JUDGMENT 1. - The instant appeal has been preferred by the appellant challenging the judgment dated 15.4.1989 passed by the learned Sessions Judge, Sri Ganganagar in Sessions Case No. 42/87 convicting the appellant for the offence under Section 8/18 of the N.D.P.S. Act and sentencing him to 10 years R.I. And a fine of Rs. One Lakh, in default of payment of fine to further undergo six months R.I. 2. A complaint was filed by one K.L. Kohli, Inspector of the Customs and Central Excise Department, Sri Ganganagar in the Court of the learned Chief Judicial Magistrate, Sri Ganganagar on 18.6.1987. As per the allegations levelled in the complaint, on 22.11.1986, Arjun Lal Tulsiani (PW-2) was posted as the Superintendent of Customs and Central Excise Department, Sri Ganganganagar. During some other proceedings, he allegedly received an information regarding concealment of opium by Kishan Lal Jat, resident of village Munda, Tehsil Hanumangarh. Arjun Tal Tulsiani (PW-2), the Superintendent of the Customs and Central Excise Department, Sri Ganganganagar in turn issued a search warrant Exhibit P/3 in the name of Inspector K.L. Kohli. Thereafter, he collected a team of his inspectors and proceeded towards Hanumangarh Town at about 8 O' Clock in the morning. The Superintendent was allegedly assisted by a team of Inspectors namely K.L. Kohli, one Alaxender and one Mr. Verma and other departmental officials. It is alleged that the team reached at a house at Hanumangarh Town, wherein, the appellant had taken a room on rent. The owner of the house was alleged to be some other person who resided elsewhere. When the raid party entered in the room, the appellant was found there and another person namely Gurtej Singh was also present in the room. The Superintendent alleged that the search of the room was taken by his staff in his supervision, on which, a polythene bag was recovered from inside the tin meant for storing 'atta' (wheat flour). When the polythene bag was opened, opium weighing 1 kg and 900 gms was recovered. The accused allegedly gave an information to the raid party that more opium was concealed in his house at village Munda. As per Para No. 5 of the complaint, the accused dug up the mud floor outside the room and got recovered another polythene bag containing opium. The accused allegedly gave an information to the raid party that more opium was concealed in his house at village Munda. As per Para No. 5 of the complaint, the accused dug up the mud floor outside the room and got recovered another polythene bag containing opium. As per Para No. 8 of the complaint, the raid party proceeded to village Munda and got recovered opium in two polythene bags from the courtyard of his house which on weighment was found to be 1 kg and 700 gms. On tasting and smelling, the recovered article was suspected to be opium. Samples of 30 gms. each were taken from the seized opium and sealed and remaining article was also sealed. The Panchnama Ex.P-1 was prepared. Samples of 30 gms. each were drawn from the said opium also and packed. Ultimately, the accused was arrested on 24.11.1986 and after usual investigation, a complaint was filed against him for the offence under Section 8/18 of the N.D.P.S. Act. 3. At the trial charges were framed against the appellant for the offences under Section 8/18 and 21 of the N.D.P.S. Act. The accused pleaded not guilty and claimed trial. The prosecution examined as many as six witnesses in support of its case. The accused in his statement under Section 313 Cr.P.C. denied the allegations of the prosecution and claimed that at his residence of Munda apart from himself his three brothers and father lived jointly and thus the house was of joint possession. He denied that any opium was recovered from the Nohra. He did not choose to produce any witness in defence. The learned trial Judge, however, proceeded to hold that both the recoveries; one from the room at Hanumangarh and the other from the village at Munda were duly proved as having been effected from the appellant and accordingly the appellant was convicted and sentenced for the offence under Section 8/18 of the N.D.P.S. Act as stated above. Hence, this appeal. 4. Mr. M.K.Garg, learned counsel for the appellant submits that exfacie the learned trial Judge has committed a grave error in convicting and sentencing the appellant. He submits that the room at Hanumangarh town from where opium weighing 1 Kgs. & 920 gms was recovered was admittedly not in the possession of the appellant. Hence, this appeal. 