JUDGMENT Mr. M. Jeyapaul, J.: - This shall dispose of Criminal Appeal Nos. 631-DB and 694-DB of 2006 as the same have arisen out of same judgment. 2. Accused, Neeraj Kumar and Manoj Kumar, were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the 1985 Act’) and each of the two was sentenced to undergo rigorous imprisonment of 12 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. Accused, Neeraj Kumar has preferred Criminal Appeal No. 631-DB of 2006 while accused Manoj Kumar has filed Criminal Appeal No. 694-DB of 2006. 3. The brief case of the prosecution is that on 9.1.2005, PW-7 SI Satpal Singh along with PW-5 ASI Prem Singh and other police officials proceeded towards Phoosgarh road for detection of crime. By then, he received a secret information at about 4.45 PM that the accused Neeraj Kumar and Manoj Kumar and one Hariom Pandit who was declared a proclaimed offender, were engaged in the process of transporting poppy straw in a plot near New Bal Bharti Public School, R.K.Puram, Karnal. Based on such information, PW-7 sent a ruqa, Exhibit P-9, to the police station. A formal FIR came to be registered based upon ruqa sent by PW-7. One Udaivir Singh was also associated for the purpose of raid. PW-5 and PW-7 along with other police officials then proceeded to the said spot referred by the informer. Three young persons were found present there. Accused Neeraj Kumar was found lifting one of the bags lying over there. On seeing the police party, except accused Neeraj Kumar, the other two accused persons ran away, out of whom one was Manoj Kumar accused. 9 bags were found lying at the spot. As per the choice and preference of accused Neeraj Kumar, PW-6 DSP Kirat Pal Singh was associated for the purpose of search and seizure. In his presence, all 9 bags were checked and the same were found containing poppy straw. Two samples of 100 grams from each of the 9 bags were separated. The remaining quantity in each of the bags weighed between 28.800 kgs. to 33.800 kgs. The total weight of the bags weighed 285 kgs. The samples and the residue were converted into separate parcels. Two samples of 100 grams from each of the 9 bags were separated. The remaining quantity in each of the bags weighed between 28.800 kgs. to 33.800 kgs. The total weight of the bags weighed 285 kgs. The samples and the residue were converted into separate parcels. They were properly sealed with the seal of PW-6 DSP Kirat Pal Singh and PW-7 SI Satpal Singh. PW-6 kept his seal with him after use whereas PW-7 handed over the seal, after use, to PW-5 ASI Prem Singh. Accused Neeraj Kumar was arrested. The case property along with the accused was produced before PW-4 Inspector Hari Kailash who was the Station House Officer of Police Station Sadar, Karnal. He having affixed his seal over the samples and the remaining quantity of the contraband, deposited the same in the Malkhana. Accused, Neeraj Kumar, was remanded to judicial custody. On 14.1.2005, PW-7 having received secret information about the movement of accused Manoj Kumar, proceeded towards Subzi Mandi (Vegetable Market), Karnal, and arrested him from there vide arrest memo. Exhibit P-16. He too was remanded to judicial custody. 4. PW-1 Constable Rishi Parkash delivered the special report to the learned Additional Chief Judicial Magistrate, Karnal, at about 8.45 PM on 9.1.2005. PW-2 MHC Shingara Ram deposed that the case property was in fact deposited in the Malkhana on 9.1.2005 itself by PW-4 Inspector Hari Kailash. The case property which was taken out for the purpose of production before the learned Additional Chief Judicial Magistrate, was redeposited in the Malkhana on the same day at about 5 PM. PW-3 Constable Abhey Singh took the case property to Forensic Science Laboratory, Madhuban, Karnal, on 11.1.2005 but the same was returned by the said Laboratory for some compliance. The case property was again entrusted by PW-3 to the Forensic Science Laboratory on the next day, i.e. 12.1.2005. The FSL’s report would read that the sample sent for examination was nothing but poppy straw. PW-7 laid final report as against the accused for an offence under Section 15 of the 1985 Act. 5. On the other side, accused Neeraj Kumar has set up a plea in his statement under Section 313, Code of Criminal Procedure, that he was arrested from his flour mill and was later on implicated in the present false case. PW-7 laid final report as against the accused for an offence under Section 15 of the 1985 Act. 5. On the other side, accused Neeraj Kumar has set up a plea in his statement under Section 313, Code of Criminal Procedure, that he was arrested from his flour mill and was later on implicated in the present false case. Accused Manoj Kumar in his statement under Section 313 Cr.P.C. has contended that he was arrested from his house and thereafter, falsely implicated in the instant case. 6. The independent witness, Udaivir Singh, allegedly associated by PW-7 for the purpose of raid, was examined as DW-1. He has come out with a version supporting the defence plea that nothing was recovered in his presence. 