JUDGMENT
Garg, J.
(1). The above mentioned two appeals are being decided by this common judgment as both of them have been preferred against the common judgment and order dated 26.10.1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 295/97, by which he acquitted accused Rameshwarlal of the charge for the offence under Section 8/29 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’), but simultaneously convicted accused appellants Ashok Kumar and Jaspal in Appeal No. 708/99 and accused appellant Hussain Mohd. in Appeal No. 698/99 for the offence under Section 8/18 of the NDPS Act and sentenced each of them to undergo ten years’ Rigorous Imprisonment and to pay fine of Rs. one lac, in default of payment of fine, to further undergo one year RI.
(2). The facts giving rise to these appeals are as follows:-
PW 14 Kaji Nasim Ahmad, Inspector (Preventive Cell), Central Narcotics Bureau, Chittorgarh filed a complaint against the present accused appellant and accused Rameshwarlal in the court of Special Judge, NDPS Cases, Chittorgarh slating inter- alia that On 26.3.1997 under the Chairmanship of PW 11 Vijay Singh Meena, Superintendent in the office of Dy. Narcotics Commissioner, Kola, a Raiding Party was constituted for the purpose of preventing smuggling of contraband opium etc. and other members of that Raiding Party were PW 12 Narain Singh and PW 13 Parmanand and when this Raiding Party was making checking at Medi Ka Kheda (Bhawanipura) Railway Crossing on Bhilwara Road, a Bus of Rajasthan Roadways bearing No. RJ/14P 4338 came there, where was going Jaipur from Badi Sadri and it was stopped by PW 12 Narain Singh and the driver of the Bus Najir Mohd., PW 3 and Conductor of the Bus Neeraj Gautam, PW 4 were told that passengers of the Bus were to be checked in connection with contraband opium and both of them were made independent witnesses by PW 12 Narain Singh and thereafter, PW 12 Narain Singh entered the Bus alongwith these two witnesses, namely, PW 3 Najir Mohd. and PW 4 Neeraj Gaulam and found passengers, who were sitting on seats no. 1,2 and 3 in suspicious condition and on being asked, they told their names as Ashok Kumar (accused appellant No. 1 in appeal no. 708/99) Hussain Mohd. (accused appellant in appeal No. 698/99) and Jaspal (accused appellant No. 2 in appeal No. 708/99) and these three accused appellants were resident of District Sri Gangangar and they told that they were going to Bhilwara and these three accused appellants alongwith their luggage were asked to come down from the Bus and they were produced before PW 11 Vijay Singh and, thereafter, PW 12 Narain Singh gave notice Ex. P/7 under Section 50 of the NDPS Act to accused appellants informing them whether they wanted to be searched before Magistrate to Gazetted Officer or before Superintendent, who was with the Raiding Party, Namely, PWII Vijay Singh, who was Gazetted Officer or before himself i.e. PW 12 Narain Singh. All three accused appellants gave their consent that they could be searched by PW 12 Narain Singh. Thereafter, PW 12 Narain Singh asked accused appellant Hussain Mohad. to open the attache of blue colour, which was being carried by him in the Bus and on opening the said attache by him, a plaslic bag was found, which was lying beneaih the khakhi pent and brown colour shirt and in that bag, light brown colour substance was found and on seeing it, it was assessed that it was nothing, but contraband opium and accused appellant Hussain Mohd. also admitted that it was opium and he further admitted that this contraband opium jointly belonged to them. Thereafter, the said opium alongwith plastic bag was weighed by PW 13 Parmanand and its weight was found to be 1.525 Kgs. and after excluding the weight of plastic bag, the net weight of the opium was found to be 1.500 kgs., out of which, two samples of 25 grms. each were taken and sealed separately on the spot and marked as A/1 and A/2 and rest opium was also sealed on the spot. The fard of search and seizure was prepared on the spot by PW 12 Narain Singh and the same is Ex.P/8. The specimen seals were taken separately on Ex. P/10. The attache was seized through Ex. P/11.
