JUDGMENT I.S. Shrivastava, J. 1. These appeals have been preferred under Section 374 of the Code of Criminal Procedure by the Appellants Mohd. Hussain and Shabbir being aggrieved by the judgment dated 17/03/2006 passed by the Court of Shri Jaiswantsingh Kshtriya, Special Judge (under NDPS Act), Mandsaur in Special Sessions Case No. 17/2004, by which the Appellant Mohd Hussain has been convicted under Sections 8/ 21(c) of the Narcotic Drugs and Psychotropic Substances Act (in short 'the NDPS Act') and sentenced to undergo rigorous imprisonment of twelve years with fine of Rs. 1,00,000/-; under Sections 8/ 18(b) of the NDPS Act, twelve years rigorous imprisonment with fine of Rs. 1,00,000/-; under Sections 8/ 21(c) and 8/ 18(b) read with Section 29 of the NDPS Act, twelve years rigorous imprisonment with fine of Rs. 1,00,000/- respectively and in default of payment of fine to undergo further rigorous imprisonment of two years respectively on each count. As well as Appellant Shabbir has been convicted under Sections 8/ 21(c) of the NDPS Act and sentenced to undergo rigorous imprisonment of twelve years with fine of Rs. 1,00,000/-; under Sections 8/ 25 of the NDPS Act, ten years rigorous imprisonment with fine of Rs. 1,00,000/-; under Sections 8/ 21(c) and 8/ 18(b) read with Section 29 of the NDPS Act, twelve years rigorous imprisonment with fine of Rs. 1,00,000/- respectively and in default of payment of fine to undergo further rigorous imprisonment of two years respectively on each count. 2. According to the prosecution story, on 25/03/2004, Shri J.S. Parmar, A.S.I. of police chowki, Daloda received an information from the Station In-charge of police station - Bhavgarh that accused Shabbir was standing with smack below a tree at Pragati Square to deliver it to some smuggler. Hence, this information was entered in Rojnamcha. Independent witnesses Dharmendrasingh and Pawansingh were called and they were apprised with the information of the informer; panchanama about non-obtaining of the search warrant was prepared and his superior officers were informed. Thereafter, Shri J.S. Parmar along with police force and independent witnesses reached the Pragati Square and found accused Shabbir waiting there. Hence, this information was entered in Rojnamcha. Independent witnesses Dharmendrasingh and Pawansingh were called and they were apprised with the information of the informer; panchanama about non-obtaining of the search warrant was prepared and his superior officers were informed. Thereafter, Shri J.S. Parmar along with police force and independent witnesses reached the Pragati Square and found accused Shabbir waiting there. After verification of his name, he was apprised with the information of the informer and after obtaining his due consent, on search of his person, a polythine bag kept inside the belt of the right side of his pant was recovered which contained 500 grams smack, out of which, two samples each of 5 grams were prepared and marked as Article A/1 and A/2 and the remaining bulk quantity was packed and marked as Article-A. All the packets were seized and sealed on the spot and after preparation of other panchanamas, accused Shabbir was arrested. On interrogation that from where he received the smack, he informed that he had prepared the smack with the help of his companion Mohd. Hussain and Ibrahim at the house situated near his well, where at that time Mohd Hussain and Ibrahim were preparing smack, hence memo of this information was prepared and SDO (P), Sitamhow was informed on telephone. Thereafter, accused Shabbir took the raid party to the house situated at his well. In that house, two persons were present. There a stove was burning and three tubs containing solution of opium were being heated and in polythene bag 2 kg powder was found. Both the persons told their names to be Mohd Hussain and Ibrahim. They were apprised with their rights under Section 50 of the NDPS Act and after obtaining their due consent, their personal search was taken, but nothing was recovered. Thereafter, on search of the room, in polythene bag, 2 kg powder was found, which was identified as smack and the liquid in the tubs was found to be solution of opium. The weight of smack was 2 kg, out of which two samples each of 5 grams were prepared and marked as Article-B/1, B/2 and remaining bulk quantity was packed and marked as Article-B. The liquid of opium in the tubs was made homogeneous. The weight of smack was 2 kg, out of which two samples each of 5 grams were prepared and marked as Article-B/1, B/2 and remaining bulk quantity was packed and marked as Article-B. The liquid of opium in the tubs was made homogeneous. On weightment, it was found to be 45 kg/litres, out of which two samples each of 30 grams were prepared and the liquid was stored in three plastic cane each of 15 litres. The samples and cane