7. Learned Trial Court having adverted to the above material and the evidence adduced before it, recorded a judgment of conviction as against the accused. 8. Learned counsel appearing on behalf of both the appellantsaccused would submit that the conscious possession of contraband was not established by the prosecution. Trial Court failed to note that accused Manoj Kumar was not apprehended at the spot; therefore, no conscious possession can be attributed to him. There are material contradictions in the evidence of PW-5 and PW-7. The only independent witness, namely, Udaivir Singh, was not examined by the prosecution whereas he was examined as DW-1 on the side of the defence. He has completely damaged the version of the prosecution. The ownership of the land was not investigated into by PW-7. The very fact that the seal after use was handed over by PW-7 to PW-5, when the independent witness was very much present, would throw doubt on the case of the prosecution. Therefore, he submits that the accused are entitled to acquittal. 9. Per contra, Mr. G.S. Sandhu, learned Assistant Advocate General, Haryana, appearing on behalf of the State, would submit that specific secret information was received by PW-7 to the effect that these two accused along with another accused who was declared proclaimed offender were engaged in transportation of the contraband. The accused, therefore, cannot set up a plea that conscious possession was not established. Inasmuch as the seal was found intact by the Chemical Examiner, entrustment of the seal after use by PW-7 to PW-5 does not go to the root of the case. The accused, therefore, cannot set up a plea that conscious possession was not established. Inasmuch as the seal was found intact by the Chemical Examiner, entrustment of the seal after use by PW-7 to PW-5 does not go to the root of the case. Therefore, it is his submission that the trial Court has rightly recorded a judgment of conviction as against these two accused. 10. The evidence of PW-5 and PW-7 would go to establish that PW-7 in fact received a specific secret information that the two abovenamed accused along with the absconding accused were engaged in transportation and sale of poppy husk. Accused Neeraj Kumar was found lifting one of the bags. Of course, there is no consistent version from the side of the prosecution as to whether the other two accused, namely, Manoj Kumar and Hariom Pandit, were also lifting the bags. 11. The conscious possession could be proved effectively by the prosecution only from the circumstances established in a case. In the instant case, the evidence of PW-5 and PW-7 would go to show that a specific information about the involvement of accused Neeraj Kumar in transportation of poppy husk, was received. He was also found lifting one of the bags which contained poppy husk. He was also arrested at the spot and produced later on before the learned Judicial Magistrate for remand. Under such circumstances, it can be safely inferred that accused Neeraj Kumar was in conscious possession of poppy husk. Inasmuch as, PW-7 was engaged in tracking down the accused, based upon the secret information he received, he had chosen not to investigate as to who actually was the owner of the land. The failure to make investigation so as to the ownership of the land where the poppy husk was found, does not cause any dent in the case of the prosecution. 12. Learned counsel for the appellants placed reliance upon a decision of this Court in Sukhdev Singh alias Sukha v. State of Punjab, 2006(1) RCR (Criminal) 4, wherein it has been observed as follows:- “ 12. xxx xxx xxx. The police did not make any investigation as to how bags of poppy husk were transported to the place of recovery. They also have not adduced any evidence to show the ownership of the poppy husk. xxx xxx xxx. The police did not make any investigation as to how bags of poppy husk were transported to the place of recovery. They also have not adduced any evidence to show the ownership of the poppy husk. The presence of the appellant at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. The police, in all fairness, should have conducted further investigation to prove that the appellant was really in possession of these bags. The failure to give any explanation by the appellant for beig present on that place itself does not prove that he was in possession of these articles. xxx xxx xxx.” Sukhdev Singh @ Sukha’s case (supra) was the one where chance recovery was made by the Investigating Officer and was not based upon any specific secret information as to the involvement of the accused. On seeing the police party, accused in that case, made an attempt