JUDGMENT Jitendra Chauhan, J. 1. This appeal is directed against the judgment and order dated 13.12.2003, passed by the Court of learned Special Judge, Amritsar, vide which, the appellants were convicted and sentenced to undergo rigorous imprisonment for a period of six months each and to pay a fine of Rs.1000/each; in default thereof, the defaulter to further undergo rigorous imprisonment for a period of one month, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the Act’). 2. The facts necessary for adjudication of the matter as narrated in para no.2 of the impugned judgment are as under: “SI Manjit Singh SHO alongwith ASI Charan Singh, HC Vijay Singh, CII Ram Dass, Constable Satnam Singh, C.Amarjit Singh were present with Government Zypsy No.PB08F2293 drive by Constable Devinder Singh in connection with Hola Mohalla duty at Tpoint, New Model Town, Bhagani Choe, when one maruti van of white colour bearing registration no.PB07B2386 came from the byepass of Tanda main road towards metalled road Bhangi Choe of the City; that on noticing the presence of the police naka, the said maruti van was abruptly stopped, at a distance from the naka and was tried to be taken towards the back side by reversing the vehicle; that Manjit Singh SI with the help of other police officials encircled the said maruti van on the basis of suspicion; that the person who was driving the Maruti Van disclosed his name as Ram Chand son of Ram Saran resident of Bilaspur, Police Station Mahilpur, three other young persons were siting in the back seat of the Maruti Van who disclosed their names as Parminder Singh son of Kewal Singh resident of village Sarangwal, Amrik Singh son of Jagtar Singh, resident of Bhangala and Satnam Singh alias Satta son of Avtar Singh, resident of Hira, District Una (HP); that during this interval, Gopal Dass, President of Mohalla Bhagat Nagar, incidentally came there and was joined in the police party, as a public witness. The three young persons sitting in the back seat had kept underneath their feet jute bag, whose mouth was tied with a cord; that Manjit Singh SI disclosed the said persons his identity and posting as SHO Model Town and that he suspected the presence of some intoxicants in the van and that search of the same was to be conducted and that the accused had the option of getting search conducted from him or in the presence of Gazetted Officer or Magistrate; the accused however, reposed confidence in the Investigating Officer and was prepared for getting the search of Maruti Van conducted; joint consent memo. of the accused Ex.PA was reduced into writing which was signed by all the accused and attested by ASI Charan Singh and Gopal Dass; that incidentally Sukhwinder Singh DSP City, Hoshiarpur came to the spot, who also after disclosing his identity and posting offered that the accused could get their van searched in the presence of some other Gazetted Officer or a Magistrate; the accused however, were prepared for search in the presence of Sukhwinder Singh DSP by the SHO and their joint consent memo Ex.PB was reducing into writing which was attested by SI Manjit Singh, ASI Charan Singh and Gopal Dass; that on the directions of Sukhwinder Singh DSP, Manjit Singh SI conducted the search of the jute bag kept by the three accused sitting on the back seat, under their feet in the van; that jute bag was found to contain poppy husk; that 250 grams poppy husk was separated as sample and the remaining poppy husk on weighing was found to be 14 kilograms 750 grams; the case property was put in the same bag and its mouth was tied with a cord and separate parcel of the case property and the sample were prepared which were sealed by the Investigating Officer Manjit Singh with his seal bearing impression 'MS'. He also prepared separate seal impression and thereafter, handed over the seal to public witness Gopal Dass; case property, sample and seal impression alongwith the Maruti Van with its registration certificate in the name of Inderjit Singh and Satwinder Singh son of Nirmal Singh resident of Naura were taken into possession vide recovery memo Ex.PC which was attested by Gopal Dass, ASI Charan Singh and Sukhwinder Singh DSP. The accused, however, failed to produce any permit or licence for keeping 15 kilograms poppy husk and ruqa Ex.PH was accordingly sent through Constable Amarjit Singh on the basis of which formal FIR Ex.PH/1 No.51 under Section 15 of the Act was registered at Police Station City, Hoshiarpur. Investigating Officer prepared rough site plan Ex.PJ depicting the place of recovery; personal search of the accused Satnam Singh, Ram Chand, Parminder Singh and Amrik Singh was conducted and the cash/ articles recovered from their possession were taken into possession vide recovery memo. Ex.PD, Ex.PE, Ex.PF, Ex.PG respectively which were signed by the accused and attested by Gopal Dass and ASI Charan Singh. Accused alongwith the case property and other articles were taken to police station, where the case property and sample etc. were deposited with HC Ashwani Kumar MHC and the accused was put in the police lockup; sample alongwith the docket Ex.PJ were sent through the road certificate through PW3 Constable Bikramjit Singh to the office of Forensic Science Laboratory and the report of Forensic Science Laboratory Ex.PH was received whereby after analysis the contents of the sample were found to be poppy husk. 3. After completion of the investigation, the challan was presented against all the accused in the Court. They were charged under Section 15 of the Act, to which, they did not plead guilty and claimed trial. 4. In order to substantiate the charges, the prosecution examined the following witnesses: PW1, ASI Charan Singh a member of the police party headed by SI Manjit Singh. They were on the duty of checking the bad elements in connection with Hola Mohalla Duty. PW2, Inspector Manjit Singh, the Investigating Officer, arrested the accused. He conducted the recovery proceedings and deposited the case property with MHC Ashwani Kumar PW3, C. Bikramjit Singh, the case property was handed over to him depositing for the same with the CFSL, Chandigarh. PW4, HC Ashwani Kumar posted as MHC at PS Model Town, was handed over the case property. He send the sample parcels to the CFSL, Chandigarh through Constable Bikramjit Singh. PW5, DSP Sukhwinder Singh, is the main witness. In his presence, the recovery was effected. 