JUDGMENT : 1. Chandrabhan Yadav - sole appellant in Cr.A.No.199/2019; three appellants in Cr.A.No.667/2019 namely Vijay Agrahari, Ramkaran Verma & Smt. Kanchan Bai; and Rakesh Verma - sole appellant in Cr.A.No.235/2019 have preferred these three criminal appeals under Section 374(2) of the CrPC against their conviction by the impugned judgment dated 19-12-2018 by which they have been convicted for offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for eleven years and to pay a fine of Rs. 1,10,000/- each, in default of payment of fine to further undergo rigorous imprisonment for three years. 2. Since all the three criminal appeals have arisen out of one and same judgment dated 19-12-2018 passed by the Special Judge (NDPS Act), Surguja (Ambikapur), District Surguja, in one Special Criminal (NDPS) Case No.10/2015 and since common question of fact and law is involved in all the three appeals, they have been clubbed together, heard together and are being disposed of by this common judgment. 3. All the five appellants in three appeals were charged for the offence under Section 20(b)(ii)(C) of the NDPS Act stating that on 12-4-2015 at 7 a.m. at Village Jajgi Turn under Police Station Udaipur, District Surguja, in the Marshall Vehicle bearing registration No.UP-54/S-5044 driven by appellant Rakesh Verma, all the appellants were found in conscious possession of 55 Kgs. of narcotic drug namely Ganja which is commercial quantity in a box kept below the back seat and from an iron box built in the back door of the vehicle in a polythene bag and thereby committed the offence. Further case of the prosecution is that on 11-4-2015 an order was passed by the Superintendent of Police, Surguja to the investigating officer K.V. Singh (PW-2) (who was examined on 4-12-2015 but before he could be cross-examined he unfortunately died) for undertaking checking work of vehicles at Jajgi Turn, Udaipur. Further case of the prosecution is that on 11-4-2015 an order was passed by the Superintendent of Police, Surguja to the investigating officer K.V. Singh (PW-2) (who was examined on 4-12-2015 but before he could be cross-examined he unfortunately died) for undertaking checking work of vehicles at Jajgi Turn, Udaipur. Accordingly, on 12-4-2015 at 6.30 a.m., K.V. Singh (PW-2) along with police officers of Police Stations Udaipur & Lakhanpur proceeded to Jajgi Turn, Udaipur for carrying out the checking work of vehicles vide Ex.P-36C Rojnamcha Sanha and during checking, K.V. Singh (PW-2) received secret information through informer that some men and women are crossing Udaipur and they are going to the State of Uttar Pradesh in a Marshall Jeep bearing registration No.UP-54/S-5044 carrying the contraband article Ganja pursuant to which Mukhbir panchnama was prepared by K.V. Singh (PW-2) vide Ex.P-4 and panchnama was also prepared vide Ex.P-5 for non-issuance of warrant under Section 42(2) of the NDPS Act. Notice of summons was issued to witnesses Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) and thereafter, information was sent to the Additional Superintendent of Police, Ambikapur vide Ex.P-7 regarding action taken on the secret information. Personal search of police staff was conducted vide Ex.P8 and personal search of witnesses Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) was conducted vide Ex.P-14 in presence of the appellants. Marshall Jeep No.UP-54/S-5044 was intercepted and persons/appellants sitting inside the vehicle were informed about their right to be searched before the Gazetted Officer or the Magistrate under Section 50 of the NDPS Act by joint notice Ex.P-13 to which they have consented to be searched by K.V. Singh (PW-2), whereas the sole woman accused/appellant has consented for search through woman police officer. Accordingly, on 12-4-2015 at 11.10 a.m., vide Ex.P-15, Marshall Jeep was searched by K.V. Singh (PW-2) - investigating officer, near the said place of incident in presence of the appellants herein and 55 packets of Ganja were seized from a box kept below the back seat of the Jeep and from an iron box built in the back door of the Jeep in presence of Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8). Thereafter, notice was issued to Dharmendra Yadav (PW-4) vide Exs.P-8 & P-9 for weighing the seized contraband article and for physical verification of the weighing apparatus in presence of Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8). Thereafter, notice was issued to Dharmendra Yadav (PW-4) vide Exs.P-8 & P-9 for weighing the seized contraband article and for physical verification of the weighing apparatus in presence of Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8). Accordingly, vide Ex.P-10, Dharmendra Yadav (PW-4) conducted weight of the contraband article and also prepared two sample packets of Ganja each containing 500 gms. for chemical examination. Joint seizure memo from the accused