were marked as C, C/1 and C/2. All the samples and canes were sealed and seized on the spot; other panchanamas were prepared and the accused persons were arrested. Thereafter, the raid party returned to police station, where all the Articles along with 11 samples were handed over to HCM and the report was lodged at Crime No. 63/2004 at police station - Bhavgarh. During investigation, samples A/1, B/1 and C/1 were sent to FSL, Indore; by the report of which, presence of morphine was confirmed in the said samples along with the opium alkaloid. After completion of investigation, challan was filed against the accused Shabbir, Mohd Hussain and Ibrahim. During trial, accused Ibrahim died, hence the proceedings against him was abated and accused Shabbir and Mohd Hussain were found guilty and convicted and sentenced as mentioned herein above. Therefore, this appeal has been preferred by Appellants 3. It has been argued on behalf of the Appellants that there was no evidence that the accused Shabbir was the owner of the house and was in conscious possession of the house situated near his well in the forest. The independent witnesses have not supported the prosecution case. The seizure memo was not proved. The seized bulk quantity of the property and other property were not produced before the Trial Court; only samples Article A/1 B/1 and C/1 were produced in the Court, hence the seizure memo was not proved. The proceedings under Section 52A of the NDPS Act was not proved. As per the FSL report, presence of diacetyl morphine was not confirmed in the samples, hence the appeal be allowed. 4. It has been argued on behalf of the Respondent state that the Appellants have rightly been convicted and sentenced for the heinous offence on the basis of the evidence produced before the Trial Court, hence the appeal being devoid of merit, be dismissed. 5. 4. It has been argued on behalf of the Respondent state that the Appellants have rightly been convicted and sentenced for the heinous offence on the basis of the evidence produced before the Trial Court, hence the appeal being devoid of merit, be dismissed. 5. Considered the arguments and record of the Trial Court perused. 6. As regard to the ownership and conscious possession of the house situated near the well in the forest from where the accused Mohd Hussain and Ibrahim were found with 2 kg smack and solution of opium, no evidence has been produced by the prosecution. The investigating officer Ajay Mishra PW-9 in para 10 has admitted that he did not collect any proof about the survey number of the field and about ownership of the field. He did not prepare any spot map of that place. For this, he has given explanation that it was not the place of incident, but it was pragati square. This is a wrong presumption. The smack was also seized on the information of the accused Shabbir from the room situated near the well, hence it was also the place of incident and it was necessary that the spot map should have been prepared and the survey number of that place and evidence about the ownership should have been collected, but no such evidence was collected, hence it was not proved that the room near the well in the forest was of the ownership of accused Shabbir or Mohd. Hussain and they were in the conscious possession of that place. During investigation, spot map Ex.-P/30 was prepared by the investigating officer and spot map Ex.-P/37 was prepared by Patwari. Both these spot maps are with respect to Pragati square, hence there is no spot map about the place of recovery from the house near the well in the forest. Therefore, the Investigating Officer did not collect the evidence about the place from where the smack and solution of opium were seized. 7. 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. The same view has been taken as under in the case of Ismile Khan v. State of Gujarat 2001 (1) EFR 6. 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. The same view has been taken as under in the case of Ismile Khan v. State of Gujarat 2001 (1) EFR 6. 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. Therefore, there was no evidence that the house near the well in the forest from where the second recovery was made, belonged to the ownership and conscious possession of the Appellants. 8. The seizing officer Shri J.S. Parmar PW-5 conducted the proceedings vide Ex.-P/1 to Ex.-P/22. He prepared seizure memo Ex.-P/18 and Ex-P/19 before the independent witnesses Dharmendrasingh PW-1 and Pawansingh P.W-2. Both these witnesses are hostile and they have not supported the prosecution case. Dharmendrasingh PW-1 has deposed that the police called him on Daloda Police Chowki one year before. There they got his signatures on the papers Ex.-P/1 to Ex.