Mansoor, J.— (Oral) 1. In this Criminal Appeal, the appellant, convict, has called in question the judgement and order dated 23.11.2012 passed by the learned Principal Sessions Judge, Leh, in case titled State v. Imtiyaz Ahmad, whereby the appellant has been convicted and sentenced for the commission of offences under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act (for short NDPS Act) to undergo rigorous imprisonment for a term of 14 years and fine of Rs.1.50 lakhs. In default of payment of fine, the convict has been directed to undergo further rigorous imprisonment Of one year. 2. It becomes necessary to give a resume of the prosecution version of the genesis of the case. Police Station, Leh, received an information through reliable source on 17.05.2010 at 2.30 p.m. that one Imtiyaz Ahmad Tanga, appellant herein, was having in possession some intoxicable article, knowi. as Charas, for purposes of sale. On receipt of this information, it is alleged that SHO Police Station, Leh, telephonically informed the ASP and the Executive Magistrate to visit the spot, which they did and, thereafter, an FIR was registered and investigations commenced. After conducting the investigation, a final report was submitted before the learned Principal Sessions Judge, Leh, against the accused. The accused was charge sheeted by the learned Principal Sessions Judge (hereinafter, the trial court) vide order dated 20.09.2010. The accused pleaded not guilty and came to be tried for the Commission of offence punishable under Section 8/20 of NDPS Act. 3. During the pendency of the trial, the accused was admitted to bail. Out of the twelve witnesses listed in calendar, the prosecution examined eleven witnesses. Prosecution witness No. 2, namely, Sonam Krazing, Numberdar Skalzing was reported to be dead. 4. After evidence of prosecution was closed, the statement of the accused, in terms of Section 342 of Cr. P.C., was recorded and he was asked to enter upon defence. The accused did not lead any evidence in defence, accordingly evidence was closed. On 23.11.2012 the judgement was passed, constrained the appellant to file the appeal in hand and is in the custody even as on today. 5. In order to appreciate the evidence, it would be appropriate to record a brief account thereof herein. 6. The statement of prosecution witness No. 1, namely, Chuwang Murugh, was recorded on 11.04.2011. On 23.11.2012 the judgement was passed, constrained the appellant to file the appeal in hand and is in the custody even as on today. 5. In order to appreciate the evidence, it would be appropriate to record a brief account thereof herein. 6. The statement of prosecution witness No. 1, namely, Chuwang Murugh, was recorded on 11.04.2011. He has stated that the Police told him that some contraband substance was recovered from the accused and when he reached the spot, he got the contraband substance weighed and Police asked him to affix his signatures on a paper, which he did. He has accepted his signatures which are marked as Exhibit EXPW/3. The seized contraband substance was also produced before him which he identified in the trial court. In cross examination, he has deposed that, when he reached the spot, the police were opening the goods and he did riot know wherefrom the said goods were brought by the Police; that he has never seen the Charas; that he is illiterate and does not know what was written on the paper; that no number was recorded on the seized articles. He has pleaded ignorance about the Scale. He has also deposed that a girl from Bodhkharbu was sitting in the shop as a Salesgirl. 7. Prosecution witness No. 3, Gurjeet Singh Namgiyal, Naib Tehsildar, Leh has deposed that he received a phone call from SHO Police Station, Leh, that some narcotic substance kept concealed was required to be seized. He sought permission from Tehsildar and went on spot. He asked the police officials as to what proceedings were to be drawn; that search was conducted and some narcotic substance had been kept concealed in the coverings of Maize Corn Cobs; that out of a total number of forty eight pieces, only four had been kept concealed in the coverings of Maize Corn Cobs and remaining had been kept concealed in coverings of Maize Corn Cobs wrapped in polythene. He has accepted the contents of seizure memo as correct and recording of his statement by the police in the Police Station. He has accepted the contents of seizure memo as correct and recording of his statement by the police in the Police Station. In cross examination, he has deposed that when he reached the spot, the police had already been there and had arrested the accused, and were conducting the investigation; that the accused and two other persons were working on the shop and police had made him to believe that some narcotic substance was lying in the shop of the accused; that when he arrived on the spot, nobody, except the police personnel, were there; that the accused was, thereafter, taken to Police Station and the papers were got prepared in there. The witnesses were also taken to the Police Station and seizure memos were prepared in the Police Station, where signatures were taken from all of them. He has also stated that he has never seen the Charas. 