JUDGMENT 1. - S.B. Criminal Appeal No. 44/1989 has been preferred by Khangara son of Pokar resident of Kotra to assail judgment of conviction dated 16.1.1989 along with the order of sentence of even date whereby the appellant was sentenced to undergo ten years rigorous imprisonment and pay a fine of one lac rupees, in default thereof, to undergo one year rigorous imprisonment under Section 18 of N.D.P.S. Act. 2. On 3.3.1987, Ram Lal (PW-8) was posted as S.H.O. P.S. Bagoda. Police Chowki, Narsana was under his jurisdiction. He had gone thereon that day in relation to performance of his duties, while present there, he received, an information, from informant, that one Bishnoi, who was wearing angochha (headgear) is selling opium and is1 going towards tube-well of Lal Singh. Ram Lal, S.H.O. (PW-8) made entry in the 'rojnamacha', constituted a raiding team which included Narayan Singh, Head Constable Ram Singh, Girdhargar and Dhan Singh, driver of the Government vehicle. He proceeded towards tube-well of Lal Singh. On reaching there, he spotted person as per the marks of identification and description given by informant. The person so described, was apprehended. At that time, Pratap Singh 'motbir' (PW-4) was present there. In presence of independent witness (PW-4) and Constable Ram Singh (PW-5), headgear of the person apprehended was taken into possession. From the headgear (angochha) one pouch of opium was found. In the presence of the witnesses, the pouch was smelled and tasted. Opium was found and the same was weighed and found 180 grams. 30 grams of opium was taken as sample and was sealed. The separate recovery memo was prepared. Recovery memo was prepared in the presence of witnesses. The rough-sketch of the spot was prepared which is exhibited as Ex.P-8. Accused was arrested. Memo of search and seizure (Ex.P-5) was prepared. First Information Report was prepared and sent to Bagoda Police Station for registration of case through Constable Girdhargar. 3. Ram Lal (PW-8) after effecting arrest, interrogated the present appellant Khangara. He suffered a disclosure statement that he had kept 1 kg. 450 gms. of opium in two different pouches in one bag of urea fertilizer in the field of Jiya Bishnoi and he himself can go to spot, and after digging pit, can get the opium recovered. The disclosure statement is exhibited as Ex.P-12. He suffered a disclosure statement that he had kept 1 kg. 450 gms. of opium in two different pouches in one bag of urea fertilizer in the field of Jiya Bishnoi and he himself can go to spot, and after digging pit, can get the opium recovered. The disclosure statement is exhibited as Ex.P-12. In the Government jeep, along with companion police officials and the accused, Investigating Officer reached at the place disclosed, independent witness Gulab Singh was also joined. Accused took police party at the place specified and removed earth, from a fresh dug pit and got recovered one bag of urea fertilizer. Bag was tied with a small rope (suthli). After opening the bag, Investigating Officer found opium in two pouches. The same was smelled and tasted. From the one pouch, on weighment, 1 kg. opium was discovered out of which 30 gm. was taken as sample for chemical examination. From the second pouch, 450 gms. of opium was recovered, out of which 30 gms. was taken as sample for the purpose of chemical examination. Necessary procedure for search, seizure and drawing samples was followed. The rough-sketch of the spot was prepared which is exhibited as Ex.P-9. Along with accused, contraband recovered, and samples drawn, Investigating Officer reached Police Station. A direction was given that the three sample packets for chemical examination be handed over to Chima Ram. Contraband recovered and samples were entrusted to Bhanwar Singh for deposit in Malkhana in the presence of Prem Singh. Also, house of accused was searched but nothing was recovered. 4. On the basis of above information, the case F.I.R. was investigated and subsequently report under Section 173 Cr.P.C. was submitted. 5. The Court of Sessions, Jalore on 13.8.1987 charged the appellant for offence under Section 18 of N.D.P.S. Act. The charge stated that on 3.3.1987, in the revenue estate of village Nursana, 180 gms. opium was recovered from person of appellant. Later, he got 1 kg. 480 gms. of opium recovered from the field near his house and thus had committed offence punishable under Section 18 of the N.D.P.S. Act. 6. The appellant pleaded not guilty and claimed trial. 7. Prosecution examined nine witnesses, Chima Ram PW-1 stated that on 4.3.1987 in his presence, house of accused was searched and nothing incriminating was found. On 10.3.1987, he was posted as Constable in Police Station, Bagoda. 