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2013 DIGILAW 366 (CHH)

Anil @ Kalu v. State of C. G.

2013-12-17

GOUTAM BHADURI

body2013
JUDGMENT Goutam Bhaduri, J. 1. Both the appeals arise out of the Judgment/order dated 19.10.2011 passed in Special Criminal Proceedings No. 04/2010 by Special Judge, Dhamtari, whereby the appellants have been convicted under Section 15(c) of the Narcotic Drugs Psychotropic Substance Act, 1985 (for short 'the NDPS Act') and sentenced to under go R.I. for 10 years and fine of Rs. 1,00,000/- each, in default of payment of fine, to further undergo R.I. for 3 years. Since the issues involved in both the cases are one and same and further looking to the identical evidence which has come on record, these appeals are being disposed of by this common order. The prosecution case in brief is that on 01.04.2010 at about 18.08 hours one Ramesh Sahu, who was working with District Crime Branch, Dhamtari as Assistant Sub Inspector was on his duty on patrolling at Dhamtari. During such patrolling, he received an information that Vimalchand Jain and Anil Wadhwani, were grinding Opium Poppy, Doda (Posta) in the house/mill of Vimalchand Jain. Having received such information, the panchnama was prepared as Ex./P-1 and the information was sent to Sub Divisional Officer (Police), Dhamtari by Ex./P-17. Thereafter, since search warrant could not be procured considering the urgency in the matter as such panchnama was prepared to this effect. The said Panchnama thereafter was sent through one constable Jamwant Deshmukh with a duty certificate to Sub Divisional Officer (Police) Office, Dhamtari. Thereafter, notice under Section 160 of Cr.P.C. was prepared and was sent through the Constable No. 51, Ghenuram Verma, to summon the independent witnesses at Panchwati Ratnabandha Basti. After sometime, Ghenuram came back and gave written notice that no independent witnesses were available. Therefore, the available staff i.e. Constable, Pradeep Singh, Ghenuram Verma, Jagdish Mirdha, Prahlad Banchor and Chottelal Sahu were prepared for raid. Subsequent to it, the house of Vimalchand Jain was cordoned and at the main door, the accused were called for. On such call, Vimalchand Jain and Anil Wadhwani came out of a room upto the main door. Then both the accused disclosed their name and thereafter they were apprised with the secret news that they are in illegal possession of Narcotic Drug of Doda (Posta) for sale. 2. The accused thereafter were apprised that the Police wanted to search the house and were explained about such search and notice was given. Then both the accused disclosed their name and thereafter they were apprised with the secret news that they are in illegal possession of Narcotic Drug of Doda (Posta) for sale. 2. The accused thereafter were apprised that the Police wanted to search the house and were explained about such search and notice was given. On such information, the accused agreed to get themselves searched by Shri Ramesh Sahu and had given a written consent for that and to this effect Panchnama was prepared. During the search in person of accused, no contraband materials were recovered in person, however, one mobile phone was found from Vimalchand Jain which was returned to him immediately. Thereafter, the accused were questioned and admitted the fact that inside the room near the grinder machine, 7 plastic bags of Doda (Posta) were kept which was being grinded to powder. On search of the room, 7 plastic bags of Doda (Posta) were recovered. The goods were immediately tested by smell, oral test and by burn and prima facie they were found to be Doda (Posta). Thereafter, the said Doda (Posta) was recorded in panchnama and was weighed and when they had measured, it was found that the total weight of the contraband Doda (Posta) kept in 7 bags was 101.450 kgs. worth Rs. 2,00,000/-. The accused were thereafter given a notice under Section 91 of Cr.P.C. so as to produce any license or permission for that. But the accused admitted that they don't have any document for same. The subject material then was seized. Subsequent to it, out of the bags, 50 gms. sample were taken out and were sealed and panchnama was prepared which was marked as A-A-1 to G-1-1 and all goods were taken into possession. Since, at that time, independent witness was not available as such the staff as ASI, Ramesh Sahu, Constable, Pradeep Singh & Prahlad Banchor were witnessed to the entire evidence and documentation. 3. The appellants/accused, Vimalchand Jain and Anil @ Kalu were arrested on 1.4.2010 at about 21.40 and 21.45 hours respectively. The reasons for arrest were explained to them and the map of the site was also prepared and in the spot itself the crime was registered without number so as to take cognizance of it. At the spot Dehati Nalishi Ex./P-28 was registered and the crime was numbered as 125/2010 under Section 15(c) of the NDPS Act. The reasons for arrest were explained to them and the map of the site was also prepared and in the spot itself the crime was registered without number so as to take cognizance of it. At the spot Dehati Nalishi Ex./P-28 was registered and the crime was numbered as 125/2010 under Section 15(c) of the NDPS Act. Thereafter, the FIR was prepared as Ex./P-20 and the seized sample were sent for examination to FSL at Raipur. The sample were deposited on 8.4.2010 subsequent to it notice was served to Rakesh Jain Lunia, the younger brother of Vimalchand Jain with particulars of the crime committed and he was asked to disclose the fact who is the owner of such land. After such notice to Rakesh Jain, notice was given to the Tehsildar by Ex./P-34 and as against such notice, the Tehsildar vide its report dated 10.05.2010 had given a copy of B-1 and Khasra. Subsequently, the license which was given to run the flour mill (Attachakki) to Arihant Jain and Vimalchand Jain was proved to be of Vimalchand Jain. The FSL report about the Doda was received by Ex./P-36 from Forensic Science Laboratory, Raipur. Lastly, after completing the investigation, the charge-sheet was filed under Section 15(c) of the NDPS Act. 4. During the trial the appellants denied the charges and raised the plea that they have been falsely been implicated and claimed to be tried. The defence was further raised by the accused that due to an earlier animosity and quarrel with Ramesh Sahu who was an A.S.I., on 01.04.2010 the accused have been falsely implicated in the case. During the trial, the prosecution in this case had examined 10 witnesses and exhibited 38 documents besides Article-A. Since there are two accused, both the accused have made their submissions through their respective counsels separately. 5. I have heard learned counsel for the parties at length and examined the entire records. 6. Learned counsel for appellant Anil @ Kalu in Criminal Appeal No. 825/2011 submits that the FSL report which has been proved by the prosecution is vague. He submits that the chemical report Ex. P-36 do not disclose the type of alkaloid. 5. I have heard learned counsel for the parties at length and examined the entire records. 