Thereafter, bag of the accused appellant Ashok Kumar was searched and in that bag, three pents and three shirts were found and accused appellant Ashok Kumar told that these pents and shirts belonged to all to them. The fard of seizure of bag and prepared by PW 12 Narain Singh on the spot and the same is Ex.P/13.
Thereafter, on search of accused appellant Jaspal, three tickets were recovered and the same were seized through Ex.P/9.
Thereafter, all the three accused appellant were arrested through arrest memos Ex.P/14, Ex.P/15 and Ex.P/16.
PW 12 Narain Singh sent a detailed report of all the proceedings which he conducted to PW 10 Rakesh Kumar, Superintendent, Central Narcotics Bureau, through Ex. P/23, on which regular FIR was registered as PW 14 Kaji Nasim Ahmad was appointed as Investigation Officer of ihe case.
During investigation, on 26.3.1997, accused appellant Ashok Kumar gave information to PW 14 Kaji Nasim Ahmad under Section 27 of the Indian Evidence Act to the effect that the said opium was purchased from accused Rameshwarlal from his village Gangaji Ka Kheda and he could identify that house and that information was reduced into writing by PW 14 Kasi Nasim Ahmad in Ex.P/30.
Thereafter, Raiding Pary under the Chairmanship of PW 14 Kaji Nasim Ahmad went to the village of accused Rameshwarlal, where two motbirs, namely, PW 1 Ruplal and PW 2 Maadhu were taken for the purpose of identifying the house of accused Rameshwarlal and the fard is Ex.P/1 and, thereafter, the house of accused Rameshwarlal was searched and he handed over Rs. 8000/- for which he sold the opium to accused appellant Hussain Mohd. and the fard of search of house of accused Rameshwarlal is Ex.P/2. The motor cycle was also seized through Ex.P/3 and the accused Rameshwarla! was arrested through Ex.P/4.
Thereafter, PW 11 Vijay Singh sent fax message Ex. P/26 with regard to recovery of opium from the accused appellants, to Dy. Narcotics Commissioner, Central Narcotics Bureau, Kota.
PW 12 Narain Singh, after conducting whole proceedings of search and seizure, deposited the recovered articles in the Malkhana and the copy of Malkhana Register is Ex. P/24 and, thereafter, vide letter Ex.’P/22, one sample was sent to Government Opium and Alkaloid Works, Neemuch for chemical analysis through PW 9 Premnath, who deposited the same in the Government Opium and Alkaloid Works, Neemuch and the receipt is Ex.P/21 and the report of the Govt. Opium and Alkaloid Works, Neemuch is Ex.P/30, where it has been stated that the sample was found by qualitative and quantitative analysis to be opium.
During investigation, statements of accused appellants Hussain Mohd., Ashok Kumar and Jaspal under Section 67 of the NDPS Act were recorded and they are marked as Ex.P/27, Ex. P/28 and Ex.P/29 respectively.
After usual investigation, a complaint was filed against the present accused appellants and accused Rameshwarlal in the Court of Special Judge, NDPS Cases, Chittorgarh.
On 12.7.1997, the learned Special Judge, NDPS Cases, Chittorgarh framed charges for the offence under Section 8/18 of the NDPS Act against the present accused appellants and for the offence under Section 8/29 of the NDPS Act against accused Rameshwarlal. The charges were read over and explained to the accused, who pleaded not guilty and claimed trial.
During the course of trial, the prosecution, in support of its case, examined as many as 14 witnesses and got exhibited several documents. Thereafter, statements of the accused under Section 313 Cr.P.C. were recorded and two witnesses were produced in defence by the accused.
After conclusion of the trial, the learned Special Judge, NDPS Cases, Chiltorgarh through his judgment and order dated 26.10.1999 acquitted the accused Rameshwarlal of the charge for the offence under Section 8/29 of the NDPS Act, but convicted the present accused appellants for the offence under Section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter-alia:-
1. That in the present case, provisions of Section 42 of the NDPS Act are not applicable, as there was no prior information with the Raiding Party constituted under the Chairmanship of PW 1 Vijay Singh.
2. That provisions of Section 50 of the NDPS Act are not applicable in the present case because search was conducted on suspicion and accidentally.