persons was prepared vide Ex.P-18 by K.V. Singh (PW-2) in Form IV. Accordingly, vide Ex.P-25, sample seal panchnama was prepared in presence of two witnesses Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) and vide Ex.P-26, detailed information was sent to the Sub- Divisional Officer (Police), Surguja relating to the proceedings conducted under the NDPS Act and thereafter, vide Ex.P-35, the contraband article was deposited in the Malkhana. FIR was registered by K.V. Singh (PW-2) vide Ex.P-43 for offence under Section 20(b) of the NDPS Act against the appellants and they were arrested vide Exs.P-19 to P-23 on 12-4-2015, but the samples were sent for chemical examination to the Regional Forensic Science Laboratory, Ambikapur, with a delay of 18 days. FSL report was sent by the Assistant Chemical Examiner, Regional Forensic Science Laboratory, Ambikapur vide Ex.P-37 confirming that the contraband article seized and marked as A & B was Ganja. Thereafter, after usual and due investigation, the appellants were charge-sheeted for offence under Section 20(b)(ii)(C) of the NDPS Act before the Special Court (NDPS Act), Ambikapur for hearing and disposal in accordance with law. 4. The prosecution, in order to bring home the offence, has examined as many as 13 witnesses and exhibited 45 documents Exs.P-1 to P-45. The appellants abjured the guilt and entered into defence. They did not examine any witness, however, exhibited one document i.e. copy of Rojnamcha Sanha marked as Ex.D-1 at their instance. 5. The Special Court after considering ocular, oral and documentary evidence on record, proceeded to convict and sentence the appellants in the manner mentioned in the opening paragraph of this judgment against which these appeals have been preferred holding that the appellants were found in conscious possession of 55 Kgs. of Ganja and the provisions contained in the NDPS Act have been religiously and consciously complied with. 6. Mr. Dhiraj Kumar Wankhede, learned counsel appearing in Cr.A. No.235/2019 on behalf of appellant Rakesh Verma, would submit as under: - 1. of Ganja and the provisions contained in the NDPS Act have been religiously and consciously complied with. 6. Mr. Dhiraj Kumar Wankhede, learned counsel appearing in Cr.A. No.235/2019 on behalf of appellant Rakesh Verma, would submit as under: - 1. The provisions contained in Section 42 of the NDPS Act have not been complied with and two witnesses Rajat Tirkey and Lakhan Singh to the Mukhbir Panchnama {Ex.P-4 signed by K.V. Singh (PW-2)} were not examined before the Court. He would rely upon the decisions of the Supreme Court in the matters of State of Punjab v. Balbir Singh, (1994) 3 SCC 299 and State of Punjab v. Baldev Singh, (1999) 6 SCC 172 to buttress his submission. 2. Similarly, Section 50 of the NDPS Act has not been complied with and joint notice to be searched by the Gazetted Officer or by the Magistrate was given, whereas individual notice ought to have been given which is in teeth of the decision of the Supreme Court in the matter of State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345 . 3. Similarly, Section 55 of the NDPS Act was not complied with in its letter and spirit and even the prosecution did not receive the contraband article as material exhibit before the trial Court which is contrary to the decision of the Supreme Court in the matter of Jitendra and another v. State of M.P., (2004) 10 SCC 562 . 4. He would alternatively submit that even if the aforesaid submissions are answered against the appellant, the prosecution has failed to prove that all the accused persons were owners of the contraband article and they were in conscious possession of the contraband article, as seizure witnesses Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8), both, have turned hostile and they have not supported the case of the prosecution, even they have clearly stated in their statements before the Court that search and seizure proceedings were conducted at Police Station Udaipur and they have simply signed the seizure memo Ex.P-15. 5. Santosh Singh (PW-13), who is the police officer, has stated in his statement before the Court that K.V. Singh (PW-2), who was the investigating officer earlier, has unfortunately died. In paragraph 26, he has clearly stated that all procedural proceedings were not conducted in his presence. 6. 5. Santosh Singh (PW-13), who is the police officer, has stated in his statement before the Court that K.V. Singh (PW-2), who was the investigating officer earlier, has unfortunately died. In paragraph 26, he has clearly stated that all procedural proceedings were not conducted in his presence. 6. Dharmendra Yadav (PW-4), the person who has conducted measurement panchnama, has clearly stated that measurement panchnama was conducted in Police Station Udaipur as such, there is no evidence on record to hold that the said Ganja was seized in presence of the present appellants and they were in conscious possession of the seized contraband article. 