Judgment Harbans Lal, J. 1 This judgment shall dispose of Criminal Appeal No. 416 SB of 2005 moved by Satnam Singh, Criminal Appeal No. 436 SB of 2005 filed by Satish Kumar, Criminal Appeal No. 533 SB of 2005 moved by Mithu Singh and Darshan Singh, Criminal Appeal No. 599 SB of 2008 filed by Satnam Singh as having arisen out of the same judgment dated 14.1.2005 passed by the court of learned Judge Special Court, Bathinda whereby he convicted and sentenced Mithu Singh, Darshan Singh and Satish Kumar accused to undergo rigorous imprisonment for 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 six months and also convicted and sentenced the accused Satnam Singh to further undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1.00 lac under Section 15 read with Section 25 of the Act and in default of payment of fine, to further undergo imprisonment for six months and ordered the vehicle Tata Sumo bearing registration No. DL-3CG-815 to be confiscated to the State as per lates. 2 Shortly put, the facts of the prosecution case are that on 5.3.2003 Sub Inspector Harinder Singh amongst other police officials had laid naka on the bridge of drain within the revenue limits of village Malooka. Balbir Singh a public man was also associated in the police party. Around 5 A.M. Tata Sumo bearing registration No. DL-3CG-0815 was intercepted. Meanwhile, the driver of this vehicle escaped. He was identified as Satnam Singh. The remaining accused namely Satish Kumar, Darshan Singh and Mithu Singh were apprehended at the spot. They were apprised of their right to have search in the presence of a Gazetted Officer or Magistrate. They opted to have the same in the presence of a Gazetted Officer. On receipt of message, Balbir Singh DSP came at the spot. The accused reposed confidence in him. On search of Tata Sumo, 5 bags containing poppy husk yielded. From each bag 250 grams of poppy husk was drawn to serve as sample and converted into parcels. The residue of each bag when weighed came to 34 kgs 500 grams which was also made into parcels. The accused reposed confidence in him. On search of Tata Sumo, 5 bags containing poppy husk yielded. From each bag 250 grams of poppy husk was drawn to serve as sample and converted into parcels. The residue of each bag when weighed came to 34 kgs 500 grams which was also made into parcels. These bags as also the sample parcels were sealed with seal HS. The seal after use was entrusted to aforesaid Balbir Singh. The accused were put under arrest. Ruqa was sent to the Police Station, where on its basis formal F.I.R. was registered. After completion of investigation, the charge sheet was laid in the court against the accused Mithu Singh, Darshan Singh and Satish Kumar for their trial. 3 The accused were charged under Section 15 of the Act to which they did not plead guilty and claimed trial. It was on 12.9.2003 that accused Satnam Singh who had fled from the spot was also arrested. On being presented supplementary challan against him, he along-with his co-accused was charged under Section 15 of the Act to which they did not plead guilty and claimed trial. 4 To bring home guilt against the accused, prosecution examined PW-1 D.S.P. Balbir Singh Khaira, PW-2 Constable Sukhwinder Singh, PW- 3 Sub Inspector Harinder Singh Investigator and closed its evidence by tendering the chemical examiners report and by giving up Balbir Singh independent witness as having been won over by the accused and PW Sub Inspector Rajinder Kumar being unnecessary. 5 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. Accused Mithu Singh came up with the following plea:- "I am innocent. We have been falsely implicated in this case. ASI Angrej Singh had obtained Rs. 10,000/- from me as illegal gratification for not planting false case upon me. I have filed a complaint against ASI Angrej Singh in which my co-accused were helping me and on this, at the instance of Angrej Singh, this case has been planted upon us falsely. Satish Kumar was arrested in the presence of Bhajan Singh and Jarnail Singh from his house when nothing was recovered from him. I and my son Darshan Singh were apprehended from our house in the presence of Balour Singh and Anokh Singh, when nothing was recovered from him. Satish Kumar was arrested in the presence of Bhajan Singh and Jarnail Singh from his house when nothing was recovered from him. I and my son Darshan Singh were apprehended from our house in the presence of Balour Singh and Anokh Singh, when nothing was recovered from him. In fact, the recovery of poppy husk was effected from Gurdip Singh, Bahadur Singh of V. Kothaguru and Gurcharan Singh of V. Gumti and later on, they were left free in P.P. Bhagta and I and my co-accused were falsely implicated in this case. Tata Sumo was taken from the house of Satnam Singh, when it was not in working order and it was brought to P.P. Bhagta with a touchin." 