8. The statement of prosecution witness No. 4, namely, ASP, Stanzen Narboo, was recorded on 20.04.2012. He has deposed that SHO Police Station, Leh, informed him on phone that on 17.05.2010, in the afternoon that they had received information from reliable sources that at Skalzang Ling Chow, Charas was lying with a greengrocer and, accordingly, he proceeded to the spot. The Executive Magistrate; SHO Police Station, Leh, and other personnel were already on the spot. The accused was given an option as to by whom he would like to have his personal search and that of his shop conducted. Memo of option/election was prepared on the spot which is marked as Exhibit EXPW4-P4. The accused opted that search be conducted by a Gazetted Police Officer. Thereafter, search was conducted. On his personal search, one mobile phone of Nokia and cash of Rs. 200/- comprising two currency notes of Rs.100/- denomination each, were recovered and the same were brought under seizure. On searching the shop, charas was recovered and samples were taken and sent to FSL. In cross examination, he has deposed that when he reached the spot the police personnel had already encircled the shop of the accused. He and the Magistrate arrived on spot just after each other. Seized pieces were sealed on spot. Regarding the option of search, the accused was asked verbally and then the option was reduced into writing. That when the search was conducted, he was all alone there. 9. He and the Magistrate arrived on spot just after each other. Seized pieces were sealed on spot. Regarding the option of search, the accused was asked verbally and then the option was reduced into writing. That when the search was conducted, he was all alone there. 9. The prosecution witness No. 5, namely, Mehraj-ud-din Langoo, has deposed on 11.04.2011 that in between his shop and that of the accused, there are two more shops. On the day of occurrence, police came on the spot and obtained Scale from his shop for weighing the seized items. He has deposed that he did not have any knowledge wherefrom the seized goods had been recovered. In cross examination, he has deposed that no other person, except him, two police officials and the accused were on the spot. 10. The prosecution witness No. 6, namely, ASI, Punchuk Wangdan, has made his depositions before the trial court on 09.08.2011. He has deposed that he was posted in Colony Chowki. The Chowki Officer told him that ASP had already arrived at Skalzang Ling Bazaar and that he should immediately reach there alongwith two or three persons; that ASP, Executive Magistrate, Numberdar and SHO were on the spot. The door of the shop was opened and, after opening of the shop, Charas was brought under seizure and was weighed on the spot; that he did not know wherefrom it was got weighed. The SHO had conducted the seizure. He had first time seen Charas at Srinagar. He has stated in his statement that the statement receded under Section 161 of Cr. P. C. is not based on correct facts and the statement under Section 161 Cr. P.C. attributed to him is wrong; that he had no knowledge about the steps taken by the officers in order to effect the seizure and prepare the seizure memo. 11. The statement of prosecution witness No. 7, Chuang Tundup, SG Constable, was recorded on 30.07.2011. He has deposed that on 17.05.2010 he was informed by Chowki Officer, namely, ASI, P. Wangdan to sit with him in the vehicle and told him that they had to go to Skalzang Ling. 11. The statement of prosecution witness No. 7, Chuang Tundup, SG Constable, was recorded on 30.07.2011. He has deposed that on 17.05.2010 he was informed by Chowki Officer, namely, ASI, P. Wangdan to sit with him in the vehicle and told him that they had to go to Skalzang Ling. When they reached on the spot, the ASP, SHO Police Station, Leh and Tehsildar were present there and people had assembled in large number; that he heard on the spot that charas had been recovered from the shop of the accused and he had no personal knowledge about the seizure. The SHO asked him to bring Scale which he brought from one Feroz Ahmad, a shopkeeper. He has specifically stated that seizure memo does not bear his signatures and does not have any personal knowledge as to wherefrom and from whom the Charas had been recovered. On cross examination, he stated that he did not know as to whom and from where Charas was brought on spot. He does not know whether the Charas, after the same had been kept in a Bag, had been sealed or not. Whether stitching had taken place or not, but it was sealed. He has further stated that he had not signed seizure memo of the seal. 12. The statement of prosecution witness No. 8, namely, Mohammad Ramzan, was recorded on 14.07.2011. He has specifically stated that weighing scale was brought from one shopkeeper, namely, Feroz Ahmad and that his statement was not recorded by the Investigating Officer. Virtually, he has deposed nothing. On cross examination, he deposed that he does not know as to when the ASP, other police personnel and the Magistrate had arrived on the spot; that he did not have any knowledge of the taste and smell of Charas and was not present at the time when the Charas had been recovered or at the time of its seizure. 