3. That if the independent witnesses of the fard of search and seizure Ex. P/8, namely, PW 3 Najir Mohd. and PW 4 Neeraj Gautam have been declared hostile, it would not affect the prosecution case.
4. That prosecution has proved that the present accused appellants were travelling in Bus and from the attache of accused appellant Hussain Mohd., opium was recovered and it was in the knowledge of other two accused appellants and from the possession of the accused appellant Ashok Kumar, clothes of present three accused appellants were recovered and thus, prosecution case for recovery of contraband opium against the present three accused appellants is well proved.
(4). That learned Special Judge also sought corroboratlon from the statements Ex.P/27 to Ex.P/29 of the present accused appellants recorded under Section 67 of the NDPS Act.
5. That learned Special Judge also found that the seals of the recovered articles especially sample which was deposited in the Government Opium & Alkaloid Works, Neemuch remained intact from the date of seizure till sample was deposited in the Government Opium & Alkaloid Works, Neemuch.
6. That prosecution has not been able to prove its case against the accused Rameshwarlal for the offence under Section 8/29 of the NDPS Act.
Aggrieved from the said judgment and order dated 26.10.1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh, the present accused appellants have preferred these appeals.
(3). In these appeals, the following submissions have made by the learned counsel for the accused appellants:-
1. That compliance of Section 50 of the NDPS Act, as required by law, has not been made and furthermore, there is no dispute on the point that a joint notice Ex.P/7 under the provisions of Section 50 of the NDPS Act was given to the present accused appellants and their consent was taken on it. Thus, giving of joint notice does not fulfil the requirement of law, as where two or more accused aro apprehended in a Narcotic case, offer of being searched in presence of a Gazetted Officer or Magistrate must be given to each accused individually and from this point of view also, whole trial stands vitiated, as compliance of mandatory provisions of Section 50 of the NDPS Act has not been made in strict sense as warranted by law. Hence, on this ground alone, the accused appellants are entitled to acquittal.
2. That no reliance can be placed on the so-called statements of the accused appellants Ex. P/27 to Ex.P/29 recorded under Section 67 of the NDPS Act, as they have not been given voluntarily, and they were recorded under coercion and pressure and furthermore, they were not put before the accused appellants when they were examined under Section 313 Cr.P.C. and thus, no reliance can be placed on them.
3. That recovery of the contraband opium in the present case is doubtful and the link evidence is missing.
4. That so far as accused appellants Ashok Kumar and Jaspai are concerned, the recovered opium was not in their conscious possession and thus, the findings of the learned Special Judge that recovered opium was also in conscious possession of the accused appellants Ashok Kumar and Jaspal are erroneous one and liable to be set aside.
Thus, it is prayed that these appeals be allowed and the accused appellants be acquitted of the charges framed against them.
(4). On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Chittorgarh.
(5). I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case.
(6). The first point which is to be considered is whether compliance of Section 50 of the NDPS Act in the present case is must and if so, whether the same has been made by the prosecution or not. For that, factual aspect of the case has to be seen apart from the legal aspect of the case.
(7). So far as the legal position about Section 50 of the NDPS Act is concerned, it has been held by the Hon’ble Supreme Court in so many cases that it is obligatory on the part of the empowered officer to inform the person to be searched that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 of the NDPS Act, which is mandatory and thus, it would affect the prosecution case and vitiate the trial. The provision necessarily implies that the officer making search must inform the person, to be searched, of his right to be taken to the nearest Gazetted Officer or to the nearest Magistrate.
(8). Thus, it can be said that a bare reading of the provision leaves no doubt that it is the right of the person to be searched to insist that ho be taken without unnecessary delay to the nearest Gazetted Officer of any of the Departments mentioned in Section 42 of the NDPS Act, or to the nearest Magistrate. This is an extremely valuable right which the legislature has clothed him with and has been incorporated in the Act keeping in view the severity of the sentence. A search before a Gazetted Officer or Magistrate would impart more authenticity and credit worthiness to the proceedings otherwise the right would become illusionary.