6. Learned counsel for appellant Anil @ Kalu in Criminal Appeal No. 825/2011 submits that the FSL report which has been proved by the prosecution is vague. He submits that the chemical report Ex. P-36 do not disclose the type of alkaloid. It only shows that it is an opium alkaloid and therefore he further submits that the poppy straw and opium poppy had been differently and distinctly defined under the NDPS Act and therefore only by writing "opium alkaloid", this cannot be assumed that the contraband material which was seized had a positive chemical report. He further submits that there has been noncompliance of Section 42 of the NDPS Act and Section 42(2) mandates the information has to be sent to the immediate official superior but in this case it was not complied with as since Ramesh Sahu who was working as ASI, it should have been sent to Sub-Inspector who was the immediate boss. The next submission of the appellant is that the premises which was raided do not belong to this appellant and the prosecution has miserably failed in the task of establishing the ownership of the alleged house in the name of this appellant. Therefore, the criminal liability cannot be fastened upon this appellant. 7. On the whole, it was submitted that the prosecution has to show and establish the conscious possession of this appellant. He further submits that while the notice was given to the appellant vide Ex. P-25 the admission recorded on it, cannot be taken to be confession as the same was taken by the police, it cannot be held to be a confession. He further submits that this appellant was questioned u/s. 313 of Cr.P.C., the specific question was not put to him that he was in conscious possession of the contraband and therefore in absence of that he has suffered a great prejudice in the case. 8. Similarly, counsel for accused Vimal Chand Jain in Cr. A. No. 922/2011 adopting arguments of appellant Anil Wadhwani @ Kalu submits that the grounds which were raised by the appellant Anil is available to him and adopted the same and apart from that he further raised suspicion about the commission of crime. 8. Similarly, counsel for accused Vimal Chand Jain in Cr. A. No. 922/2011 adopting arguments of appellant Anil Wadhwani @ Kalu submits that the grounds which were raised by the appellant Anil is available to him and adopted the same and apart from that he further raised suspicion about the commission of crime. He further submits that the patrol party of Crime Branch left at 9.40 a.m., and when it reached Panchwati colony at about 3.10 p.m., it has got information about the contraband and the Panchnama was prepared. He further attacking the timing shown in Ex. P-1, P-2, & P-4 submits that at about 16.50 hours and in next in 10 minutes, the contraband was found and it took 15 minutes to weigh the contraband. Since memo was recorded at 18.05 hours, the way in which the time was calculated shows that false case has been made against this appellant. He further submits that the patrol party proceeded to raid premises without warrant and the concerned officer did not record his own reasons though they have informed time to get warrant from the competent authority, therefore, there is clear violation of Section 41 and the proviso thereof. He submits that everything was preplanned and the officer R.K. Sahu has also falsely implicated the appellant under the conspiracy. He further submits that the measurement Panchnama has not been signed by the person who measured it especially when they had enough time to do it and the weighing scale has also not been produced before the learned trial Court. 9. He further submits that the place of incident was not identified beyond reasonable doubt as it is situated at Khasra No. 277 at village Ratnabandha whereas none of the documents have been submitted by the police or the appellants to indicate the ownership of the building where the contraband was recovered, as such the appellant cannot be said to be in the conscious possession of the alleged contraband. He further submits that notice is not contemplated u/s. Section 50 when the premises is searched, but since the police had given the notice and recorded the confession it would reflect prejudice of the investigating officer harboring against this appellant. 10. He further submits that notice is not contemplated u/s. Section 50 when the premises is searched, but since the police had given the notice and recorded the confession it would reflect prejudice of the investigating officer harboring against this appellant. 10. He further submits that as the Station Officer did not make any physical verification of the article seized as well as the seal and samples and also did not put his own seal, therefore, it was a clear violation of Section 55 of the Act. He further submits that when the sample articles were to be taken to the FSL were handed over to the constable, his signatures were not obtained and therefore that also creates a doubt. He submits that the seal was not produced before the Court and the shape of the seal was also not mentioned in the receipt. It is further submitted that the report of the laboratory was received on 14.06.2010 but the articles were submitted on 03.12.2010. He submitted that the samples examined after two months of the deposit and were in safe custody of the laboratory have not been proved. Therefore, serious flaw is made out which makes dent on the prosecution case and hence, he prays for setting aside the impugned judgment of the learned court below. 11. In order to examine the evidence which has come on record I feel it necessary to examine the evidence of P.W. 9 Ramesh Sahu, Asst. Sub-Inspector, who was the author of the entire proceedings. This witness has stated that he was working in Crime Branch, Dhamtari from March 2008. He further submits that he alongwith other staff Pradeep Sori, Bhenu Verma, Dinu Markende, Prahlad Banchhore was on patrol duty and started at 9.40 a.m., from police station on 01.04.2010. This was recorded as Rosnamcha Sanha No. 22 and the same is exhibited as Ex. P-23-C. While they were on patrolling duty, he received an information that the appellants are grinding the poppy and have kept the same in their premises. On receipt of such information, it was recorded in Ex. P-1 which is Mukhbir Panchnama, the same is also signed by him as also by P.W. 1 Head Constable Pradeep Singh who was also with him. After receipt of such Mukhbir Panchnama, the information of the same was passed on to Dy. S.P., Dhamtari through P.W. 6 Jamwant Deshmukh vide Ex. P-17. Ex. P-1 which is Mukhbir Panchnama, the same is also signed by him as also by P.W. 1 Head Constable Pradeep Singh who was also with him. After receipt of such Mukhbir Panchnama, the information of the same was passed on to Dy. S.P., Dhamtari through P.W. 6 Jamwant Deshmukh vide Ex. P-17. Ex. P-17 also endorses that the same was received by P.W. 3 Kumbkarn Netam who in turn says that he has received the information from Jamwant in the office of Dy. S.P., and he gave acknowledgement. The endorsement also contains that since Dy. S.P., was out of office, therefore, it was handed over to the reader to Dy. S.P., by the carrier. 