-P/22. Witness Pawansingh was at that time with him. He did not go with police to any place. At that time, he was going and was called on by the police. He has denied the step by step proceedings taken up by the police. In cross-examination, he has deposed that at about 7 - 8 P.M. in the night, he signed all these papers. He has further admitted that previously, he had been witness in 2-3 cases of NDPS Act. In this way, this witness says that he signed all the papers in the night while the proceedings taken up by the seizing officer was in between 11.50 to 17.45 pm till arrest the of Appellants. 9. He has further admitted that previously, he had been witness in 2-3 cases of NDPS Act. In this way, this witness says that he signed all the papers in the night while the proceedings taken up by the seizing officer was in between 11.50 to 17.45 pm till arrest the of Appellants. 9. Witness Pawansingh PW-2 has deposed that two years before, he signed on Ex.-P/1 to Ex.-P/22 at Daloda Police Chowki. At that time, witness Dharmendrasingh PW-1 was with him. No panchanama was prepared before him. He did not go with the police officer Shri J.S. Parmar to any place. In cross-examination, he has denied the step by step proceedings taken up by the police. In cross-examination, he has admitted that in the night at about 7-8 pm, he signed all these papers. His Pan-shop was situated at Daloda Police Chowki. Previously, he has been witness in NDPS cases. In this way, both these witnesses have not supported the prosecution case. 10. At the time of evidence of Shri J.S. Parmar PW-5, remnant samples A/1 B/1 and C/1 were produced which were marked by the Court as A, B, C. The other samples Articles A/2, B/2 and C/2 and the samples prepared by the Executive Magistrate under Section 52A of the NDPS Act, Articles A/3 A/4, B/3 B/4, C/3 C/4, bulk quantity packets A.B.C. and other seized articles were not produced in the evidence, therefore, in the absence of packets of bulk quantity, it was not proved that the samples A/1 B/1 C/1 and other samples were prepared from the bulk quantity samples. 11. As regard to proceedings under Section 52A of the NDPS Act, the seizing officer Shri J.S. Parmar PW-5 and Ajay Mishra PW-9 have not deposed anything. From papers tabbed with the challan, it reveals that on 19/06/2004, Nayab Tehsildar and Executive Magistrate conducted the proceedings under Section 52A of the NDPS Act and prepared samples A/3 A/4, B/3 B/3 and C/3 C/4 and re-sealed the properties. The photos were not taken up by the Executive Magistrate at that time. These papers did not show that it was prepared at the office of the Executive Magistrate or at the police station. No order-sheet in this respect has been filed. There is no entry in these papers that there was pre-trial disposal of the property. The photos were not taken up by the Executive Magistrate at that time. These papers did not show that it was prepared at the office of the Executive Magistrate or at the police station. No order-sheet in this respect has been filed. There is no entry in these papers that there was pre-trial disposal of the property. Hence the proceedings under Sections 52A of the NDPS Act was not proved. 12. In the case of Ritesh Chakarvarty v. State of M.P. 2007(1) EFR 127 and Bholaram Kushwaha v. State of M.P. 2001(1) EFR 160 it has been held that if the independent witness of the seizure memo has not supported the fact of the seizure, the seizure panchanama is not proved. In the case of 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 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. The 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. 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. The same view has been adopted in the case of Noor Aga v. State of Punjab 2008(IV) AD (SC) 3371 as well as in Laxminarayan v. State of M.P. 2009(2) JLJ 148 . Hence the seizure memo was not proved. 13. Therefore, on the basis of the above discussions, I conclude that it was not proved by the evidence that the house situated near the well in the forest was of the ownership and conscious possession of the Appellants. No evidence in this respect has been produced. The seizure memo and other panchanamas were not proved. The bulk quantity of the property and the remnant samples Ex.-A/2, B/2, C/2 were not produced at the time of the evidence. Therefore, the Appellants were not liable to be convicted and sentenced on the basis of the evidence. Therefore, the appeal deserves to be allowed. 14. Accordingly, these appeals are allowed and the Appellant Shabbir is acquitted from the charges under Sections 8/ 21(c), 8/ 25 and Sections 8/ 21(c) read with Section 8/ 18(b) read with Section 29 of the NDPS Act as well as Appellant Mohd Hussain is acquitted from the charges under Sections 8/ 21(c), 8/ 18(b), 8/ 21(c) read with Section 8/ 18(b) read with Section of the NDPS Act. They be released if not required in any other offence. The fine, if deposited, be returned to them.