(9). In K.Mohanan v. State of Kerala (1), the Hon’ble Supreme Court has held as under:-
“Narcotic Drugs and Psychotrophic Substances Act, 1985 – Section 50 -Before subjecting a person to search, the officer concerned must inform him of his right to be searched before a gazetted officer or a Magistrate and failure to do so would cause prejudice to such person– Where before conducting the search the police officer concerned merely asking the accused appellant whether he was required to be produced before a gazetted officer or a Magistrate for the purpose of the search but not informing him about his right in that behalf under the law, held mandatory requirement of Section 50 not satisfied — If he had been told about his right, what would have been the answer given by the accused cannot be gauged at this distance of time –This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with. In view of non-compliance with Section 50, the evidence of search spoken to by the police officer who had conducted the search cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of.the contraband article.”
(10). In Ahmed v. State of Gujaral (2), the Hon’ble Supreme Court has held as under: –
“Sections 50, 41, 42 — Compliance — Search taken by a “gazetted officer” – If the accused still has the right to be informed about his right to be searched before a gazetted officer or Magistrate. Accused himself wanting to be searched before gazetted officer or Magistrate– Request declined. Held that there was infraction of Section 50. Even if the officer searching the accused himself is a gazetted officer, right of accused cannot be denied.”
(11). From perusing the above two rulings of the Hon’ble Supreme Court, it becomes crystal clear that the officer concerned must inform accused of his right to be searched before gazetted Officer or Magistrate and failure to do so would cause prejudice to such person. Merely asking accused whether he was required to be produced before a Gazetted Officer or a Magistrate for the purpose of the search, but not informing about his right in that behalf under the law, it would mean that mandatory, requirement of Section 50 of the NDPS Act has not been satisfied.
(12). It may be stated here that to attract the application of Section 50 what is material is that search of a person is to be taken and not at what place it is to be taken. Section 43 deals with search and arrest in public places. Section 43 is silent on the point and does not say that person to be searched should be given option of being searched before a Gazetted Officer or a Magistrate. On this basis some High Courts have held that if a person is apprehended and is to be searched in a public place, it is not necessary to inform him of his right to get himself searched before a Gazetted Officer or a Magistrate nor he need be taken to a Gazetted Officer or Magistrate for search. This view-does not seem to be correct. Firstly, the sub Section (1) makes specific mention of Section 43. Secondly, most of the accused are apprehended and searched in places like railway Station, bus stand, airport, road and street. If Sub-section (1) is held not applicable to such cases, then the safeguard provided by this sub section will be denied in most of the cases, which the law as contained in Section 50 and 43 does no permit. Thus, it can be clarified that if the search of the person is conducted even in public place, provisions of Section 50 of the NDPS Act would apply.
Object and purpose of Section 50 of the NDPS Act.
(13). The purpose of informing a suspect that search could be taken in the presence of a Gazetted Officer was to ensure that there was safeguard against planting any incriminating article.
(14). These provisions have been made in order to protect the interests of the citizens from irregular and illegal invasion on his liberty by the authorities as well as in the interest of the State to secure the evidence bearing upon the commission of the crime and necessary to enable the justice to be done shall not be withheld from the course of law on merely formal or technical grounds.
(15). The object of making it pre-emptory on the part of the officer so as to ensure that the officer, who is charged with the duty of conducting the search, to conduct it properly and not to harm or wrong, such as planting of offending drugs by any interested party and to prevent fabrications of any evidence.
(16). The provisions of Section 50 are intended to provide a safe ground against vexatious search, any unfair dealings and to protect and safeguard the interests “f the innocent persons. It also provides a protection to the law enforcing agency.
(17). The provisions of Section 50 of the NDPS Act have been made with the intention to act as a safeguard against the vexatious and unfair dealings. The provisions have also been incorporated in order to protect and safeguard the interest of an innocent person. If a person is searched before a Gazetted Officer or before a Magistrate, as the case may be, then it will provide a weapon to the law enforcing agency against the common allegation that the opium has been planted by the investigating agency.
(18). The rational behind this provision is manifest. A search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit worthiness to the proceedings. It would, varily, strengthen the prosecution.
