JUDGMENT I. S. Shrivastava, J. 1. These appeals have been preferred under Section 374 of the Cr.P.C by the appellants being aggrieved by the judgment dated 05/01/2004 passed by the Court of Ku. Karuna Trivedi, Special Judge (under Rs. NDPS Act'), Mandsaur in Special Case No. 23/1997 by which the appellants Sundarlal and Shivlal have been convicted under Sections 8/ 18(b) and 8/ 21(c) of the Narcotic Drugs and Psychotropic Substances Act (in short 'the NDPS') and applicant Mulchand has been convicted under Sections 8/29(18-b) and 8/29(21-c) of the NDPS Act and sentenced to undergo rigorous imprisonment of twelve years each alongwith fine of Rs. 1,20,000/- each; in default of payment of fine to undergo rigorous imprisonment of three years by each appellant. 2. According to the prosecution story, Rajesh Nagpal, Asst. Narcotic Commissioner, Neemuch received an information from the informer on 07/02/1997 that accused Shivlal and Sunderlal were running a laboratory and preparing morphine illegally in their house situated at Gram-Narayangarh, Mohalla Upallapura, hence the above information was registered as DRI Ex.P/22 and the same was forwarded to senior officer Asst. Narcotic Commissioner, Neemuch. Thereafter, preventative party was arranged in the leadership of S.P.S. Yadav and the house of Shivlal was raided in presence of the witnesses. Accused Shivlal was called out of the house and after giving information of the informer, his consent for search of the house was taken. During search of the house, accused Sunderlal was found. Before the accused Sunderlal and Shivlal and panch witnesses, 600 grams heroin was found in a polythine bag which was recovered from the room situated in the left side of the courtyard. Thereafter, in a carton and in a brass bowl, respectively 8.330 kg and 5.500 kg opium was found and 16.700 kg waste material of opium after preparation of morphine was found. From the seized morphine, two samples of 5 grams each were prepared, sealed and marked as A & B. From the seized opium recovered from two cartons, two samples of 24 grams each were prepared from both the carton. One carton was marked as 'A' and samples were marked as A-1 and A-2 as well as other carton was marked as 'B' and samples of it were marked as B-1 and B-2. Two samples of 20 grams each were prepared from the waste opium and marked as C-1 and C-2. One carton was marked as 'A' and samples were marked as A-1 and A-2 as well as other carton was marked as 'B' and samples of it were marked as B-1 and B-2. Two samples of 20 grams each were prepared from the waste opium and marked as C-1 and C-2. All the samples were sealed as per procedure. One motorcycle Rajdoot was also seized from the house of accused Shivlal and on interrogation, they informed that they had prepared the morphine to deliver it to businessman of Jaipur. Thereafter, the statement of the witnesses were recorded and after completion of investigation on the spot, the raid party returned to the office and report Ex.- P/12 to Ex.-P/21 were sent to Superintendent Preventative. The seized property was deposited in Malkhana and samples of it were sent to Opium and Alkaloid Factory, Neemuch. Report of it Ex.-P/26 was received from there. During investigation, accused Sunderlal informed that for the preparation of morphine, opium is required and he purchased the same from his relative accused Mulchand. On 06/02/1997, he had advanced Rs. 1,60,000/- to Mulchand for the purchase of 30 kg opium. On the basis of the statement of Sunderlal, on 13/02/1997 in the leadership of M.L. Malecha, preventative party raided the house of Mulchand before the witnesses and seized Rs. 1,57,000/- from a atechi. He disclosed the fact that he received this money from Sunderlal for opium and he had spent Rs. 3000/, hence accused Mulchand was also arrested. After completion of investigation, challan was filed and after trial, the applicants/accused were convicted as stated herein above. 