7. Furthermore, he would also submit that in the course of examination under Section 313 of the CrPC, not a single question was asked to the appellants that they were in possession of the contraband article in the vehilce which runs contrary to the object of examination of accused under Section 313 of the CrPC. In support of his contention, he would rely upon the decisions of the Supreme Court in the matters of Avtar Singh and others v. State of Punjab, (2002) 7 SCC 419 , Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 , Jagdish Rai v. State of Punjab, (2011) 4 SCC 571 and Makhan Singh v. State of Haryana, (2015) 12 SCC 247 . 8. He would lastly submit that the articles were examined by the Assistant Chemical Examiner, Regional FSL, Ambikapur vide Ex.P-37, but the said Examiner has not been examined and therefore the said FSL report Ex.P-37 is not admissible in evidence. As such, appellant Rakesh Verma deserves to be acquitted. 7. Mr. Arjun Lal Singroul, learned counsel appearing for the appellants in Cr.A.Nos.199/2019 & 667/2019, would submit that he would adopt the submissions made by Mr. Dhiraj Kumar Wankhede, learned counsel for appellant Rakesh Verma, as the case of the appellants in Cr.A. Nos.199/2019 & 667/2019 is similar to that of appellant Rakesh Verma in Cr.A.No.235/2019, and he would further submit that the appeals deserve to be allowed. 8. Mr. Sameer Oraon and Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and submit as under: - 1. 8. Mr. Sameer Oraon and Mr. Sudeep Verma, learned State counsel, would support the impugned judgment and submit as under: - 1. Sections 42, 50 & 55 of the NDPS Act have duly been complied with and the appellants have been found in conscious possession of the contraband article as found in the vehicle and for search of the vehicle, Section 50 of the NDPS Act would not be applicable. They would rely upon the decision of the Supreme Court in the matter of Ajmer Singh v. State of Haryana, (2010) 3 SCC 746 which has further been followed in the matter of Krishna Kumar v. State of Haryana. Even Sections 42 & 55 of the NDPS Act have been complied duly and there is no violation of the aforesaid provisions. 2. Furthermore, the appellants did not lay foundation of nonproduction of the contraband article before the Special Court and investigating officer Santosh Singh (PW-13) has not been cross-examined to that effect. 3. The Assistant Chemical Examiner is covered by Section 293(4) (a) of the CrPC and therefore the objection raised in this behalf is liable to be rejected and the appellants have even not exercised the option of summoning the subject expert i.e. the Assistant Chemical Examiner, as such, the appeals deserve to be dismissed. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. Since the FSL report Ex.P-37, by which the seized articles have been found to be Ganja, has been challenged on the ground that the Assistant Chemical Examiner of the Regional FSL, Ambikapur, ought to have been examined as he is not an officer enumerated under Section 293(4) of the CrPC therefore it is inadmissible in evidence, it is required to be gone into at the outset as this issue goes to the root of the matter. 11. Admittedly, the offence is said to have been committed at Jajgi Turn, Udaipur and the samples of the seized contraband article were sent to the Regional FSL, Ambikapur for examination and report has been signed and issued by the Assistant Chemical Examiner after due examination on behalf of the said laboratory which has been marked as Ex.P-37. In order to consider the plea, it would be appropriate to notice Section 293 of the CrPC which states as under: - “293. In order to consider the plea, it would be appropriate to notice Section 293 of the CrPC which states as under: - “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) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:- (a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Controller of Explosives; (c) the Director of the Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay; (e) the Director, Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory; (f) the Serologist to the Government. (g) any other Government Scientific Expert specified by notification by the Central Government for this purpose.” 12. A careful perusal of the aforesaid provision would show that this section makes provision for accepting in evidence reports made by certain Government Scientific Experts. This provision provides for reading in evidence certain documents purported to be report under the hand of a Government Scientific Expert as enumerated in subsection (4) which include Chemical Examiner or Assistant Chemical Examiner to Government. This provision is intended to save time and avoid needless examination of experts unless the Court finds it necessary to examine them or when the accused requested for examination of such expert. 