JUDGMENT 1. - The instant leave to appeal application has been filed in the State of Rajasthan against the judgment dated 5.11.2012 passed by the learned Special Judge (N.D.P.S. Act Cases), Udaipur in Sessions Case No. 180 of 2005 whereby the respondent Ratan Lal was acquitted of the charge under Section 8/20 of the N.D.P.S. Act, 1985. 2. Briefly stated the facts of the case are that the S.H.O. Phalasiya allegedly received an information that the respondent herein was indulged in illegal cultivation of Ganja. It was also mentioned in the information that Ganja was concealed in the residential premises of the respondent under a heap of grass. An apprehension was expressed that if the accused was not caught immediately, lie could probably alienate the contraband. The information was taken down in writing and a copy thereof was forwarded to the Superintendent of Police, Udaipur, the Addl. S.P. Headquarter and the Circle Inspector, Jhadol. Thereafter, the S.H.O. accompanied with the other members of the Police Station proceeded to conduct a raid at the place disclosed by the Mukhbir. Two motbirs namely Pawan Kumar and Kalu Ram were summoned from the Bus Stand Phalasiya. Thereafter, the S.H.O. reached near the school at the village Nichli Sigri, and the official jeep was concealed there to avoid discovery by the accused. The S.H.O. reached the house of the accused at 5.45 P.M. It is alleged that on seeing the Police party, the accused locked the door of the house and fled away westwards in the forest. The Police party pursued him for about half a km but could not catch him. The Police party then proceeded back to the residential premises alleged to be of the respondent. There was an apprehension that if the search was not undertaken immediately, the accused would probably remove the Ganja from the premises. Therefore, the S.H.O. broke open the lock put by the accused on the door with a stone and conducted the search of the residential premises. As per the information given by the mukhbir, a gunny bag was recovered from underneath the haystack. Contraband ganja weighing 4 kg was recovered from the gunny bag. Two samples of 250 gms each were taken out and sealed separately. The broken lock was also sealed separately in a bag. As per the information given by the mukhbir, a gunny bag was recovered from underneath the haystack. Contraband ganja weighing 4 kg was recovered from the gunny bag. Two samples of 250 gms each were taken out and sealed separately. The broken lock was also sealed separately in a bag. The seizure memo (Ex.P-4) was prepared and thereafter, the S.H.O. returned back to the Police Station and registered an F.I.R. No. 158/2004. The accused was apprehended during the course of the investigation. He allegedly gave information about the field where, he cultivated Ganja. It may be mentioned that no incriminating material was recovered from the field. The samples were forwarded to the F.S.L. from where a report was received that the sample gave positive test for presence of chief constituents of Ganja. A charge-sheet was filed against the respondent for the offence under Section 8/20 of the N.D.P.S. Act in the Court of the learned Special Judge (N.D.P.S. Act Cases), Udaipur. The Charge was framed against the respondent for the aforesaid offence. The respondent pleaded not guilty and claimed trial. The prosecution examined 15 witnesses in support of its case. The accused in his statement under Section 313 Cr.P.C. denied the prosecution allegations but did not lead any evidence in defence. The learned trial Judge at the conclusion of the trial held that the prosecution failed to prove that the residential premises from where the recovery was effected were in the exclusive possession of the respondent. Accordingly, the respondent was acquitted of the charge. The State has now approached this Court by way of the instant application for leave to appeal challenging the respondent's acquittal. 3. Learned Public Prosecutor submits that the prosecution proved by cogent and clinching evidence that the residential premises from which the recovery was effected were in the conscious possession of the respondent. He thus, submits that the leave to appeal application be accepted. 4. Per contra, Shri Dungar Singh learned counsel appearing for the respondent submits that the prosecution failed to prove that the premises from where the recovery was effected were in the exclusive and conscious possession of the accused. He submits that the prosecution relied upon the certificate (Ex.P-26) issued by the Sarpanch of the village for establishing that the premises were in the exclusive possession and ownership of the respondent. He submits that the prosecution relied upon the certificate (Ex.P-26) issued by the Sarpanch of the village for establishing that the premises were in the exclusive possession and ownership of the respondent. Learned counsel submits that the certificate was issued after three months of the recovery. No prior evidence was collected by the investigating agency for showing that the premises were in the exclusive possession of the respondent. He relies on the decision rendered by the Hon'ble Apex Court in the case of Central Bureau of Narcotics v. Bahadur Singh reported in (2010) 15 SCC 111 and submits that as the prosecution failed to prove the respondent's exclusive and conscious possession over the premises, the respondent's acquittal as recorded by the trial Judge does not call for any interference. 5. Heard and considered the arguments advanced at the bar, perused the judgment impugned and the record. 6. It is not in dispute that the recovery was effected by the S.H.O. Chagan Rajpurohit PW-2 on 4.11.2004. It is also not in dispute that the recovery documents do not bear the respondent's signatures. It is also not in dispute that the certificate (Ex.P-26) was the sole document on the strength whereof, the prosecution attempted to prove the respondent's conscious physical possession over the premises in question. The certificate was procured on 16.2.2005 i.e. after nearly three months of the recovery. The Sarpanch, who issued the certificate was not examined by the prosecution. It is also relevant to mention here that the recovery was effected from the closed premises in the month of November at 7.00 P.M. Before entering into the premises and effecting the recovery, the S.H.O. did not record any reasons for not procuring a search warrant. Thus, the recovery proceedings which were effected by the S.H.O. Chagan Rajpurohit in this case are vitiated on account of non-compliance of Section 42(2) of the N.D.P.S. Act. The two motbirs of recovery namely Pawan Kumar PW-5 and Kalu Ram PW-6 did not support the prosecution story and turned hostile. In this view of the matter, this Court is of the opinion that the learned trial Judge committed no error, illegality or perversity in acquitting the respondent from the charge. No justification is shown from the record for granting leave to the State of Rajasthan to appeal against the judgment of acquittal, which is under challenge. 7. In this view of the matter, this Court is of the opinion that the learned trial Judge committed no error, illegality or perversity in acquitting the respondent from the charge. No justification is shown from the record for granting leave to the State of Rajasthan to appeal against the judgment of acquittal, which is under challenge. 7. Accordingly, the leave to appeal application filed by the State of Rajasthan for being granted the leave to file an appeal against the judgment dated 5.11.2012 passed by the learned Special Judge (N.D.P.S. Act Cases), Udaipur acquitting the respondent of the charges under Section 8/20 of the N.D.P.S. Act, 1985 being meritless is rejected.Leave to appeal dismissed. *******