husk at the Dhabha run by them. Consequently, they were tried, convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lac each under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein referred as, ‘the Act’). 2. On 28.10.2007, DSP Rajesh Duggal along with other police officials was present at T-point Shahpur, where he received a secret information that the accused were carrying a Dhabha under the name and style of M/s Shiv Shakti Dhabha at village Mohra by taking the same on lease and they were engaged in selling of poppy husk on the said Dhabha to the drivers. It was further informed that they had concealed the huge quantity of poppy husk in a double bed at Dhabha and if raid is conducted, then the recovery could be effected. Considering the information to be reliable, notice under Section 42 of the Act was sent to the Superintendent of Police through ASI Ramesh Kumar. However, DSP Rajesh Duggal along with other police officials after joining one Sukhdev Singh, an independent witness, raided the premises, where they found the accused sitting on the bed at Dhabha. Except them none was present. On asking, the accused told their identity as Ajay Patel and Sanjay Kumar hailing from Madhya Pradesh. They were given the option of search under Section 50 of the Act, but they stated that they had no objection if Deputy Superintendent of Police conducts the search. On search of the bed, four bags containing poppy husk were recovered. On weighment, two bags were found to be containing 40 kgs each, whereas, the third bag was containing 25 kgs and fourth bag was containing 20 kgs of poppy husk. Two samples of 100 grams each were taken out of each bag. The case property as well as the samples were converted into parcels and were sealed with the seal bearing impression “RD” by the DSP Rajesh Duggal and the seal after use was entrusted to ASI Mahinder Singh. The case property then was taken into possession vide separate memo. Initially, DSP Rajesh Duggal had conducted the investigation, but later on, it was entrusted to ASI Dharam Pal. The case property then was taken into possession vide separate memo. Initially, DSP Rajesh Duggal had conducted the investigation, but later on, it was entrusted to ASI Dharam Pal. On completion of the investigation challan was presented in the Court. 3. The accused were charged under Section 15 of the Act to which they pleaded not guilty and claimed trial. 4. The prosecution in order to substantiate the charges, examined C. Ram Chander (PW1), EHC Rulda Ram (PW2), Sukhdev Singh (PW3), Inspector Surta Ram (PW4), HC Manoj Kumar (PW5), Jaibir Singh, JMIC, Jind (PW6), ASI Dharam Pal (PW7), ASI Mahinder Singh (PW8), S.K. Sangwan (PW9) and DSP Rajesh Duggal (PW10). After tendering the report of the Chemical Examiner, the prosecution closed its evidence. 5. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. However, they did not lead any evidence in defence. 6. The trial resulted into conviction. 7. Arguments heard. Record perused. 8. Learned counsel for the appellants, while assailing the judgment of conviction, has urged that Shiv Shakti Dhabha is alleged to have been owned by Rajwinder Singh. It was Rajwinder Singh who was engaged in selling the contraband, but the accused who had been working as servants over the Dhabha were made the scape goat and Rajwinder Singh was left untouched due to his connivance with the police. The accused had come from Madhya Pradesh with a motive to earn livelihood and they never intended or were actually indulged in the sale of the contraband. It has been further urged that no evidence has been led by the prosecution in order to establish lease of Dhabha by Rajwinder Singh in favour of the accused and in the absence of any lease document much less any writing qua their tenancy, they cannot be said to be in possession of Dhabha as a tenant. Rajwinder Singh has not been examined by the prosecution much less any document has been proved in order to establish their possession as tenant over the Dhabha in question, therefore, the accused cannot be said to be in exclusive possession of the Dhabha. Rajwinder Singh has not been examined by the prosecution much less any document has been proved in order to establish their possession as tenant over the Dhabha in question, therefore, the accused cannot be said to be in exclusive possession of the Dhabha. It was further submitted that according to EHC Rulda Ram (PW2), MHC Manoj Kumar (PW5) had delivered the samples and the sample seal to him on 5.11.2007 for depositing the same with the Forensic Science Laboratory, Madhuban and the said samples and the sample seals were deposited by him on the same day. However, HC Manoj Kumar while appearing as PW-5 has stated that he sent the samples on 31.10.2007 and again on 2.11.2007 to the Forensic Science Laboratory, Madhuban for chemical examination but the same were received back. No explanation is coming forth as to what objections were raised by the Forensic Science Laboratory for not accepting the samples. It has also been submitted that S.K. Sangwan (PW9) during cross-examination admits that the samples were received on 31.10.2007, but the same had been returned as number of seals on few parcels did not tally with the numbers of seals mentioned on the paper. Though, according to Manoj Kumar (PW5) samples were taken out from the Malkhana on 31.10.2007 and on 2.11.2007 but no entries have been made in the Malkhana register showing that the samples were taken out on these dates from Malkhana. Thus, possibility of tampering of the samples cannot be ruled out. The learned counsel has further argued that the independent witness so joined has not supported the prosecution case. The accused were not found in conscious possession as the mere fact that they were sitting over the bed is hardly sufficient to establish their conscious possession. The seal was not handed over to the independent witness rather it remained in possession of the police officials till the samples were dispatched to the Forensic Science Laboratory. 