13. Accused has a right to call expert to be examined and cross examined. This provision is intended to save time and avoid needless examination of experts unless the Court finds it necessary to examine them or when the accused requested for examination of such expert. 13. Accused has a right to call expert to be examined and cross examined. What sub-section (4) of Section 293 of the CrPC envisages is that the Court accept the documents issued by any of the six officers (now subsequently added by amendment with effect from 23-6-2006), thus seven officers, enumerated therein as valid evidence without examining the author of the documents (see State of Himachal Pradesh v. Mast Ram, 2004 CrLJ 4973 (SC)). 14. As such, the report of Chemical Examiner or Assistant Chemical Examiner to Government is per se admissible in evidence even if it is not exhibited. Where objection as to the admissibility of the report of the chemical examiner to government is not taken before the trial Court, the report is admissible in evidence (see Ishwar Singh v. State of M.P., 2000 (2) Crimes 50 (MP)). Even otherwise, the accused has option to summon chemical examiner or assistant chemical examiner (G.S.E.), but where the accused does not exercise his option to summon chemical examiner/assistant chemical examiner, the Court’s order admitting report of the chemical examiner in evidence is proper and justified. 15. In the instant case, admittedly, the appellants did not exercise the option of summoning the Assistant Chemical Examiner to Government who has submitted the FSL report to the Court under Section 293(2) of the CrPC and did not summon the Assistant Chemical Examiner to Government and thereby the Court has admitted the said report as Ex.P-37, and no such objection regarding admissibility of Ex.P-37 was taken before the trial Court. Therefore, in view of Section 293(1) of the CrPC, the said document has rightly been taken on record and rightly been read as evidence which cannot be called in question without laying any foundation before the trial Court. As such, the objection raised in this behalf by learned counsel for the appellants that the document Ex.P-37 (FSL report) is not proved in accordance with law and it is not a valid report, is hereby rejected finding no merit 16. This brings us to the next question that Section 42(1) of the NDPS Act has not been complied with in its letter and spirit. This brings us to the next question that Section 42(1) of the NDPS Act has not been complied with in its letter and spirit. Section 42(1) of the NDPS Act provides as under: - “42. This brings us to the next question that Section 42(1) of the NDPS Act has not been complied with in its letter and spirit. Section 42(1) of the NDPS Act provides as under: - “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 intelligence 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 or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. 17. A careful perusal of the aforesaid provision would show that under Section 42 only officers mentioned therein and so empowered officers can make the arrest or search as provided if they have reason to believe from personal knowledge or information qua offence(s). In both these provisions there are two important requirements. One is that the Magistrate or the officers mentioned therein firstly be empowered and they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the provision. It has been held in paragraph 11 of Balbir Singh’s case (supra) as under: - “11. But there are certain other embargoes envisaged under Sections 41 and 42 of the NDPS Act. Only a Magistrate so empowered under Section 41 can issue a warrant for arrest and search where he has reason to believe that an offence under Chapter IV has been committed so on and so forth as mentioned therein. Under sub-section (2) only a Gazetted Officer or other officers mentioned and empowered therein can give an authorization to a subordinate to arrest and search if such officer has reason to believe about the commission of an offence and after reducing the information, if any, into writing. Under Section 42 only officers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information. In both these provisions there are two important requirements. One is that the Magistrate or the officers mentioned therein firstly be empowered and they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the provision. So far as the first requirement is concerned, it can be seen that the Legislature intended that only certain Magistrates and certain officers of higher rank and empowered can act to effect the arrest or search. This is a safeguard provided having regard to the deterrent sentences contemplated and with a view that innocent persons are not harassed. So far as the first requirement is concerned, it