JUDGMENT Mr. Nirmaljit Kaur, J.:- The present appeal has been filed by Amrender Singh son of Karnail Singh and Deepak son of Jeet Singh against the order and judgment dated 05/06.03.2007 passed by Presiding Officer, Special Court, Kurukshetra, vide which, they were convicted to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, they were further directed to undergo simple imprisonment for another two years for an offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (here-in-after referred to as ‘the Act’). 2. As per the prosecution story, when Inspector Randhir Singh, C.I.A. Staff, Kurukshetra along with other police party was standing at Indri Chowk, Ladwa, an informer gave an information to the effect that Amrender Singh son of Karnail Singh, caste Jat Sikh resident of Shiv Colony Indri Road, Ladwa and Deepak son of Jeet Singh Saini resident of Indri Road, Ladwa had been indulging in the smuggling of poppy husk, who had brought four gunny bags (boris) of poppy husk in order to sell out the same, after purchasing the same, who had kept concealed all the four gunny bags in the house of Amrender Singh and this time, above said both Amrender Singh and Deepak were present at the house of Amrender Singh. If an immediate raid is conducted, they can be apprehended along with the poppy husk. Believing the information as true, an intimation was sent through wireless message to D.S.P. Saheb (Headquarter) Shri Jagwant Singh, H.P.S with a request to reach on the spot. On receipt of the information, Shri Jagwant Singh Lamba, Deputy Superintendent of Police, Head-quarter along with his staff reached at Indri Chowk, Ladwa in his Govt. Gypsi bearing registration no.HR65-1456. Then Randhir Singh, Inspector along with co-officials accompanying him searched the house of Amrender Singh and found four gunny bags kept in the rear room containing 38 kgs. 200 grams of poppy husk. After drawing the sample, a writing was sent to the police for registration of the case. They tried to join independent witness but all of them showed their inability. The case property was produced before Surender Singh SHO, who after verifying the facts, affixed his seal bearing letters ‘SS’ on the case property and forwarded report under Section 57 of the Act. 3. They tried to join independent witness but all of them showed their inability. The case property was produced before Surender Singh SHO, who after verifying the facts, affixed his seal bearing letters ‘SS’ on the case property and forwarded report under Section 57 of the Act. 3. In order to prove its case, the prosecution examined EHC Karambir Singh as PW1, who received report Exhibit PA under Section 57 of the Act from Police Station Ladwa. PW2 Constable Narender Kumar, who took the special report and handed over the same to the higher authorities. PW3 Constable Rajesh Kumar and PW4 HC Rakesh Kumar , who tendered that the case property remained in their possession. PW5 DSP Surinder Singh, who was posted as SHO in Police Station Ladwa, before whom, the case property was produced , as well as, PW10 Inspector Randhir Singh and PW11 ASI Jahangir Singh, who were the recovery witnesses besides the other formal witnesses. 4. In defence, the accused examined Head Constable Ram Lal as DW1, Harinder Singh as DW2, Jai Pal as DW3 and Sukhbir Singh as DW4. 5. While challenging the impugned order and judgment, the following arguments were raised; (i) The house, in question, was owned by Isher Kaur i.e the mother of the appellant Amrender Singh, whereas, Deepak is only a neighbourer. They were arrested outside the house. There were other members residing in the same house i.e. his brother, his wife, as well as, his mother. However, they were not even arrayed as an accused, whereas, Deepak is only a neighbour. Amrender Singh was not residing with his mother. Thus, the appellants are not found in the conscious possession. (ii) Admittedly the present case was registered on the basis of secret information. The secret information was not reduced into writing. Accordingly, there is non-compliance of Section 42 of the Act. (iii) The provisions of Section 100 of the Cr.P.C have not been complied with. No independent witness from the area was joined by the prosecution, whereas, the alleged recovery took place from a house situated in a busy locality. The sample seal after use was not handed over to any independent witness. The link evidence is missing. 6. (iii) The provisions of Section 100 of the Cr.P.C have not been complied with. No independent witness from the area was joined by the prosecution, whereas, the alleged recovery took place from a house situated in a busy locality. The sample seal after use was not handed over to any independent witness. The link evidence is missing. 6. Learned counsel for the respondent-State, on the other hand, supported the conviction by referring to the order and judgment of the trial Court, wherein, it is held that the said house, from where the recovery was made, belonged to the mother of the appellant-Amrender Singh and that accused Deepak was residing in the same colony and, therefore, since the appellant-Amrender Singh was residing with his mother and Deepak was residing in the same colony, they were in conscious possession. Moreover, appellants Amrender Singh and Deepak were found present in the house when the recovery was effected and the search resulted into the recovery of four bags containing poppy husk. 7. Learned counsel for the parties were heard. 