JUDGMENT : This appeal under Section 374 of the Cr. P.C. has been preferred by the appellant Shankarlal being aggrieved by the judgment dated 07.01.2006 passed by the Court of Shri Jaswant Singh Kshtriya, Special Judge (N.D.P.S. Act), Mandsaur in Special S.T. No. 03/2003 by which the appellant Shankarlal has been convicted under Section 8/18/(b) of the N.D.P.S. Act and sentenced to rigorous im­prisonment for 15 years and fine of Rs. 1,50,000/- and under Section 25 (a) of the N.D.P.S. Act sentenced to rigorous impris­onment for 10 years and fine of Rs. 1,00,000/- and under Section 8/15(c) of the N.D.P.S. Act sentenced to 10 years rigorous imprison­ment and fine of Rs. 1,00,000/-, in default of payment of fine to undergo additional R.I. for 3 years, 2 years and 2 years respectively. 2. According to the prosecution case, on 03.08.2002 Shri Ajay Singh Rathore, Sub Inspector, Police Station Kotwali, Mandsaur, District Mandsaur, on the information of the informer that Mahesh Ratnawat, who is doing the business of ready made cloth in the name of Manglam Dresses is busy in his house "Sahyog Sadan" and selling chemical and pow­der being used for the preparation of Opium and Heroin. Mahesh and his father Shankarlal are going to some place with chemical pow­der and Opium. Therefore, raid party was ar­ranged and the party reached the house of accused. On call, Mahesh was found present there and when he was asked to come out of the house, then he went inside the house and ran away from the back door. On the second call his father Shankarlal came out of the house and told that Mahesh has gone somewhere from the back door. Shankarlal on inquiry told that this is his house and he is residing with his son Mahesh. Thereafter he was apprised with the information of the informer and after ob­taining his due consent and after his search by the police and after order of the police party Shankarlal opened the lock of the room before the witnesses. During search of the room in a blue plastic cane of 50 litre capacity 2 polythene bags containing Opium were found which contained 15-15 kg. Opium, In a black colour bag 11 kg. Opium was found. There­after two samples of 30 gm. During search of the room in a blue plastic cane of 50 litre capacity 2 polythene bags containing Opium were found which contained 15-15 kg. Opium, In a black colour bag 11 kg. Opium was found. There­after two samples of 30 gm. each was col­lected after mixing of the Opium and the samples and the remaining bulk quantity was duly sealed and marked as A, A1 & A2. Thereafter on further search in a blue colour drum a powder in the granule shape was found in 5 polythenes which were contained 5 kg. powder on which qualizan fine chemical and Allononium chloride was written was found, hence 2 samples of 30gm. were prepared from one packet and marked as B1, B2, and the remaining quantity was kept in the drum and it was marked as B and duly sealed. On check­ing 7 canes of 50 litre each were found con­taining liquid acetic anhydride, hence thereaf­ter 40 samples of acetic anhydride were pre­pared and marked as article C1, C2, D1, D2, E1, E2, F1, F2, G1, G2, H1,H2, andI-1,I-2, and bulk quantity was sealed and marked as C,D,E,F,G,H, & I. All the packets were duly sealed. 3. Two cartons were also found in their godown which contained 14 and 16 bottles of Acetile Chloride and in the third carton a sealed bottle of solvent ether was found, hence samples of two bottles were prepared and the cartons were marked as article J, J-1, J-2, article K, K1, K2 and article L, L1, L2. In the same godown on checking of 26 gunny bags black poppy seeds mixed with poppy husk were found and two samples of 250 gm. were prepared and marked as M1, M2 and they were duly sealed. 4. On further search cash Rs. 41,000/- in the shape of Rs. 500/- note was seized by the police and after completing investigation Crime No. 457/2003 was registered at the police station. The seized property was deposited in the Malkhana of the Police Station and challan was filed against Shankarlal declaring Co-ac­cused Mahesh as absconding. After trial the appellant was convicted as mentioned above. 5. It has been argued by the appellant that he has been falsely implicated in this case. The seized property was deposited in the Malkhana of the Police Station and challan was filed against Shankarlal declaring Co-ac­cused Mahesh as absconding. After trial the appellant was convicted as mentioned above. 