6 Accused Darshan Singh, Satish Kumar and Satnam Singh adopted the plea of their accused Mithu Singh. In their defence, they examined DW-1 HC Bhagwant Singh, DW-2 Constable Balwinder Singh, DW-3 Balour Singh, DW-4 Gurbhajan Singh, DW-5 HC Harcharan Singh, DW-6 Naib Singh photographer and closed their defence evidence by tendering Ex. D-34 to Ex. D-36. 7 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 all the four accused as noticed at the outset. Feeling aggrieved therewith, they have preferred these appeals. 8 I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 9 On behalf of the appellants it has been submitted in one voice that Balbir Singh, the alleged eye witness has been given up by the prosecution as the Prosecutor was very much aware of the fact that if he is examined, he shall shatter whole of the prosecution story being stock witness of the police as he has appeared in various other F.I.Rs on behalf of the prosecution which are Ex. D-5 to Ex. D-12. For his non-examination, the appellants have been deprived of their valuable and indefeasible right to cross-examine him. Furthermore, the Investigator did not produce the alleged contraband before any superior officer and kept the same in his own custody. The learned Ilaqa Magistrate had directed the Investigating Officer to deposit the case property in the judicial malkhana, but instead of doing so, he kept the same in his own custody. Furthermore, the Investigator did not produce the alleged contraband before any superior officer and kept the same in his own custody. The learned Ilaqa Magistrate had directed the Investigating Officer to deposit the case property in the judicial malkhana, but instead of doing so, he kept the same in his own custody. The sample parcels were dispatched for chemical analysis after 8 days from the date of the recovery. During this interregnum, the possibility of their contents being tampered with cannot be ruled out. The Chemical Examiner on 7.3.2003, as alleged by the Investigator, had returned the sample parcels with certain objections, but there is no entry in Register No. 19 with regard to their redeposit in the malkhana. The MHC with whom the case property was deposited has not been examined. There is nothing on the record to show that the sample parcels were in the safe custody before these were forwarded to the Chemical Examiner for analysis. Satnam Singh appellant was not arrested at the spot. His identity is rendered highly doubtful for the reason that he was not made to join the test identification parade. This apart, neither appellant has been asked any question in his statement under Section 313 of Cr.P.C. that he was in conscious possession of poppy husk. That being so, the presumption arising under Section 35 or 54 of the Act is not available to the prosecution case. The mandatory provisions of the Act have also been given a go bye. 10 To overcome these submissions, the learned State Counsel maintained that on evaluating the prosecution evidence with great care and caution, it transpires that the recovery of poppy husk bags from the appellants stand fully established. Such a huge quantity by no stretch of speculation could be planted upon the appellants. 11 I have given a deep and thoughtful consideration to the rival contentions. 12 First of all, I take up the case of Satnam Singh appellant. To be determined herein is as to whether his identity has been established by the prosecution. Under the stress of cross-examination PW-3 Sub Inspector Harinder Singh investigator has deposed that " I knew earlier to accused Satnam Singh. I did not mention in the ruqa Ex. PU that I was known to the accused prior to the incident. To be determined herein is as to whether his identity has been established by the prosecution. Under the stress of cross-examination PW-3 Sub Inspector Harinder Singh investigator has deposed that " I knew earlier to accused Satnam Singh. I did not mention in the ruqa Ex. PU that I was known to the accused prior to the incident. Similarly this fact is not mentioned in the memos prepared at the spot." It is beyond comprehension as to why the fact that Satnam Singh appellant was known to this witness earlier was not mentioned in the ruqa or other documents prepared at the spot; if this witness was known to this appellant previously. This gives an inkling that he has made improvement in his statement in material particulars to the effect that this appellant was known to him prior to this recovery. Furthermore, he has no where stated that this appellant was either arrested by him in any other case prior to this recovery or he had dealt with any other case in which this appellant was involved. Admittedly, the test identification parade was also not carried out. The necessity for holding an identification can arise only when the accused are not previously known to the witnesses. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. It becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. 