JUDGMENT : Sanjay Kumar Jaiswal, J. 1. This criminal appeal filed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) is directed against the impugned judgment of conviction and order of sentence dated 05.01.2006 passed by the Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985, Durg, Chhattisgarh in NDPS Special Case No.06 of 2005, whereby the appellant has been convicted for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”) and sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, additional rigorous imprisonment for 3 years. 2. The allegation against the appellant is that, on 06.02.2005, at about 2:00 PM, at village Mohgaon within the ambit of Police Station Saja, appellant was illegally possessing 181 Kgs. of Ganja in commercial quantity without valid license, in his garden. 3. The case of the prosecution, in brief, is that, on 06.02.2005, S.K. Dubey (PW-13), In-charge of Saja Police Station, District Durg, received an information from an informer that appellant was possessing a large quantity of Ganja in his garden. Based on the said information, Roznamchasanha was registered vide Ex.P/9A. Two witnesses namely Harishchandra (PW-3) and Kishan (PW-4) were summoned through Constable Suresh Kumar (PW-12) and informer panchnama was prepared vide Ex.P/4. Information was sent to SDO (P) Saja, District Durg vide Ex.P/12. Then, the Staff and witnesses left for village Mohgaon, where appellant was present and after obtaining consent to search upon his garden, consent panchnama was prepared vide Ex.P/13. The police staff and independent witnesses were searched by the appellant, for which Police search panchnama (Ex.P/5) was prepared. Upon search, Ganja was found in 6 sacks in a pit as well as in plastic water tank buried in the ground and after identification, psychotropic substance identification panchnama was prepared vide Ex.P/6. Weight panchnama was prepared vide Ex.P/3. Sample packets of 50-50 grams were prepared, sealed and seizure memo was prepared vide Ex.P/7. Dehati Nalishi was recorded vide Ex.P/14. After coming back to Police Station, Roznamchasanha was prepared vide Ex.P/10A. The seized articles were deposited in goods warehouse and the entry was made in seized goods register vide Ex.P/11A. First Information Report was registered vide Ex.P/16. Sample packets of 50-50 grams were prepared, sealed and seizure memo was prepared vide Ex.P/7. Dehati Nalishi was recorded vide Ex.P/14. After coming back to Police Station, Roznamchasanha was prepared vide Ex.P/10A. The seized articles were deposited in goods warehouse and the entry was made in seized goods register vide Ex.P/11A. First Information Report was registered vide Ex.P/16. The appellant was arrested vide Ex.P/15, information of which was given to his family members vide Ex.P/17. Information about the entire proceedings was sent to SDO (P) Saja, District Durg vide Ex.P/8A. Seized substance was sent to State Forensic Science Laboratory, Raipur for its chemical examination vide Ex.P/18. According to FSL report (Ex.P/19), seized substance was found to be Ganja. After usual and due investigation, the appellant was charge- sheeted for offence under Section 20(b)(ii)(C) of the NDPS Act. 4. The prosecution, in order to bring home the offence, has examined as many as 15 witnesses and exhibited 21 documents. Statement of the appellant was recorded under Section 313 of Cr.P.C., in which, he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, in defence, neither any witness has been examined nor any document has been exhibited. 5. The trial Court after considering ocular, oral and documentary evidence on record, proceeded to convict and sentence the appellant in the manner mentioned in the opening paragraph of this judgment, against which instant appeal has been preferred holding that appellant was found in exclusive/conscious possession of 181 Kgs. of Ganja and provisions contained in the NDPS Act have been religiously and consciously complied with. 6. Learned counsel for the appellant submits that independent witnesses namely Harishchandra (PW-3) and Kishan (PW-4) have not supported the seizure of alleged contraband from the possession of appellant. Similarly, weighing panchnama witness Rajesh Sahu (PW-2) has also not supported the prosecution case. He further submits that remaining witnesses are Police Officers or their supporting staff. It is contended that prosecution has failed to prove that alleged contraband which was seized from the garden of appellant, was in exclusive/conscious possession of appellant. It is further contended that prosecution has not produced any documentary evidence regarding ownership or possession of the appellant. He further submits that remaining witnesses are Police Officers or their supporting staff. It is contended that prosecution has failed to prove that alleged contraband which was seized from the garden of appellant, was in exclusive/conscious possession of appellant. It is further contended that prosecution has not produced any documentary evidence regarding ownership or possession of the appellant. Patwari Suresh Chandra Yadav (PW-1) has also not produced any document regarding Khasra number or area of alleged garden and prosecution has also failed to bring any evidence on record in this regard. It has been argued that investigator himself and the witnesses of his accompanying staff have admitted that the place of incident was an open place adjacent to river bank, where any person can come. Thus, prosecution has failed to prove that alleged seizure was in exclusive/conscious possession of appellant. It has been further argued that finding of conviction of the trial Court is not valid and proper in the light of evidence produced by the prosecution. As such, appellant is entitled to be acquitted on the basis of benefit of doubt and appeal deserves to be allowed. 7. Per contra, learned State Counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. As such, the appellant is not entitled to be acquitted on the basis of benefit of doubt and the appeal deserves to be dismissed. 8. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. 