5. It has been argued by the appellant that he has been falsely implicated in this case. The locked room and godown from where the Opium and other property was seized was in the exclusive possession of the applicant but this room was rented to Udaylal vide rent note Ex.D/4 and it was in the possession of Udaylal. The police opened it by breaking lock of the door. It is wrong to say that he opened the room with the key from his possession. The rent note and defence witnesses have been produced in the evidence. The evidence has not been appreciated by the Court in the proper perspective. Independent witnesses are hos­tile and they have supported the fact that the room was rented to Udayalal. Anil Singh (PW-9), Seizing Officer did not seized the lock and key and he has also admitted this fact that he did not seize the lock and key. The accused on 05.08.2002 also complained to the Court that the lock of the room was broken by po­lice and it was not opened by the accused. The compliance of Section 52 of the N.D.P.S. Act has not been proved by the evidence produced. The bulk quantity of the property from which the samples were taken had not been produced at the time of the trial and conscious possession of the appellant was not proved on the seized property, hence the appeal be accepted. 6. It has been argued on behalf of the re­spondent that the appeal is baseless. The case was proved on the basis of the evidence pro­duced before the Trial Court. The room was in the possession of the accused Shankarlal and he opened the room with the key in his possession. The appeal being baseless be dis­missed accordingly. 7. Arguments considered. Record of the Trial Court perused. 8. As regards the compliance of Section 52-A of the N.D.P.S. Act is concerned, proceed­ings were taken up before the Executive Mag­istrate and Tehsildar, Tehsil Mandsaur on 19.01.2003. The appeal being baseless be dis­missed accordingly. 7. Arguments considered. Record of the Trial Court perused. 8. As regards the compliance of Section 52-A of the N.D.P.S. Act is concerned, proceed­ings were taken up before the Executive Mag­istrate and Tehsildar, Tehsil Mandsaur on 19.01.2003. In this respect order sheet dated 19.01.2003 was written in which it was mentioned that Shri Shyamlal Singh Chouhan, Sta­tion Incharge, Bhanpur produced the prop­erty and samples were resealed and they were handed over to Shri Shyamlal Singh Chouhan, A.S.I, with the direction to produce them be­fore the Court. This ordersheet was not ex­hibited and the statement prepared in this re­spect which was attested by the Executive Magistrate was also not proved in the Court no evidence in this respect was produced in the Court. Shri Shyamlal Singh Chouhan (PW-8) did not state anything with reference to this fact and hence it was not proved that the pro­ceedings under Section 52-A of the N.D.P.S. Act were taken up before the Tehsildar and Executive Magistrate, Mandsaur. It also seems from the ordersheet that the property was not disposed of by the Executive Magistrate and Tehsildar but it was returned to the Inspector Shri Shyamlal Singh Chouhan with a direction to produce it before the Court, but it was not produced at the time of the trial. Therefore, the compliance of Section 52-A of the N.D.P.S. Act has not been proved. 9. At the time of the evidence, the indepen­dent witnesses J.S. Bhati (PW-3) and Bherulal (P W-4) were examined and they turned hos­tile and they did not support the fact that room and godown from where the property was seized was in the possession of appellant Shankarlal. They have also not supported the fact that Shankarlal opened the room with the key from his possession but they have sup­ported the fact that room was rented to Udayram and the lock was broken up by the police before them. Hence, the fact that seized property was in the possession of appellant Shankarlal has not been proved by the inde­pendent witnesses. Shyamlal Singh Chouhan (PW-8) in cross-examination admitted the fact that he did not seize the lock or broken lock or the keys. Anil Singh Rathore (PW-9) has also admitted the fact that he did not seize the lock and key. Shyamlal Singh Chouhan (PW-8) in cross-examination admitted the fact that he did not seize the lock or broken lock or the keys. Anil Singh Rathore (PW-9) has also admitted the fact that he did not seize the lock and key. In this way it is clear that lock and key were not seized by the police which was an important of evidence. 