to conceal himself by lying down on the bags. Under such circumstances, this Court had made the afore-said observation. At any rate, the said observation cannot be construed as a ratio laid down by this Court. Even otherwise, the facts of this case are distinguishable. Therefore, the above observations will not apply to the facts and circumstances of this case. 13. This Court in State of Punjab v. Nachhattar Singh @ Bania 2007(3) RCR (Criminal) 1040, has laid down as follows:- “9. Conscious possession is the core ingredient to be established before the accused is subjected to punishment under this Act. It is well settled, as held in Syed Mohd. Syed Umer Syed and others v. State of Gujarat, 1995(2) RCR(Criminal) 388: JT 1995(3) SC 489 that unlawful possession is sine qua non for conviction under the Act and that fact has to be established by the prosecution beyond reasonable doubt. Though possession has not been defined in the Act but has been judicially construed to be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity of the object. There are two essential elements of possession, firstly, the corups – the element of physical control and secondly, the animus or intent with which such control is exercised. There are two essential elements of possession, firstly, the corups – the element of physical control and secondly, the animus or intent with which such control is exercised. It is for the prosecution to establish that the accused was found in conscious and intelligent possession of the contraband. In the instant case, it is evident that the respondent was sitting on plastic bags, in the pits, near the bridge of canal minor. This is not suffice to prove conscious possession. Merely by sitting on the bags, in absence of proof of anything more, does not infer that he was in conscious possession of those bags. The investigating agency had not tried to ascertain whether the bags containing poppy husk were belonging to the accused or not ?. In a way, it had not adduced any evidence to show the ownership of poppy husk. There was no investigation as to how those bags of poppy husk were transported to the place of recovery. Moreover, no efforts had been made to trace out the origin of contraband. The police should have conducted further investigation to prove that the respondent was really in conscious possession of those bags. There is nothing to establish that the place from where the poppy husk was recovered was belonging to the respondent, rather, admittedly, the place of recovery was a Government place, feasible and accessible to general public. In State of Punjab v. Balkar Singh and another, 2004 SCC (Crl.) 838, in the similar circumstances, when the accused were found sitting on the bag whereof poppy husk was recovered, considering the factum of absence of any proof with regard to ownership of that contraband, it was held that, in absence of any satisfactory explanation by the accused for being present on that place, does not prove that they were in conscious possession of those contrabands. Therefore, in the light of this evidence, the learned trial Court has rightly held that the prosecution has failed to prove conscious possession of the contraband. “ The above observations also would not apply to the facts of the present case inasmuch as accused Neeraj Kujar was virtually found lifting one of the bags of the contraband and he was found at the exact spot, referred to by the informer, with the contraband. 14. “ The above observations also would not apply to the facts of the present case inasmuch as accused Neeraj Kujar was virtually found lifting one of the bags of the contraband and he was found at the exact spot, referred to by the informer, with the contraband. 14. There is some minor inconsistency in the evidence of PW-5 and PW-7, as pointed out by the learned counsel for the appellants. PW-5 would depose that all the three accused were found running in different directions and one of the accused, namely, Neeraj Kumar, was apprehended whereas PW-7 would state that accused Neeraj Kumar who made an attempt to run away, was apprehended. Such a minor inconsistency in the evidence of these witnesses who were examined after a lapse of about one year, is found quite natural. At any rate, such an inconsistent version of PW-5 and PW-7 is not found to be a material inconsistency who would go to damage the case of the prosecution. 