13. The statement of prosecution witness, Tsering Namgyal, was recorded on 13.06.2011. He has deposed that on 17.05.2010, he was sitting at his home and suddenly police personnel assembled near the shop of the accused, carried out search of the shop and seized a bag. The SP, Tehsildar and SHO were also on spot. At the time of recovery, he was not present on spot. He has. not tendered any statement to the police. The SP, Tehsildar and SHO were also on spot. At the time of recovery, he was not present on spot. He has. not tendered any statement to the police. On the next day the Investigating Officer called him in the Police Station, enquired about his parentage and took his signature. He has specifically stated that he has no knowledge about the occurrence. 14. The statement of prosecution witness No. 10, namely, Mohammad Issa was recorded on 13.06.2011. He has deposed that he has no knowledge about the recovery; that the police took his signatures; that something was written on it, which he did not remember; that he had not given any statement before the police and that the police have wrongly attributed the statement to him. 15. The statement of prosecution witness No. 11, namely, Sonam Rigzin, was recorded on 28.04.2012. He has stated that he received information through a reliable source on 17.05.2010 at 14:30 hours that at Skalzang Ling, one Imtiyaz Ahmad Tenga, greengrocer, was having Charas in his possession for purposes of sale. He further deposed that he registered a case under FIR No. 54 of 2010 and informed ASP, Leh, and Naib Tehsildar (Magistrate), Leh, and requested them to visit the spot. ASP and the Magistrate reached the spot just after him. The accused was present in the shop and was asked to exercise option whether his person and shop be searched by a Gazetted Police Officer or any other Gazetted Officer. He opted to be searched by a Gazetted Police Officer. He has prepared the memo, which is marked as Exhibit EXT-P4. On his personal search, one mobile phone of Nokia and cash of Rs. 200/- comprising two currency notes of Rs. 100/- denomination each, were recovered and the same were brought under seizure. That thereafter, search of the person of accused and of the shop was conducted and a blue coloured bag made of Nylon containing sealed box of Grapes was recovered, which was opened in presence of the Magistrate and other witnesses and a large quantity of Charas was found, which had been wrapped in the coverings of Maize Corn Cobs. Forty eight pieces of Charas were found, out of which 44 were found wrapped in polythene and coverings of Maize Corn Cobs and the remaining four were found to have been kept wrapped in coverings of Maize Corn Cobs. Forty eight pieces of Charas were found, out of which 44 were found wrapped in polythene and coverings of Maize Corn Cobs and the remaining four were found to have been kept wrapped in coverings of Maize Corn Cobs. After weighing the same, on Scale, which was brought from nearby shopkeeper, it was found that total weight was 5KGs and 600gms. Samples were taken from each piece and were sealed on spot in presence of witnesses and were sent for analysis to Experts at Srinagar. The memo, EXT-PW3, was prepared. The accused was arrested. Statement of witnesses was recorded under Section 161 Cr.P.C. on spot. Challan was prepared and presented before the Court for the commission of offence under Section 8/20 NDPS Act. In cross examination, he deposed that Numberdar and members of Mohalla committee of Skalzang Ling also came on spot. Their statements were also recorded by him. The statements of ASP and Magistrate were also recorded by him on the very same day and on the spot. That perhaps Tsering Namgyal and Gurmit Namgyal, Naib Tehsildar, have misstated things about, the preparation of the seizure and stated that their statements were recorded on the. very same day. He has further deposed that if any other witness has stated anything contradictory to the prosecution story, they have spoken lie. In cross examination, the defence counsel has put all the statements of other witnesses recorded till then to the witness. In reply, the witness has actually stated that they have misstated the things and have lied. 16. The prosecution witness No. 12, namely, Shakeel Ahmad, has stated that he received 48 packets sealed in a cloth with three intact seals marked as A1 to A4 through ASI. All samples were subjected to analysis and Charas was detected in all the samples. He has specifically stated that he did not know whether the packets sent to him were the actual packets recovered or samples of the said seized articles. 17. We have heard learned counsel for the parties at length, have carefully perused the record of the trial Court and scanned the entire evidence minutely and considered the arguments advanced at the Bar by learned counsel for the parties. We are convinced that the prosecution has failed to bring home the guilt to the accused for the following reasons. 