10. As regard the production of property at the time of evidence is concerned Jitendrasingh Bhati (PW-3) has deposed that samples re­turned from FSL marked "A to I" bears his signatures on the chits attached on it. The samples "L to W" bears his signature on the chits. Bherulal (PW-4) has also admitted the fact that articles "A to I" and "L to W" bears his signatures. Anil Singh Rathore (PW-9) has admitted that articles "A to W" bears his sig­natures. This shows that only the samples ar­ticle "A to I" and article "L to W" were only produced in the Court. According to the sei­zure memo Ex.P/11, three packets of Opium "A", "A1" and "A2" were kept in a cloth's bag and marked as article "A" and after sepa­rating the samples of 30gm. each, the remain­ing seized quantity kept in two bags in two small plastic jars and marked as article "A1", "A2" but the packets bearing the bulk quan­tity of the Opium were not produced at the time of the evidence. Other articles which were seized at the time of the seizure were also not produced before the Trial Court. In this way, seized property was not produced before the Trial Court, and therefore, in the absence of the packets of bulk quantity from which the samples were alleged to be prepared the fact of seizure is not legally proved, in view of the law laid down in Jitendra and Another vs. State of M.P. (2004) (1) EFR 22) and Noor Aga vs. State of Punjab and Haryana (2008 (W) A.D. (Cr.) S.C. 337 by Apex Court, the fact of seizure was not proved. In Jaikishan S/o Nanuram Patidar vs. Union of India through C.B.N., Neemuch 2007 (1) ANJ (MP) 365 it has been held that the prosecu­tion has failed to prove the ownership and possession of the accused in the room from where the contraband-articles were seized. Under the circumstances, the statement of Seizing Officer was not believable to prove the seizure. 11. In Jaikishan S/o Nanuram Patidar vs. Union of India through C.B.N., Neemuch 2007 (1) ANJ (MP) 365 it has been held that the prosecu­tion has failed to prove the ownership and possession of the accused in the room from where the contraband-articles were seized. Under the circumstances, the statement of Seizing Officer was not believable to prove the seizure. 11. As regards the exclusive possession of the appellant on the room from where Opium was seized is concerned, it has not been proved by the prosecution evidence that the room was in the exclusive possession of the appellant Shankarlal. Jitendrasingh Bhati (PW-3) and Bherulal (PW-4) has deposed that police called the appellant Shankarlal and. thereafter the lock of the room was broken down by the police. They have also stated that appellant Shankarlal at that time said that the house has been rented and the key is with the tenant. Shyamlal (PW-8), the Investigating Officer has admitted that the room of incident was on rent. In defence, rent note Ex.D/4 has been produced and Ashok Tiwari (DW-1), the Clerk of Registration Office has proved the fact that the stamp of Rs. 100/- (Ex.D/4) was purchased by Udayram for Shankarlal for rent note. Vinod Kumar (DW-3) has also sup­ported that fact the Udayram rented the room from Shankarlal. Rent note (Ex.D/7) was for 3 years and the rent note bears his signatures. "B to B" and "A to A" are signatures of Udayram and "C to C" and signature of Anil Singh and "D to D" are singatures of Shankarlal the landlord. From Ex.D/4 to Ex.D/7 the rent note, it reveals that from 1st March. 2001 the room was rented to Udayram at a rent of Rs. 1,500/- per month. This incident took place on 03.08.2002, hence the room was in the possession of the tenant Udayram. It was the duty of the prosecution to prove the fact that the room from where the contra­band-article was seized was in the exclusive possession of the appellant Shankar. Hence the possession and conscious possession of the appellant in the room from where the Opium was seized has not been proved. In Bahadur Singh vs. State of M.P. & Another, 2002 Vol.1 EFR 460, it has been held that there are serious discrepancies in the evidence in respect of recovery and seizure. Hence the possession and conscious possession of the appellant in the room from where the Opium was seized has not been proved. In Bahadur Singh vs. State of M.P. & Another, 2002 Vol.1 EFR 460, it has been held that there are serious discrepancies in the evidence in respect of recovery and seizure. Appellant cannot be convicted on the sole testimony of the police witness and applicability of Section 35 of the N.D.P.S. Act will not arise when the recovery itself is doubtful and, therefore the appellant is entitled to benefit of doubt. On the basis of the above discussion, in this case at the time of the trial the independent wit­nesses were declared as hostile. The compli­ance of Section 52-A of the N.D.P.S. Act was not proved. The seized articles containing bulk quantity of the Opium and other contraband articles were not produced before the Trial Court. The conscious and exclusive posses­sion of the appellant over the room from where the Opium and other contraband articles were seized was not proved. Under the circum­stances, the appellant was not liable to be con­victed. Hence, this appeal deserves to be al­lowed. 12. Therefore, this appeal is allowed and appellant is acquitted from the charges under Section 8/18 (b) and 8/15(c) and Section 25-A of the N.D.P.S. Act. He should be released if not required in any other offence.