3. It has been argued on behalf of the appellants that they have been falsely implicated in this case. The independent witnesses of the seizure memo, Bharatsingh PW-4 and Ramchandra PW-6 were hostile and they did not support the prosecution case. Compliance of Section 52 of the NDPS Act was not proved. The seized property was not produced before the Trial Court; only the samples were produced. The ownership of the house, from where the opium and heroin were seized, did not prove to be the ownership and possession of the accused Shivlal. The record shows that the house was of the ownership of the third person. There is no evidence to prove that the accused was living in that house and was in conscious possession of it. The record shows that the house was of the ownership of the third person. There is no evidence to prove that the accused was living in that house and was in conscious possession of it. There is non-compliance of Section 52 of the NDPS Act. The house was not searched in conformity of the provision of Section 100 of the Cr.P.C. Accused Mulchand has been falsely implicated. Actually, Rs. 1,57,000/- was taken out from his possession illegally on 11/02/1997 and the money was not deposited by the Narcotic Party. No seizure memo was prepared. He made a complaint to Superintendent of Police and also mentioned this fact in his anticipatory bail application. Thereafter, it has been shown to be seized on 13/02/1997, Hence the appeal should be accepted. 4. It has been argued by the respondent's counsel that there is compliance of Section 42 of the NDPS Act. The house was in possession of the accused Shivlal. By the evidence, the seizure was duly proved. The case has been proved by the evidence produced. The appeal being devoid of merit be dismissed. 5. Considered the arguments. Record perused. 6. As regard to production of the property in the Court, it is admitted that only the samples A-1, A-2, B-1 B-2, C-1, C2 were produced in the Court and the bulk quantity of the seized heroin, opium and waste material of opium after preparation of the heroin was not produced in the Court. An application was filed by the defence on 25/10/1999, wherein it was requested that the seized bulk quantity should be produced in the Court, but the Court held that the seized opium was in bulk quantity, hence for the reason of safety, it was not necessary to call the whole property in the Court, hence the application was dismissed, but by this order, legal requirement has not been fulfilled. It was the duty of the prosecution to produce the property which was not in huge quantity that it was not impossible to produce it in the Court. An appeal should been filed by the prosecution. By such order, the defence has been adversely prejudiced. 7. The independent witnesses Bharatsingh PW-4 and Ramchandra PW-6 were hostile and they did not supported the fact of seizure. Independent witness Bharatsingh PW-4 has deposed that he knew the accused Sunderlal and Shivlal, but he did not know the accused Mulchand. An appeal should been filed by the prosecution. By such order, the defence has been adversely prejudiced. 7. The independent witnesses Bharatsingh PW-4 and Ramchandra PW-6 were hostile and they did not supported the fact of seizure. Independent witness Bharatsingh PW-4 has deposed that he knew the accused Sunderlal and Shivlal, but he did not know the accused Mulchand. He was called on by the Narcotic people at Deora Chowk, because he was the lambardar of the village, hence he went there. Narcotic people got his signatures on Ex.-P/7 to Ex.-P/13. He has not supported the fact that the seizure was made from the house of accused Shivlal and Sunderlal. Ramchandra PW-6 has deposed that he knew the accused Shivlal and Sunderlal. The narcotic people came to his village on 07/02/1997. They had taken him to Neemuch by their Jeep. At Narayangarh, no seizure and panchanama were prepared. His signatures were taken at Neemuch on Ex.-P/7 to Ex.-P/13. Bharatsingh was also brought from Narayangarh in the same Jeep and he had not signed before him. Ramchandra has not supported the fact that the Narcotic people went to the house of accused Shivlal. He has also not supported the fact that the opium and heroin was seized from the house of Shivlal. In this way, the independent witnesses of the seizure memo have not supported the fact of seizure. Hence according to law laid down in the case of Ritesh Chakarvarti v. State of M.P II (2006) ACR 362 and Bholaram Kushwah v. State of M.P. 2001 (1) ERF 160 seizure panchanama has not been proved. 8. According to law laid down in the case Jitendra and Anr. v. State of M.P. reported in 2004 (10) SCC 562 , it has been held by the Apex Court that: the evidence to prove that charas and ganja were recovered from the possession of accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak PW-7, Angad Singh PW-8 and sub-inspector D. J. Raj PW-6, there is no independent witness as to the recovery of the drugs from the possession of accused. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak PW-7, Angad Singh PW-8 and sub-inspector D. J. Raj PW-6, there is no independent witness as to the recovery of the drugs from the possession of accused. The Charas and Ganja alleged to have been seized from the possession of the accused, were not even produced before the Trial Court, so as to connect it with the samples sent to the FSL. There is no material produced in the Trial apart from the interested testimony of police officers, to show that the Ganja and Charas were seized from the possession of the accused or that the samples sent to FSL which were taken from drugs seized from the possession of the accused. In the Trial, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of Charas and Ganja were seized from the possession of accused. T he best evidence would have been the seized materials, which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden, which lies on the prosecution, particularly where the offence is punishable with stringent sentence under the NDPS Act. In this way, by non-production of the bulk quantity of seized opium and heroin as well as waste material of the opium after preparation of the morphine, it cannot be said that the samples were prepared from the sulk quantity, therefore not only the defence has been prejudiced but also the seizure memo have not been proved legally. The same view has been adopted by the Apex Court in the case of Noor Aga v. State of Punjab 2008 (iv) AD 337 as well as in the case of Laxminarayan v. State of M.P. 2009 (2) JLJ 148 9. As regard to possession of accused Shivlal and Sunderlal over the house from where the contraband articles were seized, Rameshchandra Rathore PW-5, Revenue Sub-Inspector, Nagar Panchyat, Narayangarh has deposed that on the written request by the Narcotic people, he had given copies of Tax register and map Ex.-P/15 and Ex.-P/16 respectively. According to Ex.-P/15, accused Shivlal is the owner of house No. 363/6. According to Ex.-P/15, accused Shivlal is the owner of house No. 363/6. In cross-examination, he has admitted that on survey No. 363/6, house of Nanda @ Bhagga is entered in the year 1936. The register is maintained in the Nagar Panchyat for the mutation of the house, but he failed to search the mutation file and register with respect to accused Shivlal, hence he is not in a position to state that when and by the order of whom, name of accused Shivlal was mutated at this house. There is no column in the house register that who is the owner of the house. In the house register Ex.-D/4, name of accused Shivlal has been entered in the house No. 363/6, hence by this document which has been produced by the defence-, it is clear that accused Shivlal is the owner of the house, but it has not been mentioned in Panchanama Ex.-P/7 to Ex.-P13 that the seizure was made from the house No. 363/6; it is not mentioned in the seizure memo also that what was the number of the house from where the contraband articles were seized. Four boundaries of the house has also not been mentioned, hence the fact that the contraband articles were seized from the house No. 363/6, has not been proved. In the case of Mohd Aslam Khan v. NCB AIR 1996 SCC 3033 the Apex Court has held that the prosecution failed to establish the ownership of the house in question belonging to the appellant, hence the conviction and sentence cannot be sustained. In the case of Ismile Khan v. State of Gujrat 2001 (2) EFR 6, it has been held that all the accused were found in the room when the inspector raided the room, one gunny bag with charas was found in a corner. There is no evidence that accused were dealing with narcotic drugs. There is also no evidence to show that accused had possession of the room, actual or constructive. There is no statutory presumption for drawing any presumption that the accused has possession of the narcotic or psychotropic substance. No presumption under the law even under Section 114 evidence Act can be drawn because the accused were present when room was raided. On the solitary evidence the conviction cannot be sustained. Under these circumstances, the appellants were not liable to be convicted. 10. No presumption under the law even under Section 114 evidence Act can be drawn because the accused were present when room was raided. On the solitary evidence the conviction cannot be sustained. Under these circumstances, the appellants were not liable to be convicted. 10. It has been argued that accused Sunderlal was arrested on 07/02/1997 and since then he is in police custody, His statement Ex.-P/19 was recorded by Kewalsingh PW-7, in which he told that 600 grams morphine which had been seized belongs to the opium of Shivlal and him. His further statement Ex.