can be seen that the Legislature intended that only certain Magistrates and certain officers of higher rank and empowered can act to effect the arrest or search. This is a safeguard provided having regard to the deterrent sentences contemplated and with a view that innocent persons are not harassed. Therefore if an arrest or search contemplated under these provisions of NDPS Act has to be carried out, the same can be done only by competent and empowered Magistrates or officers mentioned thereunder.” Furthermore, their Lordships in paragraph 14 have held that whether there was such reason to believe and whether the officer empowered acted in a bona fide manner, depends upon the facts and circumstances of the case and will have a bearing in appreciation of the evidence. 18. Even in Baldev Singh’s case (supra), their Lordships of the Constitution Bench of the Supreme Court with regard to Section 42(1) of the NDPS Act have held in paragraphs 9 & 10 as under: - 9. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. 10. The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.” 19. Reverting to the facts of the case, in the instant case, it is not in dispute that the officer who conducted search was a duly empowered officer. In Ex.P-5, it has clearly been recorded that the accused persons are likely to destroy the evidence and therefore search warrant could not be obtained, as such, they proceeded to search under Section 42(1) of the NDPS Act. Even the competence to make search by K.V. Singh (PW-2) - investigating officer, has not been questioned before the trial Court. As such, we find that Section 42(1) of the NDPS Act has strictly been complied with. 20. The next argument is based on Section 50 of the NDPS Act contending that joint notice has been given to the appellants by Ex.P13, whereas separate notice ought to have been given in light of the decision of the Supreme Court in Parmanand’s case (supra). It is the case of the prosecution that four male accused have consented for search by K.V. Singh (PW-2) and one woman accused namely, Smt. Kanchan Bai has consented for search by woman officer. It is the case of the prosecution that four male accused have consented for search by K.V. Singh (PW-2) and one woman accused namely, Smt. Kanchan Bai has consented for search by woman officer. However, it is contended by the learned State counsel that it was not the case of personal search, but it is the case of search of vehicle which was being driven by Rakesh Verma - one of the accused and therefore the provisions contained in Section 50 of the NDPS Act would not be applicable as held by the Supreme Court in Ajmer Singh (supra) followed in Krishna Kumar (supra). 21. It is well settled that Section 50 of the NDPS Act is applicable only where search of a person is involved and is not applicable where no search of a person is to be conducted. The Supreme Court in Krishna Kumar (supra), in which Ajmer Singh (supra) has been followed by their Lordships, held as under: - “12. It is clear from the reading of the aforesaid provision that it is applicable only where search of a person is involved. It is not made applicable in those cases where no search of a person is to be conducted. In the instant case the appellant was carrying a bag which was to be searched and on his request Chet Ram was summoned in whose presence search was conducted which pertained to a bag. In Ajmer Singh v. State of Haryana; (2010) 3 SCC 746 this aspect is specifically considered and dealt with. Following earlier Constitution Bench judgment, the Court held that when search and recovery from a bag, brief case, container etc. is to be made, provisions of Section 50 of the Act are not attracted.” 22. Furthermore, Ajmer Singh (supra) has been followed in Makhan Singh (supra). Admittedly, present case is not the case of personal search of the appellants, it was the case of search of vehicle which was being driven by Rakesh Verma - one of the appellants herein and remaining four accused/appellants were sitting inside the vehicle, and from which the contraband article was seized from a box kept below the back seat of the vehicle and from an iron box built in the back door of the vehicle. 23. 23. In that view of the matter, the provisions contained in the NDPS Act regarding personal search would not be attracted as the search of vehicle is different from search of person. Accordingly, this argument is also rejected. 24. The next submission is, Section 55 of the NDPS Act has not been complied with. Section 55 of the NDPS Act states as under: - 55. Police to take charge of articles seized and delivered. An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-incharge of the police station.” 