4. Mr. M.K.Garg, learned counsel for the appellant submits that exfacie the learned trial Judge has committed a grave error in convicting and sentencing the appellant. He submits that the room at Hanumangarh town from where opium weighing 1 Kgs. & 920 gms was recovered was admittedly not in the possession of the appellant. He contends that the appellant as well as Gurtej Singh were found present in the room when the recovery was effected. He submits that Gurtej was also made to sign the Panchnama but no action was taken against him for the recovered opium. Learned counsel further submits that though the second recovery of 1.700 Kgs. was allegedly effected from the Nohra of the house alleged to be that of the appellant but neither any evidence has been adduced for establishing that the Nohra belongs to appellant nor is there any evidence to show that Nohra was in exclusive possession of the appellant so as to justify his conviction. Learned counsel thus contends that the appellant was wrongly convicted in this case. 5. Per contra Farzand Ali, learned counsel for the Department has vehemently opposed the submissions of the learned counsel for the appellant. He submits that the appellant was present when both the recoveries were effected and he has signed the recovery memos in presence of the Panchas. He thus contends that the presumption of law under Section 35 of the N.D.P.S. Act is available to the prosecution against the appellant and thus he was rightly convicted for the offence. 6. Heard and considered the submissions advanced at the bar. Perused the judgment impugned and the record. From the perusal of the record, it is apparent that the first recovery was effected in this case from the house of Gurtej Singh at Hanumangarh at 10.30 in the morning. The Inspector H.N.Tikyani, P.W. 1 has admitted that the room from where the recovery was effected was taken on rent by Gurtej Singh. The recovery has been effected from a tin meant for storing wheat flour. There is no material on record to show as to how the petitioner could be aware of the opium concealed in the room of Gurtej Singh. The recovery has been effected from a tin meant for storing wheat flour. There is no material on record to show as to how the petitioner could be aware of the opium concealed in the room of Gurtej Singh. Gurtej Singh has neither been made accused nor has been kept as a witness for establishing that the appellant was responsible for concealing the opium which was recovered from the room occupied by him. H.N.Tikyani in his examination in chief has stated that when the search proceedings were going on the accused gave an information that more opium was concealed in the same premises beneath the mud floor which was also recovered. Similar evidence has been given by P.W. 2 Arjun Tulsyani, Superintendent of Customs Department. What is significant to note is that the alleged information of the appellant was not taken down in writing. In cross examination of the witness P.W. 1 H.N.Tikyani, he admitted that the room from where recovery was effected was rented out to Gurtej Singh. Gurtej singh was also apprehended at the time of recovery but there is no such material on record by which it can be deciphered as to what was the fate of Gurtej Singh after he was apprehended. He appears to have been let off by the prosecution without any justification whatsoever. Thus, the conduct of the prosecution in this case becomes highly doubtful because it has chosen to leave out Gurtej Singh who was prima facie responsible for concealment of opium in the room which was in his exclusive possession without any justification whatsoever. P.W. 2 Arjun Tulsyani has also not stated that the information given by the accused Kishanlal regarding opium being concealed at village Munda was taken down in writing. The witness Arjun Tulsiyani has been given a suggestion that the two brothers and father of Kishanlal lived in the same house at Munda where from the second recovery was allegedly effected. He pleaded ignorance in this regard. A specific suggestion has been given to the witness regarding the condition in which samples remained after the seizure. The witness admitted that Malkhana Incharge of his office was one S.K.Gupta. The witness also admitted that he does not know as to when the sample was forwarded for chemical examination. P.W. 3 Jagdish and P.W. 4 Ramesh were the Motbirs of the recovery effected from the room of Gurtej. The witness admitted that Malkhana Incharge of his office was one S.K.Gupta. The witness also admitted that he does not know as to when the sample was forwarded for chemical examination. P.W. 3 Jagdish and P.W. 4 Ramesh were the Motbirs of the recovery effected from the room of Gurtej. Both turned hostile at the trial and did not support the prosecution story. In cross examination it was admitted by P.W. 4 that Kishanlal was having three brothers and his father was also alive. He stated that the wall of the Bara from where the opium was recovered was just about 2-3 ft. high. P.W. 5 K.L. Kohali was the Inspector who was authorised by the witness P.W. 2 Arjun Tulsiyani to conduct the search proceedings. K.L.Kohali admitted that he conducted search proceedings in a room and where Gurtej and Kishanlal were present and there opium was recovered from a tin of wheat flour. Thereafter Kishnlal revealed that he has placed opium beneath the mud floor and on digging the mud floor outside the room more opium was recovered from under the floor. The witness has no where stated about the recovery effected from the house of Kishanlal at village Munda. The Public Prosecutor has not even confronted the witness with his previous version. P.W. 6 Nathuram was another Motbir who was kept to witness the seizure proceedings but he too has not supported the prosecution. 