8. The stand taken by the appellant Amrender Singh as emerges from his statement recorded under Section 313 Cr.P.C is that no recovery was effected from the township of Ladwa on 02.08.2005 from the alleged house. Neither the police party nor the D.S.P. Jagwant Lamba had visited Ladwa on 02.08.2005 and that he had been falsely involved in the present case at the behest of Head Constable Ram Lal and Constable Ramesh as they were having enmity towards him, whereas, Deepak stated that he had no concern with the alleged recovery or the place of recovery. 9. DW-4 Sukhbir Singh son of Arjun Singh aged 45 years, who is the Municipal Counsellor of Ward no.8, Ladwa appeared and stated that the brother of Amrender Singh i.e. Harvinder Singh son of Karnail Singh lives in the same colony along with his wife, mother and children. Accused Deepak resides in the same colony, whereas, accused Amrender Singh does not live with Harvinder Singh in the said colony. Meaning thereby that Harvinder Singh was residing with his mother, whereas, Amrender Singh was not residing with her. It is also not disputed that the other appellant Deepak is not the resident of said house. Accused Deepak resides in the same colony, whereas, accused Amrender Singh does not live with Harvinder Singh in the said colony. Meaning thereby that Harvinder Singh was residing with his mother, whereas, Amrender Singh was not residing with her. It is also not disputed that the other appellant Deepak is not the resident of said house. Harvinder Singh son of Karnail Singh, the brother of the appellant Amrender Singh appeared as DW-2 and stated that he had purchased the house in the name of his mother Ishar Kaur and he was residing with his mother and wife and children in the same house. He further stated that the accused Amrender Singh and Deepak had no concern with the said house from where the alleged recovery was shown by the police. DW-3 Jai Pal who appeared and stated that document marked D1 was executed in his presence. He further stated that the accused Amrender Singh does not live in the said house, rather, he was living with his elder brother Manjit Singh in Mahabir Colony, Ladwa, whereas, Deepak lives near to the house of Harvinder Singh. 10. Thus, there were other people residing in the house belonging to Ishar Kaur from where the recovery was effected. 11. On the other hand, the prosecution has not been able to prove that Harvinder Singh was in the exclusive possession of the said house. 12. Thus, it is evident from the evidence led by the defence, as well as the prosecution that Harvinder Singh was not the owner of the house and even if it is accepted for the sake of arguments that Harvinder Singh was residing along with his mother-Ishar Kaur, it is also proved on record that his brother Harvinder Singh, his wife and children were also residing in the said house. Thus, under no circumstances can the house be held to be in the exclusive possession of appellant-Amrender Singh. Deepak admittedly is only a neighbour. As such, it cannot be said that the accused were in conscious possession of contraband. This Court, in the case of Sukhdev Singh vs. State of Haryana reported as 2008(1) RCR (Crl.) 503, in somewhat similar circumstances held in para 15 as under:- “15. xxx xxx xxx The raiding party was consisting of two senior police officers holding the rank of Sub Inspector. They have still not investigated the case properly. This Court, in the case of Sukhdev Singh vs. State of Haryana reported as 2008(1) RCR (Crl.) 503, in somewhat similar circumstances held in para 15 as under:- “15. xxx xxx xxx The raiding party was consisting of two senior police officers holding the rank of Sub Inspector. They have still not investigated the case properly. They can be expected to know that in order to fasten the appellant with contraband and its recovery, it was essential for them to prove and show that the house was that of the appellant and further that it was in his exclusive possession.” 13. The prosecution was bound to rule out the possibility that there was no occupant except the present appellant who had brought the contraband to the said house. This Court, in the case of Nachhatro vs. State of Punjab reported as 2008(1) RCR(Crl.)638 held to the said effect as under:- “7. xxx xxx xxx The house having not been proved to be in exclusive possession or in the ownership of the appellant, can obviously lead to an inference that the contraband was not in the conscious or exclusive possession of the appellant. The possibility cannot be ruled out that her husband or any other occupant of the house had brought this contraband even if recovery is taken to be in the manner as is alleged. The prosecution was bound to rule out this possibility to bring home the offence against the appellant under Section 15 of the NDPS Act. Case of Sees v. State of Punjab reported as 1995(3) RCR(Crl.) (16) (P&H) can be referred to with advantage in this regard. This was a case of recovery of 14 bags of poppy husk from the house of an accused. Other members were also found living therein. This Court took the view that it can not be taken that the recovery was effected fro the exclusive possession of the accused. There is, as such, a justification in the plea raised by the defence on behalf of the appellant.” 14. This view has been upheld in the case of State of Punjab vs. Balkar Singh and another reported as 2004 Supreme Court Cases (Crl.) 838, as well as, in the case of Avtar Singh vs. State of Punjab reported as 2002(4) RCR (Criminal) 180. This view has been upheld in the case of State of Punjab vs. Balkar Singh and another reported as 2004 Supreme Court Cases (Crl.) 838, as well as, in the case of Avtar Singh vs. State of Punjab reported as 2002(4) RCR (Criminal) 180. Thus, the prosecution has failed to prove that the contraband was recovered from the exclusive conscious physical possession of the appellants. 