9. To the contrary, Mr. The seal was not handed over to the independent witness rather it remained in possession of the police officials till the samples were dispatched to the Forensic Science Laboratory. 9. To the contrary, Mr. J.S. Rattu, Deputy Advocate General, Haryana, has supported the impugned judgment by urging that since the accused were found in possession of four bags of poppy husk which were recovered from the bed over which they were sitting, therefore, the possession of the accused would be presumed and that mere non examination of the independent witness hardly effects the prosecution case particularly when the police officers have duly corroborated each other qua the factum of recovery of the contraband, therefore, he prayed for dismissal of the appeal. 10. Having heard the rival contentions, the material question to be determined in this case is, “whether the accused were tenants and in possession of the premises, as such, of the Dhabha owned by Rajwinder Singh?” 11. No doubt, the accused hailed from Madhya Pradesh and they being migrant labourers presumably must have come to Haryana for the purpose of earning livelihood, as such, they must be working there on the Dhabha. The most essential evidence in order to prove the possession of Dhabha as tenants, was that of Rajwinder Singh, who could come forward and depose regarding their tenancy. and support the fact. Rajwinder Singh was neither cited nor examined as a witness in order to say that he had leased out the premises to the accused on rent for running Dhabha there. In the absence of examination of this material witness namely Rajwinder Singh by the prosecution it would be difficult to hold that the accused were in possession of the Dhabha as tenant. A similar view was taken by the Apex Court in Criminal Appeal No.190 of 2005, State of Punjab v. Malkiat Singh, decided on 21.4.2009, where in the similar circumstances, the Apex Court observed as under :- “We find that the High Court has noted with concern the shoddy investigation which was done. There was no reason indicated as to why Pritam Singh was not examined and why during investigation copy of the lease deed, showing the room to have been leased out to the respondent accused, was obtained from Pritam Singh, if that was there. There is no reason as to why the same was not brought on record. There was no reason indicated as to why Pritam Singh was not examined and why during investigation copy of the lease deed, showing the room to have been leased out to the respondent accused, was obtained from Pritam Singh, if that was there. There is no reason as to why the same was not brought on record. Additionally, no evidence was adduced to show the possession of the room by respondent who was admittedly not the owner of the room.” 12. In the instant case also, the investigator did not proceed to enquire about the ownership of the Dhabha and to collect the document on the basis of which the same was given to the petitioners on lease much less no lease deed has been brought on record in order to prove the possession of the accused as tenant. It is pertinent to mention here that even no question was put to the accused that they had taken the Dhabha on lease from Rajwinder Singh and they were tenant in possession as such. Even no partnership deed between two accused for running Dhabha has been brought on record. In the circumstances it could well be concluded that it was a shoddy investigation conducted by the Investigating Officer obviously for the reasons that he never wanted to bring the truthful version to the fore. The case of prosecution is that on receipt of the secret information when DSP Rajesh Duggal along with police party reached the Dhabha, he found two persons sitting over the bed and on search of the bed, four bags of poppy husk were recovered. It may further be noticed here that none of the witnesses has stated if accused had tried to run away. The site plan reveals that it was an open place having no doors and the bed was also lying at the open place. It was morning time at 10.15 a.m. on 28.10.2007 when the raid was conducted. 13. In these circumstances, the question arises, “whether the accused could be said to be in conscious possession of the contraband, and if conscious possession is proved, then out of two who was in conscious possession?” 