25. In the instant case, the seized Ganja along with samples was deposited in the malkhana vide Ex.P-33C and it was given to Constable No.450 for examination in the Forensic Science Laboratory on 30-4-2015 and the FSL report also states that it was handed-over to the FSL, Ambikapur with 18 days delay. On the basis of the statement of Santosh Singh (PW-13) relying upon paragraph 30, it is held that the seized Ganja and samples were properly sealed vide Ex.P-35. It has been stated that by memo Ex.P-35, the entire Ganja was deposited in the malkhana, but nothing has been mentioned about seal. However, a careful perusal of Ex.P-35 would show that it has been clearly mentioned that the Ganja has been sealed and deposited in the malkhana vide Ex.P-33C. Sealing of samples is also mentioned in Ex.P-18-seizure memo, but with reference to seal mentioned in Ex.P-18, no such specific question has been asked to Santosh Singh (PW-13). The appellants were required to refer to that seal and should have put specific question to Santosh Singh (PW-13) in order to elicit proper answer, but no such specific question has been asked to Santosh Singh (PW-13). The appellants were required to refer to that seal and should have put specific question to Santosh Singh (PW-13) in order to elicit proper answer, but no such specific question has been asked to Santosh Singh (PW-13). As such, it cannot be held that Section 55 of the NDPS Act has not been complied with in its letter and spirit and therefore the objection raised in this behalf is hereby rejected. 26. Similarly, the question of not depositing the seized contraband article or its sample material before the Court has not been raised before the trial Court, therefore, the appellants now, cannot raise any ground at the time of argument before the appellate Court, of which they have not laid any foundation at the time of examination of material witnesses before the trial Court, as such, even on merits, we do not find substance in this submission and it is rejected accordingly. 27. Now, the final question that comes in is, whether the appellants were found in possession/conscious possession of seized Ganja? 28. Section 20 of the NDPS Act provides that whoever in contravention of any provisions of this Act or any rule made thereunder possesses cannabis shall be punished in accordance with the said provisions. Section 20(b) uses the word “possesses”. 29. The term "possession" consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. One of the definitions of “possession” given in Black's Law Dictionary is as follows: “Possession.-"Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel, 219 Kan 616 : 549 P 2d 568 at p. 569 (1976). The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. The law, in general, recognizes two kinds of possession: actual possession and constructive possession. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint." In the said Dictionary, the term "possess" in the context of narcotic drug law means:- "Term 'possess', under narcotic drug laws, means actual control, care and management of the drug. Collini v. State, 487 SW 2d 132 at p. 135 (Tex Cr App 1972). Defendant 'possesses' controlled substance when defendant knows of substance's presence, substance is immediately accessible, and defendant exercises 'dominion or control' over substance. State v. Hornaday, 105 Wash 2d 120 : 713 P 2d 71 at p. 74 (Wash 1986)." And again: Criminal law.-Possession as necessary for conviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual, United States v. Craig, 522 F 2d 29 at p. 31 (6th Cir 1975); as well as joint or exclusive, Garvey v. State, 176 Ga App 268 : 335 SE 2d 640 at p. 647 (1985). The defendants must have had dominion and control over the contraband with knowledge of its presence and character. United States v. Morando-Alvarez, 520 F 2d 882 at p. 884 (9th Cir 1975). Possession, as an element of offense of stolen goods, is not limited to actual manual control upon or about the person, but extends to things under one's power and dominion. McConnell v. State, 48 Ala App 523 : 266 So 2d 328 at p. 333 (1972). Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. McConnell v. State, 48 Ala App 523 : 266 So 2d 328 at p. 333 (1972). Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. United States v. Ellison, 469 F 2d 413 at p. 415 (9th Cir 1972). To constitute 'possession' of a concealable weapon under statue proscribing possession of a concealable weapon by a felon, it is sufficient that defendant have constructive possession and immediate access to the weapon. State v. Kelley, 12 Or App 496 : 507 P 2d 837 at p. 837 (1973)." 30. In Stroud's Dictionary, the term “possession” has been defined as follows: "'Possession' [Drugs (Prevention of Misuse) Act 1964 (c. 64), S.1 (1)]. A person does not lose "possession" of an article which is mislaid or thought erroneously to have been destroyed or disposed of, if, in fact, it remains in his care and control (R. v. Buswell, (1972) 1 WLR 64 : (1972) 1 All ER 75 (CA)).” 