18. We have heard learned counsel for the parties at length, have carefully perused the record of the trial Court and scanned the entire evidence minutely and considered the arguments advanced at the Bar by learned counsel for the parties. We are convinced that the prosecution has failed to bring home the guilt to the accused for the following reasons. 18. It was mandatory on the part of Investigating Officer/the SHO to take down in writing the information, alleged to have been received at the Police Station through reliable source, and send the same to his superiors within seventy two hours. It would be profitable to reproduce Section 42(1)(2) of the NDPS Act hereunder: "42. Power of entry, search, seizure and arrest without warrant or authorisation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence..... (2) Where an officer takes down any information in writing under sub-section (1) of records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior." The Investigating Officer has nowhere stated either in the Case Diaries or in his statement tendered before the Court that he has complied with the aforesaid mandatory provision of NDPS Act. We are supported in our aforesaid view by the judgments of the apex Court in Kishan Chand v. State of Haryana, 2013 AIR SCW 210, and Sukhdev Singh v. State of Haryana, 2013 AIR SCW 312. We are supported in our aforesaid view by the judgments of the apex Court in Kishan Chand v. State of Haryana, 2013 AIR SCW 210, and Sukhdev Singh v. State of Haryana, 2013 AIR SCW 312. In Kishan Chand v. State of Haryana (supra), the apex court has observed and held as under: "16. We are unable to contribute to this interpretation and approach of the Trial Court and the High Court in relation to the provisions of sub-sections (1) and (2) of Section 42 of the Act. The language of Section 42 does not admit any ambiguity. These are penal provisions and prescribe very harsh punishments for the offender. The question of substantial compliance of these provisions would amount to misconstruction of these relevant provisions. It is a settled canon of interpretation that the penal provisions, particularly with harsher punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The doctrine of substantial compliance cannot be called in aid to answer such interpretations. The principle of substantial compliance would be applicable in the cases where the language of the provision strictly or by necessary implication admits of such compliance. 19. The provisions like Sections 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in the case of Karnail Singh (2009 AIR SCW 5265) (supra) carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds. 22. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trail. It will be opposed to very essence of criminal jurisprudence, if upon apparent and admitted non-compliance of these provisions in their entirety, the Court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevancy. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance of the provision." In Sukhdev Singh v. State of Haryana (supra) the apex Court at paragraphs 8,21, 22 and 24 of the judgment has held as under: "8. It is clear from the statement of PW1 that he, upon receiving the secret information, neither reduced the same in writing nor communicated to his senior officer about receiving the secret information, as required under Section 42 of NDPS Act. 21. As per the statement of PW 1, no effort was made by him to reduce the information into writing and inform his higher authorities instantaneously or even after a reasonable delay which has to be explained with reasons in writing. On the contrary, in the present case, the Investigating Officer PW 1 had more than sufficient time at his disposal to comply with the provisions of Section 42. Admittedly, he had received the secret information at 11.30 a.m., but he reached the house of the accused at 2 p.m. even when the distance was only 6 kilometers away and he was in a jeep. There is not an iota of evidence, either in the statement of PW 1 or in any other documentary form, to show what the Investigating Officer was doing for these two hours and what prevented him from complying with the provisions of Section 42 NDPS Act. 22. There is patent illegality in the case of the prosecution and such illegality "is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purpose of the provisions of Section 42 which can broadly be stated are that: (a) it is a mandatory provision which ought to be construed and complied strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery. 24. Thus, the present appeal merits grant of relief to the accused. 24. Thus, the present appeal merits grant of relief to the accused. We accordingly set aside the judgment of the High Court as well as the Trial Court and acquit the accused of an offence under Section 15 of NDPS Act. We direct the accused to be set at liberty forthwith, if not required in any other case." The law is thus clearly established that when there is non-compliance with provisions of Section 42 of the NDPS Act, such defect is incurable and the accused is liable to be acquitted. 