14. It may be noticed that nothing was visible out of the bed from where the accused could know that there was contraband in the bed. It may be noticed that nothing was visible out of the bed from where the accused could know that there was contraband in the bed. Had the accused been in exclusive knowledge about the contraband in the bed, then they would have made efforts to run away on seeing the police party. No document was recovered from their possession in order to show that these were two persons who were running the Dhabha. The other improbabilities which go in their favour is that they would not have kept such a contraband in the open place if they were actually indulging in selling the same. The bed was also told to be not locked. In the absence of any evidence regarding their possession of the premises, in all probabilities they may have been servants over the Dhabha and knowing nothing about the contraband in the bed. It is also well settled by now that if premises are in possession of more than one person then it would be difficult to hold that as to who was in exclusive knowledge of the article lying in the premises. It is not known as to how the trial court presumed that the accused had the knowledge about the contraband lying in the bed. At the cost of repetition, it may further be observed that Dhabha was an open place and DSP Rajesh Duggal (PW10) admits that there are two other Dhabhas situated near by the alleged Dhabha and the premises are frequently visited by the public at large, therefore, the question of conscious possession of the accused is difficult to be answered in favour of the prosecution. 15. Again there is another infirmity which shrouds the prosecution case that the prosecution in order to prove the recovery of the contraband has examined ASI Dharam Pal (PW7) and DSP Rajesh Duggal (PW10). If we delve deep to appreciate the statement of DSP Rajesh Duggal (PW10), it runs counter to the FIR and the testimony of ASI Dharam Pal (PW7). In the FIR, it is stated no person except the accused was present at Dhabha at the time of raid, but in their statements, both ASI Dharam Pal and DSP Rajesh Duggal (PW10) have stated that number of persons were present at the Dhabha at the time of raid. Both the witnesses admit that they did not investigate regarding the ownership of Dhabha. Both the witnesses admit that they did not investigate regarding the ownership of Dhabha. However, they know that Rajwinder Singh was the owner of the Dhabha. DSP Rajesh Duggal admits that he did not record the statement of the owner. Though the independent witness namely Sukhdev Singh was examined but he has not supported the prosecution case. He while appearing in the witness box as PW-3 has stated that nothing was recovered from their possession in his presence. Though the independent witness was joined, yet, the seal was handed over to the police official and not to the independent witness. 16. The link evidence is also missing in the case. Sh. S.K. Sangwan, Assistant Director Forensic Science Laboratory, Madhuban (PW9) was to receive the samples for analysis. According to him on 5.11.2007, four sealed parcels were received in the laboratory for analysis. During cross examination he states that first of all he had received the samples on 31.10.2007, but the same were returned because the number of seals on few parcels did not tally with the number of seals mentioned in the paper. It has also come in evidence that the samples were taken on 2.11.2007 also but the same were not accepted by the Laboratory. EHC Rulda Ram (PW2), who had gone with the samples admits that he was posted at Police Station, Parao on 31.10.2007 and 2.11.2007, but he does not state if the samples were released for sending the same to the laboratory on 31.10.2007 and 2.11.2007. In any case, in view of the fact that the sample seals remained with the police officers and in view of the statement of Sh. S.K. Sangwan (PW9) the samples were taken to the laboratory on 31.10.2007, but due to the fact that the seals did not tally with the samples, the same were not accepted. The necessary inference would be drawn that the Investigating Officer tampered with the samples and affixed the seals in order to allow the same to be tallied in order to meet with the objection raised by the Assistant Director, Forensic Science Laboratory, Madhuban. It is admitted by HC Manoj Kumar that first of all samples were sent to the laboratory on 31.10.2007 and then on 2.11.2007 but the same were returned with the objections. But, EHC Rulda Ram (PW2) does not accept this fact which also goes to the root of the case. It is admitted by HC Manoj Kumar that first of all samples were sent to the laboratory on 31.10.2007 and then on 2.11.2007 but the same were returned with the objections. But, EHC Rulda Ram (PW2) does not accept this fact which also goes to the root of the case. In such a situation, no other inference than that the samples so sent to the laboratory for analysis were tampered by the investigating agency could be drawn. The trial court without taking into consideration the aforesaid serious infirmities in the prosecution case has taken the view against the accused. However, keeping in view the aforesaid infirmities, contradictions and other aspects of the case, this court is constrained to form a different opinion than what was formed by the trial court. 17. Resultantly, I accept the appeal, set aside the impugned judgment, acquit the accused of the charge framed against them and direct that they be set at liberty forthwith, if not required in any other case. Fine, if any deposited by them, be refunded. —————————