Judgment Kanwaljit Singh Ahluwalia, J. 1 Binder Singh son of Lal Singh, appellant, was named as accused in case FIR No. 394 dated 5.9.2002 registered at Police Station Sunam under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as, the Act). He was convicted and sentenced by the trial Court to undergo rigorous imprisonment for two years and six months and to pay a fine of Rs. 1500/- In default of payment of fine, he was to undergo further rigorous imprisonment for four months. Aggrieved against the same, the present appeal has been filed. 2 ASI Sukhchain Singh, Incharge, Police Post Dharamgarh addressed a ruqa to S.H.O., Police Station, Sunam. It was stated therein that he, along with companion police officials, for checking of suspicious persons, was present on the T point of Village Satauj on the embankment of same-nala (drain). One person was sitting over a jute bag. Due to susicion, ASI got stopped the jeep and went to that person. That-person on seeing the police party became nervous and made an attempt to stand. ASI stopped him by raising a voice and apprehended him along with companion police officials. At that time, Ghula Singh son of Kishan Singh came from the side of Village Dharamgarh. He was acquainted with the facts of the case. Thereafter, the accused was interrogated, who disclosed his name as Binder Singh son of Lai Singh. The jute bag was opened. It contained poppy husk. One plastic box (dubba) was lying nearby the jute bag of poppy husk. The accused was given an offer to be searched before a Gazetted Officer or a Magistrate. Accused reposed trust in the Investigating Officer. Thereafter, according to the procedure, samples were drawn and recovery was effected. 3 The above said FIR was investigated. Report under Section 173 Cr.P.C. was submitted. 4 Judge, Special Court, Sangrur charged the appellant for offence under Section 15 of the Act for having in his possession 35= Kgs. of poppy husk. Appellant pleaded not guilty and claimed trial. 5 HC Hans Raj PW1 tendered in evidence his affidavit Ex.PA to prove link evidence. 6 Inspector Sukhdev Singh PW2 stated that ASI Sukhchain Singh had produced before him two sample parcels containing poppy husk of 250 grams each and one bulk parcel containing 35 Kgs. of poppy husk. of poppy husk. Appellant pleaded not guilty and claimed trial. 5 HC Hans Raj PW1 tendered in evidence his affidavit Ex.PA to prove link evidence. 6 Inspector Sukhdev Singh PW2 stated that ASI Sukhchain Singh had produced before him two sample parcels containing poppy husk of 250 grams each and one bulk parcel containing 35 Kgs. of poppy husk. He had sealed the parcels with the seal of SS and had deposited the case property in the Malkhana. 7 ASI Sukhchain Singh appeared as PW5 and deposed regarding search, seizure and recovery of poppy husk. 8 HC Baljinder Singh PW3 who was also a member of the police party corroborated the testimony of PW5. 9 Constable Joginder Singh PW4 tendered in evidence his affidavit Ex.PE to prove the link evidence. 10 Ghula Singh independent witness was given up by the prosecution as won over by the accused. Thereafter, the prosecution closed its evidence. 11 The appellant was examined under Section 313 Cr.P.C. He denied all incriminating circumstances put to him and pleaded his false implication. He gave his version which is as under :- "....Nothing as alleged by the prosecution was recovered from me. I went to village Jakhepal on 3.9.2002 to visit my relative and I was roaming in the village in highly drunken state and was caught by one Chet Singh around mid night. I could not tell my identity due to drunken state and I was handed over to the police of PP Dharamgarh by the Sarpanch of village Jakhepal. I had also a quarrel with the police officials in the presence of other co villagers of Jakhepal and due to that grudge of altercation I was falsely implicated in the present case on 5.9.2002." 12 Chet Singh appeared as DW1 in support of the version projected by the appellant in his statement under Section 313 Cr.P.C. Karnail Singh DW2 was also examined to the same effect. 13 Counsel for the appellant has stated that appellant has undergone ten months of actual sentence out of two years sentence awarded by the trial Court. 14 The following facts emerge for consideration of this Court: 15 The police party when it was moving in a vehicle found the appellant sitting over the jute bag near the embankment of the drain. 14 The following facts emerge for consideration of this Court: 15 The police party when it was moving in a vehicle found the appellant sitting over the jute bag near the embankment of the drain. No evidence had been led that the place where appellant was sitting on the jute bag, was in his possession or belonged to him. On seeing the police party, the appellant had made no attempt to run away. According to the FIR, it is only when the police party reached near him, he stood up and became nervous. From these facts, conscious possession of the appellant cannot be inferred. No attempt was made by the police party to find out, as to where from the poppy husk was transported. 16 In State of Punjab v. Balkar Singh, 2004(3) SCC 582, Honble Apex Court held as under:- "3. We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimony of PW1 Balbir Singh and PW2 ASI Jarnail Singh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy, husk by the respondents. We do not find any infirmity in the judgment passed by the High Court." 17 A Full Bench of this Court in Kashmir Singh v. State of Punjab, 2006(2) R.C.R. (Criminal) 477, held that a specific question ought to be asked to the accused that he was in conscious possession and knew that recovered good was a contraband. No such question was asked. In Kashmir Singhs case (supra), it was held as under :- "19. For the above reasons, we would answer the question raised by stating that no presumption under Sections 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 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." 18 In these circumstances, this Court is of the view that when the appellant was sitting over the jute bag, until it is proved that he knew it well that there was poppy husk stored in the bag, no conscious possession can be inferred. Further more, in these cases antecedents of the accused assume importance. Prosecution has made no attempt to show that appellant is engaged in the trading of poppy husk. In the present case, recovery of 35 Kgs. of poppy husk is a non commercial quantity. Therefore, as a matter of abundant caution, the benefit of doubt is granted to the appellant. Hence, the present appeal is accepted. The conviction and sentence awarded to the appellant is set aside. In the present case, recovery of 35 Kgs. of poppy husk is a non commercial quantity. Therefore, as a matter of abundant caution, the benefit of doubt is granted to the appellant. Hence, the present appeal is accepted. The conviction and sentence awarded to the appellant is set aside. The appellant is acquitted of the charge.