5. When examined under Section 313 of the Code of Criminal Procedure, the accused appellants denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. He send the sample parcels to the CFSL, Chandigarh through Constable Bikramjit Singh. PW5, DSP Sukhwinder Singh, is the main witness. In his presence, the recovery was effected. 5. When examined under Section 313 of the Code of Criminal Procedure, the accused appellants denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. Without examining any witness, they closed their defence evidence. 6. The learned trial Court by observing that prosecution has successfully proved its case against the accused appellants, convicted and sentenced them, as noticed at the outset. 7. Feeling aggrieved against the same, the accused appellants preferred the present appeal, which was admitted on 18.12.2003. 8. It is contended by the learned counsel for the appellants that the learned trial Court while convicting and sentencing the appellants committed a grave error. He submitted that Gopal Dass was joined as public witness, but he was not examined; there are material contradictions in the statements of the PWs; there is unexplained delay of six days in sending the sample to the office of Chemical Examiner; the presence of the DSP at the spot is doubtful; the owner of the vehicle was neither investigated, nor produced as PW and the officials, who were the recovery witnesses, were not examined, therefore, the accused have been deprived of their right of cross-examination. Lastly, it is submitted that in view of the small recovery and the fact that the accused have not repeated the offence, a lenient view be taken. 9. On the other hand, the learned State counsel submits that the case of the prosecution is fully established and therefore, the learned trial Court has rightly convicted and sentenced the accused appellants. 10. I have heard the learned counsel for the parties and perused the record carefully. 11. Inspector Manjit Singh, who headed the police party, deposed that he on getting suspicion that the accused were in possession of contraband, apprehended the Van. There were four persons in the Van. The gunny bag was lying in the feet of all the three accused on the back seat. From the meticulous examination of the statement of PW2, Manjit Singh, it reveals that the recovery was not effected from the conscious possession of the appellants. 12. There were four persons in the Van. The gunny bag was lying in the feet of all the three accused on the back seat. From the meticulous examination of the statement of PW2, Manjit Singh, it reveals that the recovery was not effected from the conscious possession of the appellants. 12. In Raj Kumar vs. State of Punjab, 2005(1) Recent Criminal Reports (Crl.), 70, the bag containing 8.250 grams of opium was lying on the seat between the two accused. They both were charged for possession of opium, but neither of them had been asked any question in their statements under Section 313 of Cr.P.C. that they were in conscious possession of opium. It was held by the Division Bench of this Court that neither the presumption under Section 35 nor under Section 54 of the Act would be attracted, as it was necessary for the trial Court to frame a specific question regarding the presumption which is sought to be raised either under Section 35 or Section 54 of the Act when examining the accused under Section 313 of Cr.P.C. But no such question was framed or put to the accused regarding their conscious possession. It was held that their conscious possession is not established. 13. No question was also put with regard to the ownership while the accused were examined under Section 313 Cr.P.C. In view of the same, the accused cannot be termed as owners of the contraband. 14. Further, the seal after use was allegedly entrusted to Gopal Dass, an independent witness, who has been given up. In the absence of his evidence, it is very difficult to say that as to whether the seal was in fact handed over to him and if so, either it was returned by him before or after the deposit of the sample parcels for chemical analysis. These facts could have been elicited only if he had been produced at the trial. His non-production also deprived the accused of their right to cross-examine him. The Division Bench of this Court observed in re: State of Punjab vs. Surjit Singh, 2008 (1) Recent Criminal Reports (Crl.), 266, that when the prosecution alleged that a material witness has been won over by the accused, it is still necessary that such witness must be examined to reveal truth. The Division Bench of this Court observed in re: State of Punjab vs. Surjit Singh, 2008 (1) Recent Criminal Reports (Crl.), 266, that when the prosecution alleged that a material witness has been won over by the accused, it is still necessary that such witness must be examined to reveal truth. In re: Baldev Singh vs. State of Punjab, 2005(1) Recent Criminal Reports (Crl.), 823, the seal was given to an independent witness who was not examined. It was held that till the case property has not been despatched to the office of the Forensic Science Laboratory, the seal should not be available to the Prosecution Agency and in absence of such safeguard, the possibility of seal being tampered with, substance being changed and the containers being resealed, cannot be ruled out. 15. ASI Ashwani Kumar in his cross-examination admitted that the sample parcels were sent to the CFSL, Chandigarh on 15.3.2001, through Constable Bikramjit Singh. The recovery was effected on 9.3.2001. There is no explanation with regard to the delay of six days in sending the sample to the laboratory. In Buta Singh v. State of Punjab, 2006 (1) Recent Criminal Reports (Criminal) 835, as many as 18 bags of poppy husk were recovered. The prosecution failed to explain delay of 8 days in despatch of sample to the Forensic Science Laboratory for chemical analysis. It was held that such a delay is fatal and the same is also in violation of the Standing Instruction No.1/88 dated 15.3.1988 (Narcotic Control Bureau, New Delhi). 16. Keeping in view the cumulative effect of the above circumstances, this Court feels that the prosecution has failed to prove its case against the accused beyond reasonable doubt, the benefit of which goes to the accused appellant. 17. In view of the forgoing discussion, this appeal succeeds and is accepted by setting aside the impugned judgment and order of sentence. The appellant is hereby acquitted of the charged offence. His bail bonds shall also stand discharged.