12. P.W. 9 Ramesh Sahu has further stated that thereafter notices were sent to the independent witnesses to appear which was marked as Ex. P-19 but the witness states that the independent witness could not be found and therefore, the police staff itself were made witnesses and the Panchnama was prepared by Ex. P-2. Ex. P-2 is with respect to the notice u/s. 42(2) of the NDPS Act. Both the Ex. P-19 and P-2 reflect that the efforts were made to call the independent witnesses. The same fact has also been corroborated by P.W. 4 Bhenu Ram Verma to the effect that he could not get any independent witness which was reported to ASI. The said witness Bhenuram Verma has further stated that he tried to get an independent witness but people refused to cooperate and ultimately all efforts to get an independent witness failed. P.W. 9 has further stated that after preparation of search warrant, Panchnama was prepared vide Ex. P-2 and thereafter, he alongwith other staff reached to the house of Vimal Chand Jain situated at College Road. After reaching there, the house was cordoned off and at the main door, the call was made. On such call being made, accused Vimal Chand Jain and Anil Wadhwani came out from the room through the main door and disclosed their identity. Thereafter, the accused were appraised about the Mukhbir Panchnama and it was explained that the police wanted to make search of the house. During search, they were also explained the fact that if the accused so desires then they can get themselves searched by any gazetted officer or the nearest Magistrate. Thereafter, the accused were appraised about the Mukhbir Panchnama and it was explained that the police wanted to make search of the house. During search, they were also explained the fact that if the accused so desires then they can get themselves searched by any gazetted officer or the nearest Magistrate. So the notice u/s. 50 of NDPS Act was served to them which is marked as Ex. P-3. Ex. P-3 is also proved by this witness as also P.W. 1. The witness has further submitted that thereafter the accused had given their consent for search vide Ex. P-24 which bears the signatures of both the appellants and the consent letter was written by Vimal Chand Jain himself and is also signed by him. 13. Subsequently, the police party got themselves searched by the accused and the Talasi Panchnama was marked as Ex. P-4. Subsequently, the search was made and it was found that near the grinding machine Doda was found in 7 bags and out of 7, 5 were kept in white coloured bag, one in Sky blue and one in yellow bag. The Panchnama was prepared vide Ex. P-5. This also bears the signature of accused and the witnesses. The same is also signed by P.W. 1 and proved by this witness. On having found such poppy initially, the same was tested by smell, burn and by taste before the witnesses and prima facie it was found to be Doda which was recorded in Ex. P-6 and signed by this witness as also by the accused. Lengthy cross examination of P.W. 9 was made to ascertain as to how this witness confirmed the fact that on initial test it was found to be Doda. In reply, the witness has deposed that on the basis of his experience, he has confirmed it to be a Poppy (Doda). Further more, a perusal of Ex. P-6 would reflect that the same is signed by accused itself and in the cross examination, to negate it no substantive question was putforth, therefore, prima facie finding that it was a poppy is established. 14. P.W. 9 further submits that weighment machine was also recorded in Panchnama vide Ex. P-7 and it was also signed by the accused and the witnesses which was physically verified and thereafter the contraband was measured. On weighment being done. 14. P.W. 9 further submits that weighment machine was also recorded in Panchnama vide Ex. P-7 and it was also signed by the accused and the witnesses which was physically verified and thereafter the contraband was measured. On weighment being done. It was found that the contraband (Doda powder) filled in six bags was weighed 90 Kgs., & 100 grams and the contraband in yellow bag contained 9 Kgs. 350 grams, therefore, the total Poppy was found to be 1 quintal 450 grams. Thereafter, from such bags, samples of 50 grams each was collected in polythene packets which were filled in a cloth bag. The samples were sealed and marked as A, A-1, and G, G-1. The same is recorded in Ex. P-8. 15. P.W. 4 Bhenu Ram Verma has deposed that he has weighed the seized contraband and collected samples of 50 grams each from each bag and sealed them. Therefore, seizure of Doda and its physical verification as also collecting samples do not come under any doubt. The collection of samples and seal of the bags especially have been proved by P.W. 9 Ramesh Sahu and is corroborated by P.W. 1 Pradeep Singh and P.W. 4 Bhenuram Verma. P.W. 9 Ramesh Sahu has further stated that thereafter the accused was served with a notice u/s. 91 Cr.P.C. to furnish any document or licence which justifies such possession. The said notice was marked as Ex. P. 25. In the notice, the accused had written in their own writing that they do not have any document for grinding or to have possession of the same. So ultimately from the possession of the appellants, the Machine and its accessories alongwith all bags of contraband having different weights were seized by seizure memo Ex. P. 10. The seal was also put on Ex. P-10 at the back of it. The said seizure is further corroborated by Pradeep Singh (P.W. 1). 16. The witness has further stated that thereafter, the search in person of the accused was made and on such search, one Nokia mobile was recovered from Vimal Jain and a Motorola Mobile was recovered from Anil Wadhwani, which was marked as Ex. P-9 on Jama Talasi. The witness has further stated that the map of the area was also prepared by Ex. P-13 and Dehati Nalishi was registered which was proved as Ex. P-28. P-9 on Jama Talasi. The witness has further stated that the map of the area was also prepared by Ex. P-13 and Dehati Nalishi was registered which was proved as Ex. P-28. Subsequently, the accused alongwith properties which were seized were taken to the Police Station and the seized articles were deposited with the Mal Moharrir and receipt was obtained. After completion of the entire proceeding, in writing, it was recorded in the Rosnamcha Sanha and which is proved as Ex. P-29-C and the entire proceeding were recorded and were sent through constable Bhenu Verma to the Dy. S.P., on 02.04.2010. The carbon copy of the same was marked as Ex. P-18. The witness has thereafter stated that after this entire proceeding, further the matter was handed over to Sub-Inspector D.S. Netam who is examined as P.W. 10 in this case. 17. D.S. Netam (P.W. 10) has stated that he has registered a case against the appellants vide Ex. P-20 which bears his signature as also the constable Deenu Markende. He has further stated that Ex. P-20 which is registration of Crime was also recorded in Rosnamcha Sanha which was proved as Ex. P-30(C). This witness has further stated that he had given memo to Tahsildar, Dhamtari to give the map of the place of incident, which is corroborated by the document (Ex. P-23). He has further stated that on 07.04.2011 one Neel Kamal Tripathi bearing No. 97 was deputed to carry samples of the seized Doda to submit it to the FSL Raipur which was recorded in Sanha No. 25. The Transit Sanha was marked as Ex. P-31 and photocopy thereof is marked as Ex. P-31'C'. He further states that the said constable deposited the article at FSL and returned on 08.4.2010 along-with acknowledgement. His return from FSL was recorded in Sanha No. 26 which was exhibited as Ex. P. 32, photocopy thereof is Ex. P-32'C'. 