-P/25 was recorded on 12/02/1997 while he was in police custody by A. K. Mishra, Narcotic Inspector, in which he stated that he had given advance of Rs. 1,60,000/- on 06/02/1997 to accused Mulchand from whom, whenever he required, he purchased the opium. This statement in the custody of narcotic department was not admissible in evidence. It has been further argued that Rs. 1,57,000/- was seized by the narcotic people in the night of 11/02/1997 and it was kept illegally upto 13/02/1997. In his anticipatory bail application Ex.-D/29, this fact was stated and vide Ex.-P/30, he also made complaint to Superintendent of Police, Mandsaur. In the evening of 13/02/1997, accused Mulchand was arrested at 5 O'clock vide arrest memo Ex.-P/3 and thereafter the money was deposited in Malkhana on 14/02/1997. All the proceedings shows that accused Mulchand has been falsely implicated. Statement of co-accused is not admissible in evidence while he was in custody. It is also stated that the currency note was not identified by co-accused Sunderlal and there was no mark of identification. 11. It has been argued by the respondent's counsel that the statement of co-accused made to narcotic officer was admissible in evidence, hence the arguments of the appellants in this respect is baseless. 12. Considered the circumstances. Rs. 1,57,000/- was seized from the possession of accused Mulchand on 13/02/1997 at 1 pm vide seizure memo Ex.-P/2. Thereafter, vide arrest memo Ex.-P/3 he was arrested at 5 pm on 13/02/1997. Kailash PW-1, independent witnesses of Ex.-P/2 has been examined but other witness Parasram has not been examined. Though the Trial Court has held that the seizure memo Ex.-P/2 was proved from the statement of Kailash PW-1, but from the cross-examination of Kailash PW-1, it reveals that he has not supported the fact of seizure of Rs. 1,57,000/-. Kailash PW-1, independent witnesses of Ex.-P/2 has been examined but other witness Parasram has not been examined. Though the Trial Court has held that the seizure memo Ex.-P/2 was proved from the statement of Kailash PW-1, but from the cross-examination of Kailash PW-1, it reveals that he has not supported the fact of seizure of Rs. 1,57,000/-. There is material discrepancies in his statement. Kailash PW-1 has further deposed that the narcotic people came to the house of accused Mulchand and they took Rs. 1,57,000/- and also took Mulchand with them. The Narcotic people did not told before him to Mulchand that why they wanted to search his house. No panchanama was prepared before the search before him. He has admitted his signatures on panchanama under Section 50 of the N.D.P.S Act and the seizure memo Ex.-P/2. He has further deposed that accused Mulchand returned to his home in the next day. This witness was declared hostile. In cross-examination, he has denied the fact that before him, the Narcotic Inspector told that the morphine had been seized from accused Shivlal and Sunderlal. It is also corrected to say that he was suppling opium to Shivlal and Sunderlal. It is also denied that the narcotic people informed that he had received Rs. 1,60,000/- for the supply of 30 kg opium from Sunderlal. It is corrected to say that Rs. 1,57,000/- was seized from the house of Mulchand and panchanama was prepared before him. He has further deposed that he and accused Mulchand had signed the papers on the seizure memo. Further he has deposed that the house of Mulchand was searched at about 10 pm in the night, at that time no papers were prepared and they took Mulchand with them. On the next day, Mulchand returned to village. The narcotic people returned to the village on 13/02/1997 at Parshwanath Fanta which is 3 km from village Tiraha near Mhow-Neemuch Road, where all the documents were signed by him at the same time. It did not happen that first of all panchanama was prepared and after 4/5 hours, arrest memo was prepared. When the narcotic people were seizing money, accused Mulchand was saying that he had sold his tractor and agriculture land and received the seized money. He also said that the seized money is the income of Slate Pencil Factory. It did not happen that first of all panchanama was prepared and after 4/5 hours, arrest memo was prepared. When the narcotic people were seizing money, accused Mulchand was saying that he had sold his tractor and agriculture land and received the seized money. He also said that the seized money is the income of Slate Pencil Factory. Accused Mulchand made a complaint on the second day about taking out of his money by the narcotic people. After his complaint, a case was registered. This shows that according to the deposition of this witness, he has not supported the time of raid at 1 pm, but has deposed that the narcotic people raided at 10 to 11 pm in the night. When Mulchand returned from the custody on the next day, panchanama was prepared by the narcotic people on the third day and accused Mulchand was arrested. In this way, this witness Kailash PW-1 has not supported Panchanama Ex.