Daya Chaudhary, J. The present appeal has been filed to challenge the judgment of conviction and order of sentence dated 19.01.2005 passed by Judge, Special Court, Sangrur, whereby, the accused appellant has been convicted for offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in-after referred to as `the Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 1,00,000/- and in default thereof, to further undergo rigorous imprisonment for a period of one year. Briefly, the facts of prosecution case are that on 22.10.2002, SI/SHO Jasmail Singh along with other police officials was present on the bridge of Bhakhra Canal RD-460, Patran Road, Khanauri, in connection with Nakabandi. Meanwhile, a truck bearing No. PCI 4746 reached there and on giving signal, it was stopped. One person was driving the truck and another was sitting by his side. On suspicion, they were asked to get the search of the truck conducted. On asking, the driver of the truck disclosed his name as Harjinder Singh and another person as Nazar Singh. An option was given to both of them to be searched either in presence of Magistrate or a Gazetted Officer but they opted to be searched in presence of Gazetted Officer. An intimation was sent to Deputy Superintendent of Police, Moonak to come at the spot but he was found to be away in connection with some official work. A message was given to Control Room, Sangrur to send some Gazetted Officer at the spot. Deputy Superintendent of Police, Sunam reached at the spot, who introduced himself to the accused. Both the accused reposed confidence in Deputy Superintendent of Police and opted to be searched in his presence. 2. After recording statement of both the accused, a search was conducted. On search, 10 full jute bags and one half filled jute bag, which were covered with a blue colour Tarpaulin, were recovered from the tool box of the truck. The bags were found containing poppy husk. Two samples of 250 grams each were separated and remaining poppy husk was weighed with spring balance. However, the remaining recovery from 10 full bags was found to be 29 kgs 500 grams each and half filled bag was found containing 19 kgs 500 grams. The bags were found containing poppy husk. Two samples of 250 grams each were separated and remaining poppy husk was weighed with spring balance. However, the remaining recovery from 10 full bags was found to be 29 kgs 500 grams each and half filled bag was found containing 19 kgs 500 grams. All bags were converted into parcels and total 22 samples were sealed by Sub-Inspector with his seal bearing impression `JS', which was attested by Deputy Superintendent of Police. Seal after use was handed over to Khazan Singh. All parcels along with truck were taken into possession and ruqa was sent to police station, on the basis of which, a formal FIR was registered. The case property was deposited with MHC Sukhdev Singh. Owner of the truck-Naranjan Singh, was arrested in this case. Sample parcels were sent to Chemical Examiner and report was received. 3. On completion of investigation, the challan was presented before the Court and copies of the challan were supplied to accused as per provisions of Section 207 Cr.P.C. Charge under Section 15 of the Act was framed against accused Harjinder Singh and Nazar Singh and under Section 25 of the Act, against accused Niranjan Singh. Accused-Harjinder Singh was found juvenile and was produced before Principal Magistrate of Juvenile Justice Board-cum-Chief Judicial Magistrate, Faridkot. 4. The prosecution examined as many as eight witnesses. PW-1 Sudesh Kumar, PW-2 Constable Kulwant Singh, PW-3 Sham Lal Chalana, Judicial Magistrate Ist Class, Sunam, PW-4 Head Constable Sukhdev Singh, PW-5 ASI Babu Singh, PW-6 Sub-Inspector Jasmail Singh, PW-7 Parminderpal Singh, Junior Assistant DTO, Office, Sangrur and PW-8 Gurmit Singh Chauhan, Deputy Superintendent of Police. PW Khazan Singh was won over by the accused. ASI Sukhdev Singh and Constable Ajmer Singh were given up as unnecessary. 5. Statement of accused under Section 313 Cr.P.C. was recorded. Accused examined Head Constable Rachhpal Singh as DW-1, Labh Singh as DW-2 and Gurcharan Singh as DW-3. DWs Labh Singh, Mohinder Singh and Gulab Singh were given up being unnecessary. 6. On appraisal of evidence and after hearing learned counsel for the parties, the trial Court convicted Nazar Singh for offence under Section 15 of the Act and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 1,00,000/- with default clause vide sentence order dated 19.01.2005. However, Niranjan Singh was acquitted by giving benefit of doubt. However, Niranjan Singh was acquitted by giving benefit of doubt. 7. The judgment of conviction and order of sentence of accused Nazar Singh is a subject matter of challenge in the present appeal. 8. The said judgment has been challenged by raising various arguments on the ground that there are serious contradictions/discrepancies in the statements of prosecution witnesses and the appellant has falsely been implicated with ulterior motive. 