18. The witness has further stated that on 14.04.2010 notice was served to Rakesh Jain Lunia who was the elder brother of accused Vimal Jain and informing about the entire crime, he was asked to submit the ownership record of such land and subsequently the Tahsildar was also asked to submit the documents with respect to the ownership which is proved vide Ex. P-34 and in response thereto, the Tahsildar had given the certified copy of the Form B-1 and Form B-2 relating to Panchsala Khasra, which was placed in the case. He has further stated that on 18.05.2010, the Sub-Engineer of Electricity Department was given a notice by Ex. P-35 in connection with licence of the Floor Mill which was being run by Vimal Jain and Arihant Jain, and in response thereto, the sub-engineer office had submitted the licence which was proved as Article A. The Article A contains the documents of Electricity Board in the name of Arihant Atachakki showing the proprietor as Vimal Chand Jain. All the documents have been proved by the accused. The witness has further stated that the FSL report which was received from the laboratory is marked as Ex. P-36 which confirms that the article which was sent for examination was containing opium alkaloid. 19. Now the argument which is advanced that Ex. P-36 does not show that it does not prove the contraband. In this respect, Section 2(xv) defines opium whereas Section 2(vii) defines "Opium poppy" which read as under: 2(xv) "Opium" means-- (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 percent of morphine: 2(xii) "Opium Poppy" means-- (a) the plant of species Papaver somniferum L; and (b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act; 20. In this case, the argument advanced that the seized articles were not opium poppy as the same has not been mentioned do not support the argument of the appellants. The "opium poppy" is defined to mean the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted. If we go through the FSL report, it reveals that the samples were containing opium alkaloid. Further more, the same was not questioned during the trial. In this aspect, section 293 of Cr.P.C., is; relevant here and quoted hereinbelow: 293. If we go through the FSL report, it reveals that the samples were containing opium alkaloid. Further more, the same was not questioned during the trial. In this aspect, section 293 of Cr.P.C., is; relevant here and quoted hereinbelow: 293. Reports of certain Government scientific experts.--(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) ................. (3) ................. (4) ................. Therefore, the argument advanced at the appellate stage questioning the validity of such report will not come to any aid of the appellants. 21. Now another question which was advanced by both the appellants that there has been a non-compliance Section 42(2). Hon'ble the Supreme Court in Karnail Singh Vs. State of Haryana (2009) 8 SCC 539 while laying down the principle about the compliance of section 42(1) and 42(2) held thus in Para. 35: 35. In conclusion, what is to be noticed is that Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513 did not require literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham v. State of Kerala (2001) 6 SCC 692 hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001. 22. In the case in hand, if we look into the statements of P.W. 9 Ramesh Sahu, & P.W. 1 Pradeep Singh, they have categorically stated that one constable Jamwant (P.W. 6) was sent to Dy. S.P., along-with duty certificate which is proved as Ex. P-17. P.W. 6 Jamwant has also stated that he has delivered the information of Mukhbir Panchnama at the office of Dy. S.P., which also bears his signature. The same is also corroborated by P.W. 3 Kumbkarn Netam who has stated that on 01.4.2010, he had received the information (Dak) through Jamwant Desmukh and on receipt of such information, he gave acknowledgement vide Ex. P-17. P.W. 3 has further stated that he also received Dak from Bhenu Ram Verma (P.W. 4) regarding entire proceeding for which he gave acknowledgement vide Ex. P-18. So on examination of P.W. 1, P.W. 3, P.W. 4, P.W. 6 & P.W. 9 it is amply clear that information was received at the office of Dy. S.P. Since he was not present in the office, in order to avoid disappearance of evidence and doing away with the property, the raid was conducted. Therefore, the compliance of section 42(1) is satisfied as the copy was sent to the superior officer. The argument which is advanced that the information should be handed over in person to the Superior Officer has no force and cannot be entertained at all. On examination of evidence, it is amply clear that there has been a sufficient compliance of section 42 of the NDPS Act. 23. Further argument advanced by the appellants is with respect to the Document Ex. P-25 which is a notice given by the I.O., whereby they were required to produce the necessary documents and wherein the confession was recorded of both the appellants. The learned counsel, therefore, submits that the endorsement cannot be taken to be a material confession that the seized article was Doda. In this context, if we look at Para 25 of the judgment of the lower Court, it has held that since it was written by the accused on Ex. The learned counsel, therefore, submits that the endorsement cannot be taken to be a material confession that the seized article was Doda. In this context, if we look at Para 25 of the judgment of the lower Court, it has held that since it was written by the accused on Ex. P-25, therefore, it was further taken to be an admission that they are in possession of the contraband goods. To my appreciation, this cannot be held to be correct. The endorsement made by the accused over Ex. P-25 cannot be taken to be an admission of the fact or confession that they were in possession of the contraband. Section 67 of the NDPS Act is relevant here at this stage, which reads thus: 67. Power to call for information, etc.--Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,-- (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. 