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 fleeting 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 as ruled by the Supreme Court in re: Heera & Another v. State of Rajasthan, 2007(3) R.A.J. 615 : 2007(3) Recent Criminal Reports (Criminal) 517. In the instant one, the recovery took place at 5.00 A.M. though in the month of March, nonetheless, while fleeing only back side of the appellant Satnam Singh would have been seen by the Investigating Officer. In the instant one, the recovery took place at 5.00 A.M. though in the month of March, nonetheless, while fleeing only back side of the appellant Satnam Singh would have been seen by the Investigating Officer. It is not in his evidence that he had seen the face of the appellant nor it could be so for the reason that if this witness as well as this appellant had come face to face in that eventuality the latter by all probabilities would have been intercepted. On appraisal of investigators evidence, it transpires that he was a stranger to Satnam Singh appellant. If it is assumed for a little while that he had just a fleeting glimpse, despite that it cannot be said with absolute certitude that he had become familiar with his identifying features or physical description. Thus, there can be no escape from the finding that the prosecution has dismally failed to pin down the identity of this appellant. 13 In Kashmir Singh v. State of Punjab, 2006(2) Apex Criminal 24 : 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. 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. 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 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 State of Punjab v. Hari Singh and Others, 2009(2) R.A.J. 175 : 2009(2) Recent Criminal Reports (Criminal) 143 it has been observed by the Apex Court as under :- 15 In Ritesh Chakarvarti v. State ofMadhya Pradesh 2006(3) Apex Criminal 406 : 2006(4) Recent Criminal Reports (Criminal) 480, the opium weighing 1.300 kgs was recovered. In paragraph 35 of the judgment it has been observed that "Furthermore, how the accused was identified is not known. How he could be singled out has not been explained." 16 In case Avtar Singh v. State of Punjab, 2002(4) Recent Criminal Reports (Criminal) ISO, the accused were travelling in a truck belonging to accused No. 5 in the small hours of 7.8.1989. The vehicle was carrying 16 bags of poppy husk being driven by Balbir Chand appellant No. 3. One person, who was sitting in the front seat by the side of the driver and another person sitting on the back, side of the truck ran away leaving the vehicle.The Apex Court held that "A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under Section 313 Cr.P.C. not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under Section 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of the Evidence Act, nor is it after to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which were being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial Court invoked the presumption under Section 54 of the Act without addressing itself to the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspect pointed out above were neither adverted to, nor taken into account by the trial Court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal." 17 In Raj Kumar v. State of Punjab, 2005(1) Recent Criminal Reports(Criminal) 70 a bag containing opium lying between Raj Kumar and Hawa Singhs seat was recovered. The Division Bench of this Court held that both the accused have been charged for possession of opium, but neither of them had been asked any question in their statements under Section 313 Cr.P.C. that he was in conscious possession of opium. Therefore, neither presumption under Section 35, nor the presumption under Section 54 of the Act would be attracted. The Division Bench of this Court held that both the accused have been charged for possession of opium, but neither of them had been asked any question in their statements under Section 313 Cr.P.C. that he was in conscious possession of opium. Therefore, neither presumption under Section 35, nor the presumption under Section 54 of the Act would be attracted. 18 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 to the appellants, while they were being examined under Section 313 of Cr.P.C. To the utter dismay of the prosecution, a glance through their respective statutory statements would reveal that it has no where been put to them that they were in conscious possession of the recovered poppy husk bags. Thus, 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. 