-P/2 and P/3. 13 Despite this, there is no explanation, as to why accused Mulchand was not arrested at 1 pm when Rs. 1,57,000/- was seized from him. Arrest memo Ex.-P/3 shows that he was arrested at 5 pm while Ex.-P/2 the seizure memo was prepared at 1 pm. Why there is a gap of four hours in his arrest. 14. It has been argued on behalf of the appellants that on 11/02/1997 at 11 pm in the night, the narcotic people raided the house of Mulchand and seized Rs. 1,57,000/- from the suitcase kept in the Almirah of his house, but they did not give the receipt of it to him. They assaulted him and took him in the jeep to Neemuch, wherein on so many papers obtained his signatures. Thereafter, he came back to his house and make a complaint Ex.-D/30 to Superintendent of Police, Mandsaur on 13/02/1997 by UPC, the receipt of which is Ex.-D/31 and had also filed an anticipatory bail application Ex.-P/29 in the Sessions Court, Mandsaur, which was registered as Misc. case No. 87/1997. All the papers show that on 13/02/1997 after his complaint and filing of the bail application, accused Mulchand was arrested at 5 pm. 15. Considered the circumstances The bail application Ex.-D/29 may have been filed within the court time i.e. upto 5 pm. case No. 87/1997. All the papers show that on 13/02/1997 after his complaint and filing of the bail application, accused Mulchand was arrested at 5 pm. 15. Considered the circumstances The bail application Ex.-D/29 may have been filed within the court time i.e. upto 5 pm. Similarly, complaint Ex.-D/30 made to Superintendent of Police, Mandsaur was sent by UPC which was sent on 13/02/1997 within office time i.e. before 5 pm. Hence it cannot be denied that after filing of such application, accused Mulchand was arrested at 5 pm vide arrest memo Ex.-P/3. 16. The arguments of the prosecution is baseless that the bail application of accused Mulchand is not signed by himself. As per the law, it is not necessary that the anticipatory bail application must be signed by the applicant. The complaint made to Superintendent of Police, Mandsaur Ex.-D/30 has been signed by Mulchand. There is no explanation that if at 1 pm on 13/02/1997 vide seizure memo Ex.-P/2. Rs. 1,57,000/- was seized from Mulchand and the narcotic people were knowing that this money was advanced to the accused for the purchase of opium then why accused Mulchand was not arrested at the same time. Why he was arrested at 5 pm on 13/02/1997. This creates doubts about genuineness of the proceedings taken up by the Investigating Officer, hence the appellant Mulchand is entitled for benefit of doubt. 17. So far as the objections that Mulchand explained that this money was received from sale of agriculture land and from accounts of his factory is concerned, this fact is proved. Ex.-D/24 the sale letter dated 10/02/1997 which shows that Mulchand had sold his tractor bearing registration No. M.P. 14-3524 for Rs. 1,75,000/- on 10/02/1997 and received Rs. 1,21,000/- on the same date. This fact was proved from the statement of Govindprasad DW-3 also. Ex.-D/25 to Ex.-D/28 shows that accused Mulchand is the owner of the Patidar Slate Pencil Works. On 08/02/1997, the sale of his factory was of Rs. 52,500/- vide Ex.-P/28. The receipt Ex.-D/25 shows the sale of Rs. 30,000/- on 02/01/1997 and Ex.-D/26 shows the sale of Rs. 48,000/- on 15/01/1997 and Ex.-D/27 shows the sale of Rs. 64,000/- on 25/01/1997. Kailash DW-3 who is the son of Mulchand has proved this fact. In this way, it is not impossible that he will be having Rs. 50,000/- to 60,000/- cash at his house. 30,000/- on 02/01/1997 and Ex.-D/26 shows the sale of Rs. 48,000/- on 15/01/1997 and Ex.