24. Hon'ble the Supreme Court in UOI Vs. Bal Mukund & others 2009 SAR (Criminal) 385, has held in paras 27, 28, 34, 35, 37 as under: 27. Exhibits 20 & 21 categorically show that they were interrogated. If they were interrogated while they were in custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken. 28. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken. 28. This Court in D.K. Basu v. State of West Bengal ( (1997) 1 SCC 416 ) laid down the law that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. This rule was also invoked by a Constitution Bench of this Court in State of Punjab v. Baldev Singh ((1993) 3 SCC 977) wherein it was held: 28. This court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that matter. As Page 2956 already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose - to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, as insistence on compliance with all the safeguards contained in Section 50 may result in more acquittal does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed in every case the end result is important but the means to achieve, it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. 34. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. 34. Reliance has also been placed on Kanhaiyalal v. Union of India ( (2008) 4 SCC 668 ). In that case no question was put in cross examination to the police officer (P.W. 9) whose evidence had been relied upon by the High Court and thus, his evidence was stated to be corroborative of the statement made by the accused. However, it is interesting to note that in Francis Stanly Alias Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram ((2006) SCC 210), this Court opined: 15. We are of the opinion that while it is true that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act, may not be hit by Section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny, than a confession made to private citizens or officials who do not have investigating powers under the Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required. 16. We have carefully perused the facts of the present case, and we are of the opinion that on the evidence of this particular case it would not be safe to maintain the conviction of the appellant, and he must be given the benefit of reasonable doubt. 37. In Noor Aga (supra), this Court held that whether the confession was made under duress or coercion and/or voluntary in nature should be considered having regard to the facts and circumstances of each case. It was opined: 102. Section 25 of the Evidence Act was enacted in the words of Mehmood, J. in Queen Empress v. Babulal ILR (1884) 6 All. 509 to put a stop to the extortion of confession, by taking away from _ the police officers as the advantage of proving such extorted confession during the trial of accused persons. It was, therefore, enacted to sub-serve a high purpose. 113. 509 to put a stop to the extortion of confession, by taking away from _ the police officers as the advantage of proving such extorted confession during the trial of accused persons. It was, therefore, enacted to sub-serve a high purpose. 113. Even otherwise Section 138B of the 1962 Act must be read as a provision containing certain important features, namely: (a) There should be in the first instance statement made and signed by a person before a competent custom official. (b) It must have been made during the course of enquiry and proceedings under the Customs Act. 114. Only when these things are established, a statement made by an accused would become relevant in a prosecution under the Act. Only then, it can be used for the purpose of proving the truth of the facts contained therein. It deals with another category of case which provides for a further clarification. Clause (a) of Sub-section (1) of Section 138B deals with one type of persons and Clause (b) deals with another. The Legislature might have in mind its experience that sometimes witnesses do not support the prosecution case as for example panch witnesses and only in such an event an additional opportunity is afforded to the prosecution to criticize the said witness and to invite a finding from the court not to rely on the assurance of the Court on the basis of the statement recorded by the Customs Department and for that purpose it is envisaged that a person may be such whose statement was recorded but while he was examined before the Court, it arrived at an opinion that is statement should be admitted in evidence in the interest of justice which was evidently to make that situation and to confirm the witness who is the author of such statement but does not support the prosecution although he made a statement in terms of Section 108 of the Customs Act. We are not concerned with such category of witnesses. Confessional statement of an accused, therefore, cannot be made use of in any manner under Section 138B of the Customs Act. Even otherwise such an evidence is considered to be of weak nature. We are not concerned with such category of witnesses. Confessional statement of an accused, therefore, cannot be made use of in any manner under Section 138B of the Customs Act. Even otherwise such an evidence is considered to be of weak nature. Therefore, applying such analogy, the endorsement which is recorded cannot be taken to be a confessional statement and admission of the guilt that the accused appellant were in possession of Poppy (Doda) without any valid document cannot be the basis for conviction. 25. In view of this, the finding given by the learned court below in Para. 25 that the accused have admitted their guilt by recording their endorsement on the notice (Ex. P-25) in their own writing that they have no document to keep, sell or grind the contraband is illegal and the findings in this para are set aside. 26. The other argument is that there has been non compliance of Section 55 of the NDPS Act and the search and seizure officer never produced the seized article in the custody. In this aspect, it is relevant to examine statement of P.W. 10 who has stated in para 3 that on 07.04.2010 constable Neel Kamal Tripathi bearing No. 97 was entrusted with the samples of 50 grams so as to deposit the same at FSL, Raipur. The same was recorded in Rosnamcha Sanha Ex. P-31-C. He has further stated that the said Neel Kamal Tripathi deposited such packets at FSL and returned on 08.04.2010 and Gave the acknowledge receipt of FSL in the police station which was recorded in Rosnamcha sanha No. 26 vide Ex. P32, photocopy of which is marked as Ex. P-32-C. The said Neel Kamal Tripathy has also been examined as P.W. 2. He has corroborated the fact that on 07.04.2010, 14 samples were collected by him and deposited at FSL, Raipur and after depositing the same, he obtained acknowledgement receipt from FSL Raipur vide Ex. P-16 and deposited the said receipt in the police station. Ex. P-16 also corroborates the same fact. 27. In this respect, head constable Prakash Nag (P.W. 7) who was also incharge of Malkhana has corroborated the fact that he has received the contraband in 7 packets of different weights which in total were weighing 101 Kg 450 grams of Doda powder and after receipt of the same, he had given acknowledgement vide Ex. P-21. 