(19). The Hon’ble Supreme Court in so many cases has hold that the provisions of Section 50 of the NDPS Act are mandatory in nature and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial.
(20). Looking to the above proposition of law, the facts of the present case are being examined.
(21). The main witness in the present case is PW 12 Narain Singh, who was with PW 11 Vijay Singh, who was Head of the Raiding Parly and apart from PW 11 Vijay Singh, PW 13 Parmanand was with PW 12 Narain Singh.
PW 12 Narain Singh states in examination-in-chief that they stopped the Bus at 7.45 AM and as per instruction of PW 11 Vijay Singh, he entered the Bus and found passengers, who were sitting on seats No. 1, 2 and 3 in suspicious condition and on being asked they told their names as Ashok Kumar, Hussain Mohd. and Jaspal (present accused appellants) and the accused appellants were asked to come down from the Bus with luggage and they were produced before PW 11 Vijay Singh and, thereafter, a notice Ex.P/7 under Section 50 of the NDPS Act was given by PW 12 Narain Singh to the accused appellants informing them whether they wanted to be searched before the Magistrate or Gazetted Officer or Superintendent PW 11 Vijay Singh, who is Gazetted Officer before himself i.e. P.W. 12 Narain Singh and thereafter, they gave their consent that they could be searched by P.W. 12 Narain Singh. Thereafter, accused appellant Hussain Mohd. was asked to open the attache, which was in his hand and fromt that attache, a plastic bag was recovered which was beneath the khakhi pent and brown shirt and in that bag, light brown colour substance was found and on seeing and tasted, it was assessed that it was nothing but contraband opium and it was weighed by PW 13 Parmanand and its weight was found to be 1.525 kg. including the weight of plastic bag and after excluding the weight of plastic bag, the net weight of the opium was found to be 1.500 kg., out of which two samples of 25 grms. each were taken and sealed separately on the spot and marked as A/1 & A/2 and rest opium was also sealed separately on the spot. Thereafter, fard of search and seizure Ex.P/8 was prepared by him.
In cross examination, he admits the following facts:-
(1) That attache in question was found in the lap of accused appellant Hussain Mohd., but in the fard of search and seizure, this fact was not mentioned, but it was only mentioned that attache was with accused appellant Hussain Mohd.
2. That the fact that attache was found in the lap of accused appellant Hussain Mohd. was also not mentioned in the report Ex.P/23, which was sent by him to PW 10 Rakesh Kumar, Superintendent.
3. That it is correct to say that only one notice under Section 50 of the NDPS Act was given to alt the three accused appellants and no separate notice was given to each accused appellant.
4. That attache was not locked.
5. That opium was weighed by PW 13 Parrnanand.
(22). So far as the fact that only one notice under Section 50 of the NDPS Act was given to all the three accused appellants is concerned, the same has been admitted by PW ,11 Vijay Singh and PW 13 Parmanand, who were also in the Raiding Party with PW 12 Narain Singh.
(23). It is the case of the prosecution that attache from which opium was recovered, was with accused appellant Hussain Mohd. Hence, it is held that compliance of Section 50 of the NDPS Act in the present case is necessary while dealing with the case of accused appellant Hussain Mohd. and the findings of the learned Special Judge that Section 50 of the NDPS Act would not be applicable are not correct one so far as the accused appellant Hussain Mohd. is concerned.
(24). In the present case, there is no dispute that notice under Section 50 of the NDPS Acl was given jointly to all the three accused appellants and individual notice has not been given to each accused appellant.
(25). So far as the case of other two accused appellants, namely, Ashok Kumar and Jaspal is concerned, since opium was not recovered from their person, therefore, the question that joint notice was given to them has become only academic one and validity of Joint notice under Section 50 of the NDPS Ad given to them is not being taken into consideration Now. In other words, had opium would have been recovered from them, validity of joint notice under Section 50 of the NDPS Act would have been examined, but as no opium was recovered from them, therefore, validity of joint notice against them is not being examined.
(26). However, the question that arises for consideration is whether notice Ex.P/7 under Section 50 of the NDPS Act which was given jointly to all the three accused appellants, in the above facts and circumstances of the case, would make compliance of Section 50 of the NDPS Act or not, so far as the accused appellant Hussain Mohd. is concerned.