15. Still further, it is not disputed that the said raid was conducted on the basis of secret information received by PW10 Inspector Randhir Singh. It is also not disputed that the secret information was not reduced into writing. The said information was received at 1.40 p.m. The distance of the police station from the place where the said information was received is 01 km and the distance of the police station from the place of recovery is 02 kms. Thus, admittedly, Section 42 of the Act has not been complied with. It is the consistent stand of the Hon’ble Apex Court that violation of the provisions of Section 42 of the Act would make the case of police doubtful. 16. The Division Bench of this Court in the case of Mohinder Singh s/o Sodagar Singh vs. State of Haryana (Crl. Misc. No.119-DB of 2000, decided on 05.02.2009) after relying on various judgments of the Hon’ble Apex Court set aside the conviction on account of non-compliance of Section 42 of the Act by holding as under:- “In Beckodan Abdul Rahiman Vs. State of Kerala 2002(2) RCR (Criminal) 385 (SC), it was held that under Section 42(2) of the Act, the empowered Officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof, to his immediate official superior. It was further held that to that extent, the provisions of Section 42 of the Act, are mandatory, and total non-compliance therewith, would cause a great prejudice to the accused and affect the case. In State of West Bengal and others Vs. Babu Chakraborty AIR 2004 S.C. 4324, it was held that the provisions of Section 42(2) to the extent of reducing into writing the secret information and sending the same to the official superior, are mandatory in nature, and complete non-compliance therewith would render the case of the prosecution suspect, and cause a great prejudice to the accused. Babu Chakraborty AIR 2004 S.C. 4324, it was held that the provisions of Section 42(2) to the extent of reducing into writing the secret information and sending the same to the official superior, are mandatory in nature, and complete non-compliance therewith would render the case of the prosecution suspect, and cause a great prejudice to the accused. Similar principle of law was laid down in Gurnam Kaur and others Vs. State of Punjab 2006(3) RCR (Criminal) 984 (D.B.) (P&H). Since, no explanation was furnished by the Investigating Officer for non-compliance with the aforesaid provisions of Section 42 of the Act to the extent aforesaid, which are mandatory, in nature, the Court cannot coin any of its own, to fit in with the prosecution case. No doubt, the counsel for the respondent submitted that it was a lapse, on the part of the Investigating Officer and as such, the merits of the prosecution case, on that account, cannot be affected. The submission of the counsel for the respondent, in this regard, is without merit. There are some irregularities committed by the Investigating Officer which are curable. If the Investigating Officer commits an illegality amounting to the violation of the mandatory provisions of the Act, the same cannot be ignored. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the present case. On account of complete non-compliance with the mandatory provisions of Section 42 of the Act, the case of the prosecution because highly suspect, causing a great prejudice to the accused, but the trial Court failed to take into consideration this aspect of the matter, as a result whereof, it fell into a grave error in recording conviction and awarding sentence.” 17. Hon’ble the Apex Court in the case of State of Orissa vs. A. Rajeswar Patra reported as 2006(2) R.C.R(Crl.) 129 set aside the conviction by holding that Section 42 of the Act would come into play if the search is not from the public place but from the residential portion and, therefore, the mandatory requirement of reducing the secret information into writing was necessary. It was further held that in the absence of such recording of information by the Investigating Officer, there is a violation of Section 42 of the Act. It was further held that in the absence of such recording of information by the Investigating Officer, there is a violation of Section 42 of the Act. In fact, Hon’ble the Supreme Court, in the case of State of West Bengal and others (supra) went on to hold in para 22 as under:- “22. Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. This Court also held that failure to comply with Section 42(1), proviso to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused.” 18. Thus taking into account the totality of the facts and circumstances in the present case, the net result is that the prosecution has not been able to prove the conscious possession of the contraband qua the appellants beyond any shadow of reasonable doubt and coupled with the fact that the secret information was not reduced into writing has further resulted in violation of Section 42 of the Act, causing great prejudice to the appellants and has rendered the case doubtful. Consequently, the appeal is allowed. The conviction and sentence awarded to the appellants vide judgment and order dated 05/06.03.2007 passed by Presiding Officer, Special Court, Kurukshetra, is set aside and they are ordered to be set at liberty forthwith. ----------------------