19 It is in the evidence of the Investigator that seal after use was handed over to the independent witness Balbir Singh who has been given up on the pretext of his having been won over by the accused. In re : Satnam Singh v. State of Punjab 1996(3) RCR (Criminal) 369 (P&H), " has been held that "when the prosecution alleges that a material witness has been won over by the accused, it is still necessary that such witness must be produced and examined at the trial to reveal the truth, especially when the seal is allegedly entrusted to him after use." An identical view has been taken by the Division Bench of this Court in re : state of Punjab v. Surjit Singh 2008(1) RCR(Criminal) 266. Thus the non production of Balbir Singh at the trial goes against the prosecution. 20 As alleged, the recovery in this case was effected within the view of Balbir Singh Khaira, D.S.P. PW-1. Needless to say that the Investigating Officer is Sub Inspector Harinder Singh who on the day of the recovery was posted as S.H.O. Police Station Dayalpura. Thus the non production of Balbir Singh at the trial goes against the prosecution. 20 As alleged, the recovery in this case was effected within the view of Balbir Singh Khaira, D.S.P. PW-1. Needless to say that the Investigating Officer is Sub Inspector Harinder Singh who on the day of the recovery was posted as S.H.O. Police Station Dayalpura. Mark A is F.I.R. No. 81 dated 19.6.2003 which purports to have been registered at Police Station Dayalpura under Section 15 of the Act at the instance of said S.H.O. A meticulous perusal of the contents of this F.I.R. would reveal that same Balbir Singh independent witness has been cited as a recovery witness. Further Mark B is the Photostat copy of F.I.R. No. 46 dated 18.4.2003 registered at Police Station Dayalpura under Section 15 of the Act at the instance of aforesaid S.H.O. In this case also the recovery is shown to have been effected in the presence of said Balbir Singh. Ex. D-5 is F.I.R. No. 81 dated 18.8.2002 registered at Police Station Dayalpura at the instance of ASI Angrej Singh. In this case also, the recovery is shown to have been made within the view of same Balbir Singh son of Hari Singh. In this F.I.R. No. 81 also Balbir Singh Khaira D.S.P. is the recovery witness. Ex. D-7 is the photo copy of F.I.R. No. 52 dated 30.5.2002 registered at the instance of ASI Ajaypal Singh at Police Station Dayalpura. In this case also same Balbir Singh has been kept as independent witness and same Balbir Singh Khaira D.S.P. is the recovery witness. Ex. D-8 is the copy of F.I.R. No. 32 dated 8.4.2002 registered at the instance of ASI Ajaypal Singh of Police Station Dayalpura under Section 15 of the Act. In this F.I.R. also same Balbir Singh has been shown to be the recovery witness. In Ex. D-9 Photostat copy of F.I.R. No. 18 dated 15.2.2003 registered at the instance of Head Constable Jaswant Singh of Police Station Dayalpura under Section 13 of the Gambling Act also same Balbir Singh has been shown to be the witness and same Harinder Pal Singh Sub Inspector S.H.O. Police Station Dayalpura is the Investigator. In Ex. In Ex. D-9 Photostat copy of F.I.R. No. 18 dated 15.2.2003 registered at the instance of Head Constable Jaswant Singh of Police Station Dayalpura under Section 13 of the Gambling Act also same Balbir Singh has been shown to be the witness and same Harinder Pal Singh Sub Inspector S.H.O. Police Station Dayalpura is the Investigator. In Ex. D-ll Photostat copy of F.I.R. No. 29 dated 18.3.2003 under Section 15 of the Act registered at the instance of Harinder Singh Sub Inspector, S.H.O. Police Station Dayalpura also same Balbir Singh has been shown to be the recovery witness. In Ex. D-12 copy of F.I.R. No. 46 dated 18.4.2003 registered at the instance of Sub Inspector Harinder Singh S.H.O. Police Station Dayalpura under Section 15 of the Act again same Balbir Singh is the recovery witness. In this F.I.R. also Balbir Singh Khaira D.S.P. is the recovery witness. Ex. D-34 is the certified copy of the statement of Sub Inspector Harinder Singh recorded in case F.I.R. No. 29 dated 18.3.2002 under Section 15 of the Act registered at Police Station Dayalpura. In this case also same Balbir Singh has been shown to be the recovery witness. This voluminous documentary evidence leave room for doubt that Balbir Singh the so-called independent witness is a stooge or stock witness of the police. It is quite unnatural, unintelligible and inconceivable that at every place of recovery this Balbir Singh would have been present. His ubiquity in all the aforementioned F.I.Rs including the present one go a long way in proving that he was always at the beck and call of the police for the reasons best known to him and he used to sign the papers pertaining to a case merely at the asking of the Investigator. Thus, the working of this Sub Inspector Harinder Singh has to be looked upon with grave suspicion. 21 In consequence of the preceding discussion, all the four appeals are accepted setting aside the impugned judgment/order of sentence as also the order with regard to confiscation of the Tata Sumo bearing registration No.DL-3CG-0815. 22 Since the appeals have been decided, all pending Criminal Miscellaneous also stand disposed of.