(27). The learned counsel for the accused appellants has placed reliance on the decision of the Punjab & Haryana High Court in Paramjit Singh and Anr. v. State of Punjab (3), where the Punjab and Haryana High Court has laid down the law stating that where two or more accused are apprehended in a Narcotic case, offer of being searched in presence of a Gazetted Officer or Magistrate must be given to each accused individually and if offer is not given as such, it would be difficult to hold compliance of Section 50 of the NDPS Act.
(28). However, Punjab and Haryana High Court in another decision in Kalyan Singh v. State of Haryana (4), has held as under:-
“Narcotic Drugs and Psychotrophic Substances Act, 1985, Section 50 –Recovery of contraband — Search and seizure — Compliance of -There is no bar if joint offer is given — The Bar under law is that there should not be a’joinl statement — Held — Provisions of Section 50 duly complied with.”
(29). Thus, looking to the above two authorities of the Punjab & Haryana High Court which laid down law different to one another and looking to the fact that provisions of Section 50 of the NDPS Act are mandatory in nature as held by the Hon’ble Supreme Court in so many cases, giving of joint notice under Section 50 of the NDPS Act would not be regarded illegal per se, unless and until case of prejudice is made out and in absence of that, notice would not be rendered illegal because of the simple reason that it was given jointly.
(30). In the present case, notice under Section 50 of the NDPS Act was only required to be given to accused appellant Hussain Mohd. as the search was effected from the attache which was in his possession and there is no evidence to show that any prejudice has been caused to him by giving joint notice and therefore, if notice under Section 50 of the NDPS Act is given jointly, in absence of any prejudice, the said joint notice would not be declared as illegal notice so far as the accused appellant Hussain Mohd. is concerned, as the recovery of opium was made from the attache which was in his exclusive possession.
(31). Hence, it held that compliance of Section 50 of the NDPS Act has been made by the prosecution in the present case so far as accused appellant Hussain Mohd. is concerned.
(32). So far as the argument that no reliance can be placed on the statement Ex.P/27 of the accused appellant Hussain Mohd. recorded under Section 67 of the NDPS Act is concerned, in my considered opinion, even without taking into consideration that statement as corroborative piece of statement, the recovery from this accused appellant Hussain Mohd. is well proved and thus, that aspect is not being taken into consideration.
(33). So far as argument of link evidence is concerned, for that again evidence of some of the prosecution witnesses has to be seen.
(34). PW 9 Prem Nath has been produced on behalf of the proseculion. He states in examination-in-chief that he deposited the sample in the Government Opium and Alkaloid Works, Neemuch and he has produced the receipt Ex. P/21 and further stated that alongwilh the sample, forwarding letter was not given to him. Thereafter, he was declared hostile and after that, in cross- examination, he admils:-
1. That Superintendent was PW 10 Rakesh Kumar.
2. That he was given the sample by PW 14 Kaji Naseem Ahmad in the office alongwith envelope and letter Ex. P/22 and at that lime, PW 10 Rakesh Kumar was also sitting in the office.
(35). Another witness in this respect is PW 10 Rakesh Kumar, who was Superin-lendent. He has stated that report Ex.P/23 was given to him by PW 12 Narain Singh and on the basis of that report, he chalked out FIR No. 1/97 and investigation was handed over to PW 14 Kaji Naseem Ahmad and he deposited the recovered articles and samples in the Malkhana and made entries in the Malkhana Register Ex.P/24 at place A to B and C to D are his signatures. He has further stated that on 31.3.1997 he gave one sample to PW 9 Premnath for depositing it in the Government Opium and Alkaloid Works, Neemuch for chemical analysis and entry about this fact was made by him in Ex.P/24 al place G to H and C to D are his signatures and 1 to J are the signatures of PW 9 Prem Nath.