9. Learned counsel for the appellant submits that mandatory provisions of Section 50 of the Act had not been complied with. As per allegations, the appellant was sitting by the side of the driver and co-accused Harjinder Singh was driving the truck. Although, one Khazan Singh was allegedly present at the place of occurrence with police party at the time of search and seizure of the truck but he was given up by the prosecution on the ground that he had been won over by the accused. Non explanation of Khazan Singh, independent witness is fatal to the case of the prosecution. Learned counsel also submits that not only violation of provisions of Section 50 of the Act is there but the search was conducted after sunset and before sunrise and requirement of proviso to Section 42 of the Act was not complied with. Learned counsel further submits that search and seizure of the contraband was effected by Sub-Inspector Jasmail Singh and he was also the investigating officer. As such, the complainant cannot be investigating officer. Learned counsel also submits that the alleged contraband was recovered from two persons and it cannot be said as to which of the accused was in exclusive conscious possession of the contraband. He further submits that there is a violation of mandatory provisions of Section 57 of the Act as no report regarding search and seizure was sent to immediate superior officer. There was previous enmity with the appellant as land of Sub-Inspector Jasmail Singh was adjoining to the land of appellant and there was dispute between Niranjan Singh and father of Sub-Inspector Jasmail Singh because of canal water. Father of Sub-Inspector Jasmail Singh received injuries at the hands of Niranjan Singh and father of Sub-Inspector Jasmail Singh since died and sufficient motive was there to falsely implicate the appellant. There was a delay of seven days in sending sample parcel to the Chemical Examiner and possibility of tampering with the same cannot be ruled out. Father of Sub-Inspector Jasmail Singh received injuries at the hands of Niranjan Singh and father of Sub-Inspector Jasmail Singh since died and sufficient motive was there to falsely implicate the appellant. There was a delay of seven days in sending sample parcel to the Chemical Examiner and possibility of tampering with the same cannot be ruled out. 10. Learned counsel for the appellant has relied upon judgments of Hon'ble the Apex Court in cases Avtar Singh v. State of Punjab 2002 (4) RCR (Criminal) 180, Asraf Ali v. State of Assam 2008(3) RCR (Criminal) 835as well as judgments of this Court in cases Sukhdev Singh and another v. State of Punjab 2006(4) RCR (Criminal) 263 and Mohan Singh v. State of Punjab 2004(4) RCR (Criminal) 260, in support of his contention. 11. Learned counsel for the State opposes the submission made by learned counsel for the appellant by arguing that the judgment of trial Court is well explained and no interference is required. 12. The judgment of the trial Court has been challenged mainly on the ground that there is non-compliance of Section 50 of the Act; the independent witness was joined at the time of alleged recovery but he was not examined; there was previous enmity and the appellant has been implicated as there was a dispute regarding canal water and there was a delay of seven days in sending the samples to chemical examiner. 13. On perusal of evidence available on record and after going through the statements of prosecution witnesses, admittedly the contraband was kept in tool box of the truck and was covered with tarpaulin, it cannot be said that it was a case of conscious possession of the contraband as there were two accused, one was driving the truck and another was sitting on the seat adjoining to the seat of driver. The independent witness namely Khazan Singh was present with the police party at the time of search and seizure of the truck but subsequently, he was given up by the prosecution on having suspicion that he had been won over by the accused. It has also come in evidence that the recovery was effected and search was conducted after sunset and before sunrise. Not only the violation of Section 50 of the Act is there but of Section 42 of the Act is also there. It has also come in evidence that the recovery was effected and search was conducted after sunset and before sunrise. Not only the violation of Section 50 of the Act is there but of Section 42 of the Act is also there. The search and seizure was conducted by Sub-Inspector Jasmail Singh and the same too was investigated by him. The Investigating Officer was the same person who made search and seizure of the contraband. It has also come in the statement of PW-3 Sham Lal that the truck, from where the recovery was effected, was not produced before the Magistrate. He has further stated in his cross examination that there was no recital regarding production of truck along with case property in the application Exhibit P-1/A. There is no mention about production of truck. This, in itself, shows that the recovery was not effected from the truck. Not only it doubts the prosecution version but shows that it is a case of false implication. It has also come in the statement of defence witness that there was a dispute regarding canal water as land of Sub-Inspector Jasmail Singh was adjoining the land of Niranjan Singh and because of that reason, a dispute was there between Niranjan Singh and father of Sub-Inspector Jasmail Singh. A DDR was also recorded to this effect and father of Sub-Inspector Jasmail Singh received injuries at the hands of Niranjan Singh. Labh Singh (DW-2) and Gurcharan Singh (DW-3) have stated in their statements that Sub-Inspector Jasmail Singh, who was the Investigating Officer, belongs to their adjoining village and land of Sub-Inspector Jasmail Singh was adjoining to that of the appellant. 14. Undisputedly, the samples were sent to Chemical Examiner after delay of seven days and possibility of tampering with the record cannot be ruled out. Although an argument has been raised by learned counsel for the appellant that the provisions of Section 50 of the NDPS Act have not been complied with but the same are not applicable in this case as the recovery has been effected from truck by the Investigating Officer and it was not from the conscious possession of the appellant. Since the conscious possession of the contraband has not been proved, then it cannot be said that the recovery of contraband was effected from the accused. 15. Since the conscious possession of the contraband has not been proved, then it cannot be said that the recovery of contraband was effected from the accused. 