7. From the discussion of the evidence made herein above, it is apparent that from the material available on record the following facts can be held to have been proved beyond any manner of doubt. 1. That the first recovery was effected from a room which was in the exclusive possession of Gurtej Singh. Gurtej Singh was neither kept as a witness nor was made an accused in the case despite having been initially apprehended. 2. The second recovery which was allegedly effected from the village Munda was effected without any authorisation nor any search warrant was obtained for the same. Though it is true that P.W. 2 Arjun Tulsyani was a Superintendent in the customs department and thus was an officer authorised under Section 42 of the Act but the fact remains that the witness has himself admitted that the recovery was effected in pursuance to the information given by the appellant but the information was not taken down in writing. 3. 3. The second recovery made vide Recovery Memo Ex.P-4 is shown to have been effected from a house in the joint possession of the appellant his brothers and his father. The prosecution has not led any evidence to show that the place from where the recovery was effected was in exclusive possession of the appellant. 4. The samples were allegedly taken out from the recovered opium on 22.11.1986. The same were forwarded to the Government Laboratory, Neemuch and were received there on 24.12.86. There is no evidence whatsoever on record to show as to what was the fate of the seized samples between the said period i.e. 22.11.1986 to 24.11.1986. Neither any witness for the purpose of showing safe custody of the samples from the time of the seizure till the date they were forwarded to the chemical examiner has been examined by the prosecution in this case nor has the prosecution produced any witness for proving the transit of the samples from the Malkhana of the Customs Department to the Government Laboratory . Thus, the requisite link evidence for the purpose of establishing the samples of the contraband remained in the self same condition from the time of the seizure till they reached the chemical examiner is totally missing in this case. 8. As per the Para No. 4 of the complaint filed in this case, the recovery of opium was initially effected from the room at Hanumangarh from inside the tin meant for storing atta (wheat flour). As per the Para No. 5 of the complaint, the accused thereafter dug up the floor of the courtyard outside the room and took out another polythene bag, from which, more opium was recovered. As per Para No. 8 of the complaint, appellant Kishan Lal is alleged to have given an information that he had concealed more opium at his residence at the village Munda. In pursuance to the said information, the prosecution party allegedly proceeded to village Munda and from there more opium weighing 1 kg and 700 gms was recovered from the courtyard of the appellant's house. In pursuance to the said information, the prosecution party allegedly proceeded to village Munda and from there more opium weighing 1 kg and 700 gms was recovered from the courtyard of the appellant's house. The prosecution witnesses namely H.N.Tikiani (PW-1), Arjun Lal Tulsiani (PW-2) and K.L. Kohli (PW-5) all the departmental officers have stated in their examination-in-chief that after the recovery of the opium from the room rented by Gurtej Singh, the accused came out of the room and from the courtyard of the same house, the second packet of opium weighing 1 kg and 920 gms was taken out by the accused after digging the kaccha floor of the courtyard. Meaning thereby, all these witnesses have not stated in their examination-in-chief that the second recovery as alleged in the complaint was effected from the appellant's house at village Munda. The discrepancy is so grave that it virtually destroys the substratum of the prosecution case. The first recovery was admittedly made from the room which was in the possession and control of Gurtej Singh, who was let off by the prosecution. The second recovery which as per the complaint was allegedly made from the appellant's house at the village Munda has not even been stated by the principle witnesses of the prosecution to have been effected from his house. Thus, the prosecution has hopelessly failed to prove its case and the conviction of the appellant as recorded by the trial court cannot be sustained. 9. In view of the aforesaid discussion, this Court is of the opinion that the appeal filed by the appellant deserves to be accepted.Accordingly, the appeal is hereby allowed. The conviction and sentence as recorded by the learned trial court are quashed. The appellant is already on bail. He need not surrender. His bail bonds are discharged.Appeal allowed. *******