27. In this respect, head constable Prakash Nag (P.W. 7) who was also incharge of Malkhana has corroborated the fact that he has received the contraband in 7 packets of different weights which in total were weighing 101 Kg 450 grams of Doda powder and after receipt of the same, he had given acknowledgement vide Ex. P-21. The same was also registered in the Malkhana register and the contraband was kept in the safe custody of Malkhana. He has further stated that the entry in the Malkhana register was made by this witness and the same is proved as Ex. P-22 and the photocopy is enclosed as Ex. P-22-C. He again corroborated he fact that the samples were collected and were given to Neel Kamal Tripathi on 07.04.2010 which were deposited by Neel Kant Tripathi at FSL, Raipur, on 08.04.2010 and acknowledgement thereof was given in the police station. Thereafter, the goods were deposited through constable Ram Krishna Sahu in the Malkhana of the court which is also recorded in the Rosnamcha Sanha. 28. Further more, both these witnesses have been categorically cross examined on this issue. A perusal of the statement shows that with all vehemence, this issue was not raised before the trial Court by the accused. On close scrutiny of these witnesses, I am of the opinion that the Police has taken over the charge of article which was seized and it was subsequently deposited in the Malkhana and thereafter the samples were taken over from the Malkhana and was deposited at FSL. Further after filing of challan the goods were also deposited in the Malkhana of the Court. 29. In absence of any cross examination the Court cannot infer such assumption at the behest appellant accused, more so, the said ground was not taken before the trial Court and for the first time, the fact was raised in appeal. Even otherwise, reading of the evidence goes to show that necessary compliance was made under section 55. In view of this the ground raised by the appellants do not have any force at this stage. 30. The appellants have further submitted that the independent witnesses have not been examined and have not supported the fact of seizure about the contraband goods. In view of this the ground raised by the appellants do not have any force at this stage. 30. The appellants have further submitted that the independent witnesses have not been examined and have not supported the fact of seizure about the contraband goods. As against this, if we examine the statement of P.W. 9, he has categorically stated that after receiving the information that the accused are in possession of the contraband goods, independent witnesses were called through one constable Bhenu Verma. Bhenu Verma after some time came back and reported that Independent witnesses were not available. P.W. 4 Bhenu Verma also corroborated the same fact that when he went to search out for independent witnesses at Panchwati colony, Ratnabandha and requested the people about to cooperate. But he could not get any independent witnesses and as such came back and reported the matter vide Ex. P-19, therefore, in sum and substance, the independent witnesses could not be procured by the prosecution. 31. Hon'ble the Supreme Court in case of Jarnail Singh Vs. State of Punjab (2011) 3 SCC 521 has laid down that if the prosecution had offered the plausible explanation with regard to non joining of the independent witnesses, it will not be fatal. The Court has held that when the prosecution has explained the non-joining of the witnesses, the same cannot be the sole ground to ignore the evidence of the prosecution. Further in Sumit Tomar Vs. State of Punjab (2013) 1 SCC 395 , it has been laid down by the Supreme Court in para 10 as under: ........, we hold that though it is desirable to examine an independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statements cannot be faulted with. On the other hand, the procedure adopted by the prosecution is acceptable and permissible, particularly, in respect of the offences under the NDPS Act. Accordingly, we reject both the contentions. Therefore, in this case, though the independent witnesses have not been examined, the same has been explained by the prosecution and as such the evidence led by the prosecution cannot be held to be untrustworthy for want of independent witnesses. Accordingly, we reject both the contentions. Therefore, in this case, though the independent witnesses have not been examined, the same has been explained by the prosecution and as such the evidence led by the prosecution cannot be held to be untrustworthy for want of independent witnesses. Before the trial Court, trial was conducted against the two accused and they were convicted while in appeal, these accused have filed separate two separate appeals and therefore, the arguments have been separately advanced by Anil Kumar Wadhwani in Cr. A. No. 825/2011. 32. Now the other question which arises for consideration on this issue on which both the appellants have advanced different set of arguments as regards the exclusive possession since the contraband was seized from the house of Vimalchand Jain. With respect to ownership, to show the conscious possession, the different grounds are urged as against that of Vimal Chand Jain whose appeal bears Cr. A. No. 922/2011. 33. So far as Criminal Appeal No. 825/2011 filed by Anil Wadhwani @ Kalu, his counsel submits that establishing the ownership of the alleged premises in the name of accused persons is sine quo non in order to fasten the accused persons with the criminal liability. It is further submitted that the prosecution has miserably failed in the task of establishing the ownership of the alleged house in the name of appellant namely Anil Wadhwani. In this aspect, the law laid down by the Supreme Court Omprakash @ Baba Vs. State of Rajasthan 2009 Cr. L.R. SC 880 is relevant here and quoted below: 7. A bare perusal of the evidence aforementioned would reveal that the ownership and possession of the house and the place of recovery is uncertain. As a matter of fact, P.W. 3 has categorically stated that the house from where the recovery had been made belonged to one Durga Bhanji and not to the appellant. Even assuming for a moment that the house did belong to the appellant and was in his possession, the prosecution was further required to show the appellant had exclusive possession of the contraband as a very large number of persons including the appellant and five of his brothers, their children and their parents were living therein. Admittedly, there is no evidence as to the appellants exclusive possession. In this situation, we find that the judgment cited by the learned counsel that is Mohd. Admittedly, there is no evidence as to the appellants exclusive possession. In this situation, we find that the judgment cited by the learned counsel that is Mohd. A. Khan's case fully supports the plea on behalf of the appellant, we observe that in addition to the ocular evidence, the prosecution had also put on record a document pertaining to the ownership of the house, but despite this, the Court held as under: The prosecution did not bother to produce any independent evidence to establish that the appellant was the owner of the flat in question by producing documents from concerned Registrar's office or by examining the neighbours. No statement has been made by the prosecution that in spite of the efforts taken by them, they could not produce the document or examine the neighbours to prove the ownership of the appellant relating to the flat in question. It is relevant to note here that two independent witnesses attested the Panchnama. Only one of them was examined as P.W.