31. The Supreme Court in the matter of Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 with reference to Section 18 of the NDPS Act, which is punishable for contravention in relation to opium poppy and opium, considered the meaning of word “possesses” and relying upon its earlier decisions held as under:- 21. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. 22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. 22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the appellant-accused was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force. Hence, he remained in possession of the prohibited substance and as such offence under Section 18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force. To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery of the possessed article takes place. Certainly, on the date of recovery, he is in possession of the contraband article and possession itself is an offence. In such a situation, the appellant-accused cannot take the plea that he had committed an offence under Section 9 of the Opium Act and not under Section 18 of the NDPS Act.” 32. The principle of law laid down in Mohan Lal (supra) has further been followed by the Supreme Court in the matter of Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan, (2021) 10 SCC 100 and it has been held as under:- “26. The principle of law laid down in Mohan Lal (supra) has further been followed by the Supreme Court in the matter of Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan, (2021) 10 SCC 100 and it has been held as under:- “26. What amounts to “conscious possession” was also considered in Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 , where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan (supra), this Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.” 33. After having considered the meaning of word “possess”, it would be appropriate to notice the evidence available on record to find out whether the learned Special Judge is justified in holding that the appellants were found in possession of 55 Kgs. of Ganja from Marshall Jeep No.UP-54/S-5044. It is the case of the prosecution that all the five accused persons were sitting in the vehicle from where the Ganja in question was allegedly seized, but as per appellants it has not been proved that the said vehicle was owned by any of the appellants herein and even seizure of Ganja from the said vehicle has not been proved, therefore, the impugned judgment is liable to be set aside. 34. Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) are seizure witnesses and they have been examined before the Court as prosecution witnesses. 34. Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) are seizure witnesses and they have been examined before the Court as prosecution witnesses. Narendra Kumar Yadav (PW-6) in his statement before the Court, though has admitted his signature in Ex.P-15 but in cross-examination, especially in paragraphs 11 and 12, he has stated that as indicated by the police, he has signed all the documents including Ex.P-15, but he is not aware of the actual seizure proceeding undertaken by the police, no such proceeding was undertaken in his presence, he has not signed any of the documents including Ex.P-15 in Jagji Turn, Udaipur, but he has signed all the documents in Police Station Udaipur and all documents were signed by him at the instance of Santosh Singh (PW-13), ASI, and no such measurement verification and seizure was made at Jagji Turn, Udaipur. 35. Similarly, Manohar Goswami (PW-8) has admitted his signature in Ex.P-15 - seizure panchnama of the contraband, but in his statement before the Court in paragraph 8, he has specifically stated that on being called in the police station, he has signed all the documents in the police station itself and no such seizure proceeding has been made in the police station and he has not been shown the Ganja and no proceeding has been conducted in his presence. Thus, he has not seen any proceeding done in his presence except the signing of documents that too in Police Station Udaipur. 36. Both the witnesses - Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) have been declared hostile and further permitted to ask leading questions. Not only this, Dharmendra Yadav (PW-4), who has measured the contraband, in his statement before the Court has clearly stated that he was called by the Police Officer of Udaipur Police Station along with the electronic measurement apparatus and he has measured the Ganja to be of 55 Kgs. in Police Station Udaipur vide Ex.P-10. He has further stated that he has signed the measurement panchnama in the police station and measurement panchnama was not conducted in Jagji turn, Udaipur, it was conducted in Police Station Udaipur. As such, the statements of Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) also find support from the statement of Dharmendra Yadav (PW-4) who has conducted measurement of the contraband. As such, the statements of Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) also find support from the statement of Dharmendra Yadav (PW-4) who has conducted measurement of the contraband. Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) are also witnesses of measurement panchnama and as such, seizure of the contraband has not been proved by the prosecution beyond reasonable doubt and it is not proved that it was seized from the possession of the appellants in presence of the witnesses. 37. Apart from this, though statements of all the appellants have been recorded by the Court under Section 313 of the CrPC, but no question has been asked from the appellants regarding possession of the contraband. The object of examination under Section 313 of the CrPC, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of contraband from any of the accused, though they have been subjected to lengthy questions under Section 313 of the CrPC. The Supreme Court in Avtar Singh (supra) highlighting the object of Section 313 of the CrPC with reference to possession under the NDPS Act, observed as under: - “6. … The word “possession” no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants - one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from the evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of the goods whether or not he was the proprietor. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of the goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but, the fact remains that in the course of examination under Section 313 CrPC, not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under Section 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which the appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of the Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial court invoked the presumption under Section 54 of the Act without addressing itself to the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal.” 38. Finally reverting to the facts of the case in light of the aforesaid discussion, it is quite established that the prosecution has miserably failed to prove that 55 Kgs. of Ganja was seized from the possession of the appellants herein, as the two star witnesses of search & seizure - Narendra Kumar Yadav (PW-6) & Manohar Goswami (PW-8) have turned hostile and they have clearly stated before the Court that they have signed all the documents including Ex.P-15 in Police Station Udaipur and no seizure has been conducted in their presence in Jagji Turn, Udaipur. Furthermore, Dharmendra Yadav (PW-4), who has conducted the measurement of contraband, has also not supported the case of the prosecution and has clearly stated that measurement was conducted in the police station and Narendra Kumar Yadav (PW6) & Manohar Goswami (PW-8) were witnesses. Moreover, Santosh Singh (PW-13), who was examined as the earlier investigating officer has died, in paragraph 26 has clearly stated that except the proceeding regarding vehicle, other proceedings were not conducted by him and it was conducted by late K.V. Singh (PW-2). As such, the prosecution has miserably failed to prove measurement and seizure of Ganja from the appellants. Even otherwise, the appellants have not been subjected to examination under Section 313 of the CrPC regarding they were found in possession of contraband in the vehicle. In light of the decision of the Supreme Court in Avtar Singh (supra), it cannot be held that the appellants were found in conscious possession of 55 Kgs. of Ganja. Accordingly, we are of the considered opinion that there is nothing to indicate that 55 Kgs. In light of the decision of the Supreme Court in Avtar Singh (supra), it cannot be held that the appellants were found in conscious possession of 55 Kgs. of Ganja. Accordingly, we are of the considered opinion that there is nothing to indicate that 55 Kgs. of Ganja was recovered from the conscious possession of the appellants herein from the vehicle which they were travelling and the prosecution has failed to prove that Ganja was recovered from the possession of the appellants herein and therefore the appellants are entitled for acquittal for the offence under Section 20(b)(ii)(C) of the NDPS Act. 39. For the foregoing reasons, the criminal appeals are allowed and conviction and sentences imposed upon the appellants by the impugned judgment dated 19-12-2018 passed in Special Criminal (NDPS) Case No.10/2015 by the Special Judge (NDPS Act), Surguja (Ambikapur), District Surguja, are set aside. The appellants are acquitted of the charge under Section 20(b)(ii)(C) of the NDPS Act. 40. Appellants Rakesh Verma, Chandrabhan Yadav and Ramkaran Verma are on bail. They need not surrender. However, their bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. 41. Appellants Vijay Agrahari and Smt. Kanchan Bai are in jail. They be released forthwith if not required in any other case.