-D/27 shows the sale of Rs. 64,000/- on 25/01/1997. Kailash DW-3 who is the son of Mulchand has proved this fact. In this way, it is not impossible that he will be having Rs. 50,000/- to 60,000/- cash at his house. In this way, possession of Rs. 1,57,000/- at the house of Mulchand was not such act, which could not be disbelieved looking to the status of Mulchand. It is pertinent to note as has been discussed above that on 07/02/1997, Sunderlal did not disclose the fact that he advanced money of Rs. 1,60,000/- to Mulchand for the purchase of 30 kg opium. That was only on 12/02/1997 on the second statement, this fact was disclosed and the seizure of Rs. 1,57,000/- was made on 13/02/1997, while according to the defence, Rs. 1,57,000/- was seized by the narcotic people illegally in the night of 11/02/1997 and not deposited it in the malkhana and after complaint of Mulchand, its recovery was shown on 13/02/1997. All these circumstances creates suspicion about the recovery of Rs. 1,57,000/- and creates doubts about the prosecution story. 18. Admittedly, accused Sunderlal was in the custody of Narcotic department since 07/02/1997, hence his statement on 12/02/1997 was under the custody. There is no statement of Sunderlal with respect to his economic status and there is no information that from where he received Rs. 1,57,000/- and what was the details of it which he gave to Mulchand. There is no identification of the prosecution witnesses in this respect that the seized money was same which were delivered by Sunderlal. 19. According to the law laid down in the case of U.O.I. v. Balmukund and Ors. 2009 Cri.L.J. 2407 it has been held: Para- 25. Section 67 of the Act reads as under: 67 - Power to call for information etc. 19. According to the law laid down in the case of U.O.I. v. Balmukund and Ors. 2009 Cri.L.J. 2407 it has been held: Para- 25. Section 67 of the Act reads as under: 67 - Power to call for information etc. Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may during the course of any enquiry in connection with the contravention of any provisions of this Act- (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case Para-26. How and at what point of time, the said provisions was invoked is not known. The situation in which such purported statements have been made cannot also be lost sight of. The purported raid was conducted early in the morning. A large number of police officers including high ranking officers were present. Search and seizure had been effected. According to the prosecution, each of the respondent Nos. 1 and 2 were found to be in possession of 10 kg of narcotics. No information was sought for from them. It is doubtful whether they had made such statements on the road itself. Pare-27. Exhibits 20 and 21 categorically show that they were interrogated. If they were interrogated while they were in custody. It cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken. Pare-29. The court while weighing the evidentiary value of such a statement cannot lose sight of ground realities. Circumstances attendant to making of such statement should, in our considered opinion, be taken into consideration. Para-31. Pare-29. The court while weighing the evidentiary value of such a statement cannot lose sight of ground realities. Circumstances attendant to making of such statement should, in our considered opinion, be taken into consideration. Para-31. Where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provisions for grant of bail, scrupulous compliance of the statutory provisions must be insisted upon. While considering a case of present nature where two persons may barely read and write Hindi are said to have been used as carrier containing material of only 1.68% of narcotic, a conviction, in our opinion, should not be based merely on the basis of a statement made under Section 67 of the act without any independent corroboration particularly in view of the fact that such statements have been retracted. 20. Under these circumstances, the second statement of Sunderlal on 12/02/1997 is doubtful and not reliable. The recovery of Rs. 1,57,000/- from the house of Mulchand has not been proved and is suspicious and it has also not been proved that Rs. 1,60,000/- was received by Mulchand from the accused Sunderlal. 21 Therefore, on the basis of the above discussions, I am of the view that the conviction and sentence of the appellants cannot be sustained, hence this appeal deserves to be allowed. 22. Accordingly, this appeal is allowed and the appellants Sunderlal and Shivlal are acquitted from the charges under Sections 8/ 18(b) and 8/ 21(c) of the NDPS Act and appellant Mulchand is acquitted from the charges under Sections 8/29(18-b) and /29(21-c) of the NDPS Act. Appellants Sunderlal and Shivlal are in jail; they be released, if not required in any other case. The bail bonds of appellant Mulchand are hereby discharged. The fine amount, if any deposited by the appellants, be returned to them.