-5 who did not support the prosecution version and therefore was treated as hostile. In this case except the retracted statements of the appellant to connect the appellant with the house in question, no other independent evidence is available to sustain the finding of the learned Special Judge extracted in the beginning and confirmed by the High Court. 8. To our mind the afore-quoted observations clearly support Mr. Bhatti's argument. We find that there is no evidence on record to prove the appellants ownership and possession of the premises and the contraband in question. 34. Further reliance has been placed in Mohd. Alam Khan Vs. Narcotics Control Bureau and another AIR 1996 SC 3033 , wherein Hon'ble the Supreme Court has held that in order to fasten with the criminal liability, the ownership and possession of the premises should have been proved. When the recovery is made from the premises, the Supreme Court has laid down the analogy that the prosecution has to prove that the accused has to be the owner and is in actual possession of the said building. Further, Hon'ble the Supreme Court in Ram Singh Vs. Central Bureau of Narcotics (2011) 11 SCC 347 has held in Paras 24 & 25 as under: 24. Further, Hon'ble the Supreme Court in Ram Singh Vs. Central Bureau of Narcotics (2011) 11 SCC 347 has held in Paras 24 & 25 as under: 24. It is trite that to hold a person guilty, possession has to be conscious control over the goods is one of the tests to ascertain conscious possession so also the title. Once an article is found in possession of an accused, it could be presumed that he was in conscious possession. Possession is a polymorphous term which carries different meaning in different context and circumstances and, therefore, it is difficult to lay down a completely logical and precise definition uniformly applicable to all situations with reference to all the statutes. A servant of a hotel, in our opinion, cannot be said to be in possession of contraband belonging to his master unless it is proved that it was left in his custody over which he had absolute control. 25. Applying the aforesaid principle when we consider the facts of the present case it is difficult to hold that opium was in possession of the appellant. There is no evidence on record to suggest that the appellant was in occupation of the room from where opium was recovered. Further the evidence clearly points out that title to the opium vested in the owners of the hotel. The confession given by the appellant was only that he was servant of the owners of the hotel from where the opium was recovered. In the face of the state of evidence it is difficult to hold that the appellant was in conscious possession of the opium. Section 18 of the Act prescribes punishment for possession and that possession, in our opinion, has to be conscious. In the facts of the present case it is difficult to hold that the appellant was in possession of the opium and therefore, his conviction and sentence cannot be sustained. 35. Now if we examine the evidence of official witnesses the same is dealt with by the learned court below at Para 39 of its judgment wherein the Court has relied on the statements of P.W. 9 Parmesh Sahu, the I.O., P.W. 1 Pradeep Singh and P.W. 5 Deenu Markendey who have deposed that when the call was made, Vimal Jain and Anil Wadhwani came out from the main door of the room and disclosed their names. In this aspect, if we examine the statement of P.W. 8 namely Ratnu Ram Vishwakarma who was a Patwari of the area it would further show that in compliance of the order of Tahsildar, he had prepared site map which was proved as Ex. P-14 and the Panchnama of the site was prepared by him which was marked as Ex. P-15. He has stated that the grinding machine was kept in the room which was shown in red mark in Ex. P-14. P.W. 4 Bhenu Verma who was also present at the time of raid has stated in para 8 of his statement that at the time when the raid was made no one was present except the appellants. In para 10 of cross examination, P.W. 4 has further stated in Para 10 that the house wherein the seizure was made does not belong to Anil Wadhwani but belongs to Vimal Chand Jain. Similar statement has been made by P.W. 9 Ramesh Sahu who has stated in para 17 and admitted the suggestion that the place where the raid was conducted and the seizure was effected, belongs to Vimalchand Jain but has volunteered the fact that Anil Wadhwani was also present at the spot. 36. During the trial, the prosecution has produced the bunch of documents which was marked as Article-A. Article-A contains electricity connection papers issued by the Electrical Board which shows that the house wherein raid was conducted belongs to Arihant Aata Chakki (flour mill) whose proprietor is Vimalchand Jain. Similarly, payment receipts were also filed which demonstrate the name of accused Vimal Jain. Before supplying the connection, the Junior Engineer of the Electricity Board also gave a report that the connection was obtained in the name of Arihant Aata Chakki wherein Vimalchand Jain, son of Milap Chand Jain has been shown as the proprietor. Subsequently, there was an agreement of supply which bears the signature of Vimalchand Jain. The NOC was also produced which shows that the Sarpanch of Gram Panchayat, Ratan Bandha had given NOC to install Holler and Flour Mill in favour of Vimalchand Lunia, son of Milap Chand Lunia. 37. Further, one consent letter is also filed by Smt. Meena Jain (Lunia), wife of Vimalchand Jain (Lunia), which shows that she owns a godown on the land admeasuring 300 sq. ft., at village Soridhbhat, (Ratnabandha), Panchwati colony, bearing Kh. No. 9771/13. 37. Further, one consent letter is also filed by Smt. Meena Jain (Lunia), wife of Vimalchand Jain (Lunia), which shows that she owns a godown on the land admeasuring 300 sq. ft., at village Soridhbhat, (Ratnabandha), Panchwati colony, bearing Kh. No. 9771/13. The consent letter further shows that in the said godown her husband Vimal Chand Lunia wanted to install a floor mill, for which she do not have any objection. This document is also exhibited by Vimal Chand Jain. Another sale deed is also placed on record which shows the internal transaction wherein, Vimal Chand Jain has executed a sale deed in favour of his wife Meena Jain, whereas the consent letter goes to show that wife Meena Jain Lunia has given a consent in favour of her husband to install a Aata Chakki (flour mill) in the godown. All the said documents have been admitted by the accused. A joint reading and examination of the said document show that the place wherein the raid was conducted was in possession of Vimalchand Jain and the electricity connection was also obtained by him. Further, her wife had given consent to install Aata Chakki (flour mill) in the said premises. However, the ownership in respect of Anil has not come on record. 