6. The appellant pleaded not guilty and claimed trial. 7. Prosecution examined nine witnesses, Chima Ram PW-1 stated that on 4.3.1987 in his presence, house of accused was searched and nothing incriminating was found. On 10.3.1987, he was posted as Constable in Police Station, Bagoda. He was handed over three samples for deposit in the office of Chemical Examiner. With these samples, he came to the office of S.P., Jalore, obtained a forwarding letter and deposited sealed packet at Jaipur. He obtained receipt regarding deposit from the office of Chemical Examiner and deposited the same in the Police Station. So long the packets remained with him, seals were intact and he did not tamper with the same. In cross-examination, this witness stated that Bhanwar Singh was Malkhana-in-charge, in his presence, he opened the lock of Malkhana. When packet was handed over to him, nobody else was present. On that day, he had taken samples of only one case to Jaipur. Each sample was having how many seals, was not known to him. 8. Bhanwar Singh appeared as PW-2, he stated that on 3.3.1987, he was posted as Head Constable of P.S. Bagoda on that day, Investigating Officer had handed over five packets in sealed condition. He made an entry in the Malkhana register and on 10.3.1987, he handed over three samples to Chima Ram for deposit with Chemical Examiner. Till the goods remained with him, they remained intact and were not tempered. Fie stated that samples were in three small boxes, he does not remember that boxes were of iron or not. He denied being, incorrect that in his supervision, samples were changed. The packets were having seal of Ram Lal. He further stated that while going for recovery, official took seal of police station and seal remained in the Malkhana. 9. Prem Singh PW-3 stated that on 3.3.1987, he was posted as Head Constable at P.S. Bagoda. S.H.O. Bagoda had sent one writing at 2.30 P.M. to Police Station through F.C. Girdhargar for registration of case against present appellant. On the basis of writing received, he registered the case. He further stated that on that day, he was also Incharge of Malkhana. On 3.3.1987, Investigating Officer handed over him seven packets, he deposited the same in Malkhana. Bhanwar Singh had assisted him. Packets contained seal of Ram Lal. On the basis of writing received, he registered the case. He further stated that on that day, he was also Incharge of Malkhana. On 3.3.1987, Investigating Officer handed over him seven packets, he deposited the same in Malkhana. Bhanwar Singh had assisted him. Packets contained seal of Ram Lal. In cross-examination, he stated that key of Malkhana remained with him, since he fell sick, same was handed over to Bhanwar Singh. He stated that he do not remember the date when he fell sick, he became sick after 10-12 days of day of recovery. He further stated that the seal of police station remained in the Malkhana. 10. Pratap Singh Independent witness appeared as PW-4, he stated that about 8 months ago, he was called at Police Station and his thumb impressions were taken. This witness was declared hostile and was cross-examined by the Public Prosecutor. In cross-examination by accused, he stated that when he went to police station, his thumb impression was taken on 4-5 papers, at that time, two persons were sitting there. 11. Ram Singh (PW-5) being constable was member of raiding party, he corroborated the testimony of PW-8 regarding search, seizure, recovery and taking of samples. The following lines in the cross-examination, being important are required to be noted: "It is possible that small box may have been obtained from Narsana Chowki, but I do not know. The goods for affixing seal were brought from the Police Station. Seal of Police Station was brought from police station. From where weighing scale came, it is not known to me. I am not aware weighing scale may have been brought from well of Lal Singh. Further stated that I kept sitting with Khangara. After half an hour, affixing of seal was started. First memo was prepared and then seal was affixed." 