15. The independent witness, namely, Udaivir Singh, was not examined on the side of the prosecution for the simple reason that he was won over by the accused. The very fact that the said independent witness, Udaivir Singh, has been examined by the defence to support the version of the accused, would go to establish that in fact, he was won over. This Udaivir Singh while appearing as DW-1 has gone to the extent of disputing his signatures found on Exhibit P8, i.e. recovery-memo. prepared by PW-7 in the presence of PW-5. PW-7 has come out with an explanation that he chose not to entrust the seal after use to the independent witness, Udairvir Singh, for the simple reason that the independent witnesses were habituated to turn hostile in narcotic cases. Such an explanation given by PW-7 cannot be simply brushed aside. At any rate, we find that the samples as well as the remaining quantity of the contraband recovered at the spot, were first deposited in the police Malkhana and after being produced before the learned Judicial Magistrate, were redeposited in the Malkhana. Without much delay, the samples had been deposited through PW-3 Constable Abhey Singh before the Forensic Science Laboratory. At any rate, we find that the samples as well as the remaining quantity of the contraband recovered at the spot, were first deposited in the police Malkhana and after being produced before the learned Judicial Magistrate, were redeposited in the Malkhana. Without much delay, the samples had been deposited through PW-3 Constable Abhey Singh before the Forensic Science Laboratory. The Laboratory in its normal course had returned the samples for certain reasons but the return was duly complied with and the samples were again entrusted to the Laboratory for chemical examination on 12.1.2005 itself. 16. The FSL’s report, Exhibit P-1, would go to establish that the seals found on the samples were intact and they did tally with the specimen seal forwarded to it. In the above circumstances, we find that there was no scope for the Investigating Agency to tamper with the samples. The Chemical Examiner’s report would go to establish that the sample sent for examination was nothing but poppy straw. 17. Learned counsel for the appellants brought to the notice of the Court that there was some mild correction of the date in the ruqa sent by PW-7. On a close scrutiny of the correction found in the ruqa, we find that even before the date was fully scribed, the correction was made by the Investigating Officer. We do not find that the date was first inscribed and thereafter it was altered. Therefore, the submission by the learned counsel for the appellants that the first information report was ante-dated does not carry any weight. 18. PW-6 DSP Kirat Pal Singh has deposed that the seals used by him and the Investigating Officer were of square shape whereas PW-7 SI Satpal Singh has spoken to the fact that the seals used by both of them were in the shape of a ring. The fact remains that PW-6 and PW-7 were examined before the Court after a lapse of one long year. Under such circumstances, it may not be possible for them to keep it in memory even the shape of the seal used by them. At any rate, we find that the seal impression was sent along with the samples and the seal found on the samples did tally with the seal impression sent for comparison, as per report of the Chemical Examiner. At any rate, we find that the seal impression was sent along with the samples and the seal found on the samples did tally with the seal impression sent for comparison, as per report of the Chemical Examiner. Therefore, such a variation in the testimony of PW-6 and PW-7 would not create any doubt in the case of the prosecution. 19. We find that the prosecution has established beyond reasonable doubt that accused Neeraj Kumar was found in conscious possession of the contraband. Inasmuch as accused Manoj Kumar was not found lifting any of the bags of contraband and was also not arrested at the scene of occurrence, we genuinely doubt the conscious possession of contraband attributed to accused Manoj Kumar. The benefit of doubt, thus, will have to be given to accused Manoj Kumar. 20. We also find that the sentence imposed by the trial Court upon accused Neeraj Kumar is not very much proportionate to the quantity of contraband recovered from him. Therefore, we have proposed to show some leniency in the matter of sentence awarded to accused Neeraj Kumar by the trial Court. 21. In view thereof, the judgment of conviction passed by the trial Court as against accused Neeraj Kumar stands confirmed but the sentence imposed upon him is modified to the extent that he shall undergo rigorous imprisonment for 10 years and shall pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. The custody of Accused Neeraj Kumar during the period of trial shall be set off as against the sentence awarded to him. 22. With the above modification in the matter of sentence, Criminal Appeal No. 631-DB of 2006 filed by Neeraj Kumar, accused, stands dismissed, whereas Criminal Appeal No. 694-DB of 2006 preferred by Manoj Kumar, accused, is allowed, the judgment of conviction and sentence imposed upon Accused Manoj Kumar by the trial Court is set aside and he stands acquitted of the charge. The bail bond executed by accused Manoj Kumar shall stand discharged. --------------