19. Next, it is seen that the police has asked the accused to opt for search in terms of Section 50 of the NDPS Act. It provides that the accused has to be asked as to whether he would wish to be searched by a Magistrate or a Gazetted Officer and not by a Police Gazetted Officer. In the instant case, it has come in evidence that the accused was not informed of his rights under Section 50 of the NDPS Act. The provision of Section 50(1) makes it imperative on the concerned Police officer, authorized under sections 41,42 and 43 of the Act to conduct search, to inform the person concerned about the existence of his right that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate. Admittedly, compliance with the aforesaid provision of law is wanting in the case. The apex Court in Suresh v. State of Madhya Pradesh, 2012 AIR SCW 6495 at paragraphs 11 and 12 of the judgment has held as under: "11. The above Panchnama indicates that the appellants were merely asked to give their consent for search by the police party and not apprised of their legal right provided under Section 50 of the NDPS Act to refuse/to allow the police party to take their search and opt for being searched before the Gazetted officer or by the Magistrate. In other words, a reading of the Panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. In other words, a reading of the Panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. Merely asking them as to whether they would offer their personal search to him, i.e., the police officer or to gazetted officer may not satisfy the protection afforded under Section 50 of the NDPS Act as interpreted in Baldev singh's case. Further a reading of the judgments of the trial Court and the High Court also show that in the presence of Panchas, the SHO merely asked all the three appellants for their search by him and they simply agreed. This is reflected in the Panchnama. Though in Baldev Singh's case, this Court has not expressed any opinion as to whether the provisions of Section 50 are mandatory or directory but "failure to inform" the person concerned of his right as emanating from sub-section (1) of Section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. In Vijaysinh Chandubha Jadeja's case (supra), recently the Constitution Bench has explained the mandate provided under sub-section (1) of Section 50 and concluded that it is mandatory and requires strict compliance. The Bench also held that failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. The concept of substantial compliance as noted in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) were not acceptable by the Constitution Bench in Vijaysinh Chandubha Jadeja, accordingly, in view of the language as evident from the panchnama which we have quoted earlier, we hold that, in the case on hand, the search and seizure of the suspect from the person of the appellants is bad and conviction is unsustainable in law. 12. 12. We reiterate that sub-section (1) of Section 50 makes it imperative for the empowered officer to "inform" the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate, failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. We also reiterate that the said provision is mandatory and requires strict compliance." 20. The prosecution has also failed to establish and prove that the mandate of Section 57 of the NDPS Act was complied with. It is apt to reproduce Section 57 of the NDPS Act herein, which reads as under: "57. Report of arrest and seizure.- Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest of seizure to his immediate official superior." There is not even an iota of evidence to suggest, not to speak of proving it beyond reasonable doubt, that the mandate of Section 57 of the NDPS Act was complied with. Learned counsel for the respondents frankly admitted that investigating agency has. not complied with the mandate of this Section. Breach of the said mandatory provision is a ground for acquittal. My view is fortified by a judgement of the apex Court in Kishan Chand v. State of Haryana, 2013 AIR SCW 210. It will be useful to reproduce paragraph 24 of the judgement, which reads hereunder: 24. Reliance placed by the learned counsel appearing for the State on the case of Sajan Abraham ( AIR 2001 SC 3190 : 2001 AIR SCW 2970) (supra) is entirely misplaced, firstly in view of the .Constitution Bench judgment of this Court in the case of Karnail Singh (2009 AIR SCW 5265) (supra). Secondly, in that case the Court was also dealing with the application of the provisions of Section 57 of the Act which are worded differently and have different requirements, as opposed to Sections 42 and 50 of the Act. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requirement to be adhered to 'pre-search'. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requirement to be adhered to 'pre-search'. The question of sending it immediately thereafter does not arise in the present case, as it is an admitted position that there is total non-compliance of Section 42 of the Act. The sending of report as required under Section 57 of the Act on 20th July, 2000 will be no compliance, factually and/or in the eyes of law to the provisions of Section 42 of the Act. These are separate rights and protections available to an accused and their compliance has to be done in accordance with me provisions of Sections 42, 50 and 57 of the Act. They are neither interlinked nor inter-dependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases." 21. It emerges from the aforesaid reproduction that the prosecution has failed to prove that the Investigating Officer has complied with the mandate of Sections 51 and 52 of the NDPS Act and followed the procedure as per the prerequisites of Code of Criminal Procedure. 