12. Lal Singh (PW-6) another independent witness had also not supported the prosecution case. He denied any recovery of opium from the field. He denied having made any statement to the police. He was confronted with his previous statement. PW-7 Jiya near whose field alleged recovery of opium was effected, stated that eight months ago, accused came to his field when police vehicle came, they asked about the accused, he denied any recovery of opium from his field. Jiya was third independent witness of the case who has not supported the prosecution case. PW-7 Jiya near whose field alleged recovery of opium was effected, stated that eight months ago, accused came to his field when police vehicle came, they asked about the accused, he denied any recovery of opium from his field. Jiya was third independent witness of the case who has not supported the prosecution case. PW-9 Gulab Singh had also not supported the prosecution case. He also stated that in his presence, no recovery of opium was effected. He further denied recovery of opium from the field at the instance of any person. 13. Prosecution closed its evidence. Statement of accused was recorded under Section 313 Cr.P.C. all incriminating evidence was put to the accused, he denied the same and reiterated his innocence. 14. Having given brief gist of the case, this is to be noted that out of nine witnesses examined by the prosecution, four witnesses viz. Pratap Singh (PW-4), Lal Singh (PW-6), Jiya (PW-7) and Gulab Singh (PW-9) have not supported the prosecution case rather their testimony indicate false implication of appellant. They have denied the recovery of opium from the person of the appellant and at his instance from the field. Prosecution case entirely rest upon testimony of PW-8 Ram Lal, who was then posted as S.H.O. P.S. Bagoda and PW-5 Ram Singh son of Dhan Singh, who was then posted as Constable at Narsana Chowki falling within the jurisdiction of Police Station Bagoda. 15. To appraise the evidence of above said two police official witnesses PW-8 Ram Lal, S.H.O. and PW-5 Constable Ram Singh, certain broad features of the case are required to be noted. PW-8 S.H.O. Ram Lal had not handed over the seal after its use to any independent person. Even the same was not handed over to member of the police party. Samples were deposited in the police Malkhana on 3.3.1987. for a period of 6-7 days, samples and seal were with the police. Samples of contraband drawn and the case property on the very next day i.e. 4.3.1987 were not produced along with accused before the Magistrate. There is no indication on file when the accused was produced for remand and whether, case property and samples were produced before the Magistrate or not. Ram Singh (PW-5) regarding material aspects of the investigation had taken a refuge to the convenient answer- "I do not remember". There is no indication on file when the accused was produced for remand and whether, case property and samples were produced before the Magistrate or not. Ram Singh (PW-5) regarding material aspects of the investigation had taken a refuge to the convenient answer- "I do not remember". He is not even aware that from where weighing scale was brought. Jiva (PW-7) from whose field alleged recovery was made has denied the same. Recovery of opium after digging the pit is from open and accessible place. No revenue official, Sarpanch or Panch and Chowkidar has been examined. Prosecution has not proved the ownership and possession of the field. To the disclosure of the recovery, no independent corroboration is forthcoming. Furthermore, at the first instance, 180 grams of opium was recovered from the headgear which the accused was wearing, qua this recovery, no offer as per term of Section 50 of N.D.P.S. Act was made to the accused. He was not acquainted with his valuable right that he can get search effected in the presence of a Magistrate or a Gazetted Officer, therefore, the first recovery is vitiated for non-compliance of the mandatory provision as envisaged under Section 50 of the N.D.P.S. Act. Since, the very first recovery is vitiated, to attach sanctity to subsequent recovery, the Court has to be at guard and appreciate the evidence of official witnesses with utmost care and circumspection. Second recovery is based on the evidence of police witnesses along. Four independent persons examined by prosecution, have denied any recovery effected in pursuance of disclosure made. They have totally denied procedure of search and seizure. Accused has not been attributed to be a person of influence. It is difficult to believe that at his instance not one, but four independent witnesses cited and examined will not support prosecution. 16. Taking numerous factors which have been enumerated above, this Court is of the view that it is not safe to place implicit reliance on the testimony of two official witnesses regarding search, seizure and recovery. Hence, this Court shall extend benefit of doubt to the appellant and set aside the judgment of conviction and order of sentence and acquit the appellant of the charge, by accepting the instant appeal.Appeal allowed. *******