15. A Full Bench decision of this Court in Kashmir Singh v. State of Punjab and Karam Singh v. State of Punjab 2006(2) RCR (Crl.) 477: Criminal Appeal Nos. 407 and 408-DB of 1999, has held that Sections 35 and 54 of the Act deal with conscious possession. It has further been held therein that unless it is put in the statement under Section 313 of the Code, that they were in conscious possession of the contraband, the judgment of conviction and order of sentence cannot be recorded against the accused as it is the fundamental right of the accused to know the case of the prosecution to enable him to develop his defence. It has further been observed as under:-- It has been further observed that in any prosecution for an offence under the Act, which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution, as provided in Section 35 of the Act. For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. Section 54 reads as under:-- Presumption from possession of illicit articles - In trials under the Act, it may be presumed, until and until the contrary is proved, that the accused has committed an offence under this Act in respect of - (a) any narcotic drug or psychotropic substances or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any material which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. 16. In judgment of Hon'ble the Apex Court in Madan Lal and another v. State of H.P., 2003(4) RCR (Criminal) 100, it has been held as under:-- The word "possession" means the legal right to possession. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. Possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control. The word "conscious" means awareness about a particular fact. It is a state of kind which is deliberate or intended. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 17. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 17. As per ratio of judgment of Full Bench of this Court as well as judgment of Supreme Court in Madan Lal's case (supra), it is clear that the accused is to be given an opportunity to rebut the presumption as envisaged in Section 313 of the Code of Criminal Procedure. 18. Admittedly, in the present case, the accused has not been asked any question with respect to presumption of conscious possession as envisaged under Section 313 of the Code of Criminal Procedure. Therefore, the accused has not been afforded any opportunity to enable him to develop his defence. 19. Under the NDPS Act, not only the very possession of the narcotics, drugs and psychotropic substances has been made an offence but severe punishment has also been provided without any exception. The Act also provides for presumption of guilt emerging from possession of the contraband. In case of commercial quantity of the narcotics, drugs and psychotropic substances, the minimum sentence is of ten years rigorous imprisonment besides minimum fine of Rs. one lac. 20. Hon'ble the Supreme Court in Noor Aga v. State of Punjab 2008 (3) RCR (Criminal) 633 has held that under the NDPS Act, the extent of burden to prove the case beyond reasonable doubt is on the prosecution. A heightened security test is necessary which is required to be invoked. It is so because the object and intent of the act to provide maximum sentence and also to uphold the individual human rights and dignity. Under NDPS Act, it is the fundamental duty of the prosecution to prove beyond a shadow of reasonable doubt that the investigation conducted in the case is absolutely flawless but the prosecution is to prove from the stage of effecting recovery till the samples reach the Chemical Examiner, to show that there was no chance of tampering with it. Once the presumption is stumbling, then benefit is to be extended to the accused. 21. In the present case, not only the conscious possession of the accused appellant has been proved but no suggestion whatsoever under Section 313 of the Code was put to him. Once the presumption is stumbling, then benefit is to be extended to the accused. 21. In the present case, not only the conscious possession of the accused appellant has been proved but no suggestion whatsoever under Section 313 of the Code was put to him. The independent witness remained present throughout with the Investigating Officer but subsequently he was not examined by the prosecution. There was a delay of seven days in sending of the samples and the same has not been explained. 22. After carefully considering the submission of learned counsel for the parties, it is not disputed that no alternative charge has been framed against the accused under Section 8 of the Act for transporting the offensive goods. It is also not disputed that no question was put by the prosecution to the accused, with respect to conscious possession of the contraband, when they were examined under Section 313 of the Code that they were transporting the offensive goods in the vehicle at the relevant time. Thus in the absence thereof, the accused cannot be held guilty for the commission of any crime. 23. In view of the facts as mentioned above and on perusal of evidence available on record, I am of the view that the prosecution has failed to prove its case beyond reasonable doubt as neither the conscious possession has been proved nor mandatory provisions have been complied with. Delay in sending the sample has also not been well explained. Merely on the basis of statements of official witnesses, where the link evidence is missing, it cannot be said that the guilt against the accused appellant has been proved beyond reasonable doubt. The benefit of doubt goes to the accused appellant. Accordingly, the appeal is accepted by giving the benefit of doubt to the accused appellant and the judgment dated 19.01.2005 passed by Judge, Special Court, Sangrur is set aside. The appellant is discharged from the bail/surety bonds furnished. ___