9. In the case at hand, investigation proceeding has been stated to be done by the Station In-charge S.K. Dubey (PW-13) and his accompanying staff including Constable Dara Singh Kurre (PW- 5), Constable P.K. Singh (PW-6), Prakash Barua (PW-9), Constable Satish Kumar Sahu (PW-10) and Constable Suresh Kumar (PW-12). Suresh Chandra Yadav (PW-1) Patwari has prepared the spot map of seizure site vide Ex.P/1. 10. The independent witnesses of entire proceedings namely Harishchandra (PW-3) and Kishan (PW-4) both have turned hostile and not supported the prosecution case. Similarly, weighing panchmana witness Rajesh Sahu (PW-2) has also not supported the proceeding of weighing panchmana. Thus, all three independent witnesses mentioned hereinabove have not supported the case of the prosecution. 11. 10. The independent witnesses of entire proceedings namely Harishchandra (PW-3) and Kishan (PW-4) both have turned hostile and not supported the prosecution case. Similarly, weighing panchmana witness Rajesh Sahu (PW-2) has also not supported the proceeding of weighing panchmana. Thus, all three independent witnesses mentioned hereinabove have not supported the case of the prosecution. 11. In the above circumstances, the primary question is, whether alleged seizure of 181 Kgs. of Ganja was made from exclusive/conscious possession of the appellant ? 12. Patwari Suresh Chandra Yadav (PW-1) has prepared the spot map of seizure site vide Ex.P/1 and stated that other people also have fields and gardens around the garden in question, but Patwari or Police have not provided any such document, from which, it could be established that alleged seizure site was in exclusive/conscious possession of the appellant. 13. It would be appropriate to look at Section 8 of the NDPS for easy reference : “8. Prohibition of certain operations.-No person shall- (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter- State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.” 14. 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”. 15. 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. 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. 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. 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)." 16. 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)).” 17. 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. 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. 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. 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.” 18. 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.” 19. 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.” 19. Keeping in view the principle of laid down in the aforementioned judicial precedents, if we examine the facts of the case at hand, the evidence that has come prominently in this regard is that Patwari Suresh Chandra Yadav (PW-1) has admitted that there was no watchman appointed to guard the alleged seizure site and there were other people's fields and gardens around it. He further admitted that there is a bank of river Surhi on the eastern side of farm and he has not marked the area of the alleged garden in the spot map. He has also not mentioned the dry and water filled parts of the river in the spot map. 20. Similarly, Constable Satish Kumar Sahu (PW-10) has admitted that said seizure spot is an open place where alleged seized material was lying in a pit in unclaimed condition. 21. Accompanying Staff Constable Suresh Kumar (PW-12) has deposed in his evidence that the place where alleged seizure was made, was an open place where anyone can come and there was no one to guard the garden. The land was lying vacant. There were other people's fences around it. The villagers used the open space of garden for defecation. The river bed is about 20-30 feet dry place and it was stated by the Police Station In-charge S.K. Dubey (PW-13) that Ganja had been recovered from the garden of appellant, although he had no personal knowledge as to whose garden the alleged seizure place belonged to. He has further stated that he did not take Patwari map from the Police Station. 22. As investigator, Station In-charge S.K. Dubey (PW-13) has admitted in his cross-examination that the area is not mentioned in the map given by Patwari. He has also admitted that the garden i.e. place of alleged seizure, was an open land and it is at a distance of 20-25 steps from where the water of river was flowing and where anyone can come. He has also admitted that the garden i.e. place of alleged seizure, was an open land and it is at a distance of 20-25 steps from where the water of river was flowing and where anyone can come. He has also admitted that the said sack was lying open and was clearly visible, so it did not take much time for them to search it. 23. For the foregoing discussions, it becomes clear from the statement of Station In-charge S.K. Dubey (PW-13) and his accompanying staff as well as Patwari that the place from where alleged seizure was stated to be made, is an open place which is located across the river where any person can come and the alleged substance was lying loose in the sack. 24. If we look at the entire evidence presented in the light of the above judicial precedents, it is not proved that alleged seizure site was a place of exclusive/conscious possession of appellant. In such a situation, it would not be appropriate to hold the appellant guilty for illegal possession of Ganja. Accordingly, we are of the considered opinion that there is nothing to indicate that 181 Kgs. of Ganja was recovered from the exclusive/conscious possession of the appellant and the prosecution has failed to prove that Ganja was recovered from the possession of the appellant and, therefore, the appellant is entitled for acquittal of the offence under Section 20(b)(ii)(C) of the NDPS Act. 25. In the result, criminal appeal is allowed and the conviction and sentence imposed upon the appellant by the impugned judgment dated 05.01.2006 passed by the Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985, Durg, Chhattisgarh in NDPS Special Case No.06 of 2005, is hereby set aside. The appellant stands acquitted of the charge punishable under Section 20(b)(ii)(C) of the NDPS Act. It is stated that the appellant is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 26. Record of the trial Court be sent back along with a copy of this judgment forthwith for information and necessary compliance.