38. The Act provides for punishment if any person in contravention of any provisions of the Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw. Section 8 of the Act enacts prohibition. In the case in hand, it is concerned with the possession and the charges confined to the possession. The exclusive and possession is core ingredient. 39. So if the accused is/are found to be in possession of Narcotic substance, it is for him/them to account for the possession satisfactorily and if not, the presumption u/s. 54 comes into play. The word "possession" no doubt has different shades of meaning and it is quite elastic in its connotation. The possession and ownership need not always go together. The minimum requisite element which has to be satisfied is custody of the control over the goods. The word "possession" no doubt has different shades of meaning and it is quite elastic in its connotation. The possession and ownership need not always go together. The minimum requisite element which has to be satisfied is custody of the control over the goods. In the instant case, the evidence has come on record which would reveal that the ownership and possession of the house belong to Vimal Chand Jain. It has come on record by documentary evidence as also the statements of P.W. 9 & P.W. 4 and the articles (documents) which is admitted by the accused that the house belongs to appellant Vimal Chand and it was in his possession. The evidence has come on record to the effect that P.W. 4 in Para. 8 has stated that when the raid was conducted, at that time, except accused no one was present in the house. However, the said witness has proved that the house belonged to Vimal Chand Jain. The evidence which has come on record also goes to show that the ownership of the premises, wherein the contraband was found, is belonged to Vimalchand Jain. 40. There is no evidence on record which shows that the accused/appellant namely Anil was dealing with the contraband materials. The evidence has come on record that both the appellants were present on the spot but only the evidence has come dissociating Anil with Vimalchand that the ownership and possession of Vimalchand was proved over the premises wherein Poppy (Doda) was recovered while in respect of Anil, only the presence was found. 41. There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of narcotic or psychotropic substances. Hon'ble the Supreme Court in case of Ismailkhan Aiyubkhan Patan Vs. State of Gujrat (2000) 10 SCC 257 at Para. 8 & 9 has held (Pg. 259). 8. There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under Section 114 of the Evidence Act merely because these persons were present when P.W. 7 went there. 9. 8. There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under Section 114 of the Evidence Act merely because these persons were present when P.W. 7 went there. 9. Either those persons would have been casually present in the room or atleast one of them would have been unaware of what was going on inside the room. We are not told who among the many accused that one possible innocent person could have been. 42. The Supreme Court in State of Punjab Vs. Balkar Singh and another (2004) 3 SCC 582 has held that merely by being found to be present at the place where the poppy bags were found and the failure to give any satisfactory explanation for being so present did not prove that the accused persons were in possession of the said poppy bags. In fairness, the police should have conducted further investigation (as to transportation of poppy bags to place of incident, ownership of the poppy husk etc.) to prove that the accused were really in possession of the said articles. 43. Further if we examine the statement of accused, no question was put to accused. Anil Wadhwani with respect to ownership of the house while the statement was recorded. Hon'ble the Supreme Court in State of Punjab Vs. Malkiat Singh 2009 (Suppl.) Cr. L.R. (SC) 226, had held thus in para. 5: We find that the High Court has noted with concern the shoddy investigation which was done. There was no reason indicated as to why Pritam Singh was not examined and why during investigation copy of the lease deed, showing the room to have been leased out to the respondent-accused, was obtained from Pritam Singh, if that was there. There is no reason as to why the same was not brought on record. Additionally, no evidence was adduced to show the possession of the room by respondent who was admittedly not the owner of the room. In addition, as is rightly contended by learned counsel for the respondent, no question regarding the possession of the room in question was put which added to the vulnerability to the prosecution version. 44. Additionally, no evidence was adduced to show the possession of the room by respondent who was admittedly not the owner of the room. In addition, as is rightly contended by learned counsel for the respondent, no question regarding the possession of the room in question was put which added to the vulnerability to the prosecution version. 44. In view of the foregoing discussions, I am of the considered view that no infirmity has caused by the learned court below in holding that the raid was conducted wherein One quintal 450 grams of Doda (opium) was found. It has further been rightly held that the search and seizure were properly conducted and the provisions of Section 42 were properly complied with. It has further been rightly held that the goods were proved to be positive by FSL report as it was found to be containing opium alkaloids. However, the finding of the fact drawn by the Court below that the accused have confessed that they are in possession of Doda as per Ex. P-25 cannot be sustained as the alleged confession by the accused will not amount to confession. 45. In view of the foregoing discussions, now turning to the part of possession, after careful scrutiny of the entire evidence and documents on record, I am of the considered opinion that accused Anil @ Kalu cannot be said to be in conscious possession of poppy whereas since the ownership of premises and the possession of contraband with respect to accused Vimalchand stand proved by the documents. He is held to be in conscious possession of the contraband goods. 46. In the result, Cr. A. No. 825/2011 preferred by Anil @ Kalu is allowed and the judgment of conviction and order of sentence against him is set aside. If he is in jail, he be set at liberty. For the foregoing reasons, the Cr. A. No. 922/2011 preferred by Vimalchand Jain is dismissed. HEADLINES To hold person guilty, accused has to be in conscious control over contraband goods and is to be exclusive.