22. Adverting to the evidence adduced by the prosecution to bring home the guilt to the accused, we may at the outset say that the prosecution has miserably failed to prove the guilt of the appellant, particularly in view of the fact that one of the witness has deposed that three other persons, including the accused, were present at the relevant point of time in the shop. It is not the case of the prosecution that the recovery in question was made from the personal possession of the appellant. On the contrary, it is the positive case of the prosecution that the seized articles were recovered from the shop. There is no evidence on the file to the effect that the said articles were kept in the shop by the appellant. The prosecution has also failed to establish that it was not kept in the shop by other two persons who were present in the shop at the relevant point of time. There is no evidence on the file to the effect that the said articles were kept in the shop by the appellant. The prosecution has also failed to establish that it was not kept in the shop by other two persons who were present in the shop at the relevant point of time. Thus, it emerges that the prosecution has failed to prove that it was the appellant who had kept the seized articles in the shop or that the same were seized from his personal search, or that he was conscious of the contraband goods being in his shop. 23. There is also evidence on the file to the effect that the girl was conducting sale on the said shop and was a salesgirl. Prosecution has not excluded her involvement in the commission of crime. 24. Why prosecution has not cited that girl and other two persons who were present at the relevant point of time in the shop, as witnesses before the trial Court, is not understandable. In the given situation an adverse inference has to be drawn against the prosecution. The trial Court has failed to appreciate this aspect of the case. 25. The prosecution has furthermore failed to prove that the seized articles were in possession of the accused, not to speak of conscious possession, which is one of the ingredients to record conviction; The apex Court in Madan Lal v. State of H.P., (2003) 7 SCC 465 has discussed in detail the concept of words 'possession' and 'conscious'. Therefore, it cannot, by any standards be said that the prosecution had succeeded in bringing home guilt to the accused. 26. This Court also cannot lose sight of the fact that it is the prosecution story that the appellant has been running the vegetable shop for the last ten years. Prosecution has not brought anything on record to show that his past history had been suspicious. 27. The prosecution witnesses have contradicted each other. Naib Tehsildar, who is the star witness, has clearly deposed that he came to the spot when everything was concluded. The prosecution witnesses have not supported the prosecution story. Even Police officials cited as prosecution witness has not supported the prosecution version. It appears that some witnesses have turned hostile while as some have denied the prosecution story. Naib Tehsildar, who is the star witness, has clearly deposed that he came to the spot when everything was concluded. The prosecution witnesses have not supported the prosecution story. Even Police officials cited as prosecution witness has not supported the prosecution version. It appears that some witnesses have turned hostile while as some have denied the prosecution story. In the given facts and circumstances of this case, we are convinced that the prosecution has totally failed to prove the case against the appellant. 28. The prosecution has failed to establish that the maize corn cobs, or covering of the maize corn cobs and the bag were seized and produced in the Court. It is not established by evidence as to who stitched the bag containing the seized articles and where was the stitching done, and who sealed the bag thereafter. The seal has not been produced before the Court or before the expert of FSL. There is also no evidence to the effect that the seal was broken which was allegedly made on spot at the time of taking samples in presence of the Magistrate and thereafter resealing the seized articles. 29. In light of the above, we are of the opinion that the trial Court has not appreciated the evidence in its right perspective and has jumped over the conclusion by convicting the accused. 30. We, therefore, allow this appeal and set aside the judgment and order dated 23.11.2012 passed by the learned Principal Sessions Judge, Leh. As a corollary, the accused is acquitted of the charges and challan is dismissed. The appellant, imtiyaz Ahmad Tanga shall be released forthwith, provided he is not involved in any other offence. 31. The Registry to remit the record to the trial Court.