In cross examination, he admits:-
1. That entries in Ex.P/24 are not in his hand writing.
2. That at place G to H in Ex.P/24, the word only sample was there, but not specifically marked.
3. That sample was give by him to PW9 Premnath but he did not hand over any forwarding letter to PW 9 Premnath.
(36). In my considered opinion, from the above evidence, it cannot be concluded that the sample was tampered with in any manner. In Ex. P/24, there is specific entry at place G to H that one sample was given by PW 10 Rakesh Kumar to PW 9 Premnath for depositing in the Government Opium & Alkaloid Works, Neemuch for chemical analysis, which bears the signatures of PW 10 Rakesh Kumar and that of PW 9 Premnath and on the same day, PW 9 Premnath deposited the sample in the Government Opium and Alkaloid Works, Neemuch and that fact can be seen from the receipt Ex.P/21.
(37). In these circumstances, it can easily he said that the recovered articles and samples from the dale of seizure till sample was deposited in Government Opium and Alkaloid Works, remained in proper custody and proper form and sample was not tampered with in any manner.
(38). Thus, the argument that articles were not kept in proper custody and proper forum and link evidence is missing in the present case stands rejected.
(39). In the present case, the opium was recovered from the attache which was in the possession of accused appellant Hussain Mohd. Thus, the prosecution has proved its case beyond all reasonable doubts against this accused appellant Hussain Mohd. for the offence under Section 8/18 of the NDPS Act.
(40). The next question that arises for consideration is whether in the above circumstances can it be said that articles recovered from the attache of accused appellant Hussain Mohd., were in conscious possession of the other accused appellants Ashok Kumar and Jaspal or not.
(41). The legal position in this respect may be summarised in the following manner:-
(42). The term ‘possession’ has not been defined in the Act nor is it possible to work out a completely logical and precise definition of this term uniformly applicable to all situations is the context of all the statutes. In the Dictionary of English Law (Earl Jowitt) (1959) at P. 1367) “possession” is defined as “the visible possibility of exercising physical control over a thing coupled with the intention of doing so, either against all the world, or against all the world except certain person. There are, therefore, there requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession unless accompanied by intention; if a thing is put into the hand of a sleeping person, he has no possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed….”.
(43). This definition has been recognized by the House of Lords in a well known case reported as Warner v. Metropolitan Police Commissioner (5), which has been followed with approval by the Hon’ble Supreme Court of India in Inder Sain v. State of Punjab (6). Thus, the term ‘possession’ would imply dominion and control. A person cannot be said to be in possession of an article if he is not in a position to exercise any dominion over it.
(44). Possession, in order to amount to an offence, must be conscious and exclusive. It mst be to the knowledge of the person on whom liability is sought to be fastened. Such a person must have dominion and control over such article and it must be exclusive.
(45). Thus, it can be said that proof, of exclusive possession is essential for making a conviction under the NDPS Act when there is a case against the accused that contraband opium was recovered form his possession in his house.
(46). Looking to the entire facts and circumstances of the present case, it cannot be said that the opium, which was recovered from the attache, which was found in the possession of accused appellant Hussain Mohd., was in conscious possession of other two accused appellants namely, Ashok Kumar and Jaspal merely because they were travelling in the Bus alongwith accused appellant Hussain Mohd. Hence, these two accused appellants Ashok Kumar and Jaspal cannot be convicted for the recovery of opium, which was made from the attache found in the possession of accused appellant Ashok Kumar, which were belonging to accused appellant Hussain Mohd. In the garb of that shirts and pents were also found with the accused appellant Hussain Mohd. is not a proof to constitute possession of opium.
(47). For the reasons stated above, it cannot be easily presumed that for the opium, which was found in the attache belonging to the accused appellant Hussain Mohd., these two accused appellants, namely, Ashok Kumar and Jaspal had any domain over it nor it can be said with certainty that they had knowledge about this and in these circumstances, on point of possession, the prosecution has not been able to prove its case beyond all reasonable doubts againsl these two accused appellants Ashok Kumar and Jaspal and they are entitled to acquittal after giving benefit of doubt.
(48). For the reasons stated above, the appeal no. 698/99 filed by the accused appellant Hussain Mohd. is liable to be dismissed and the findings of the learned Special Judge convicting him for the offence under Section 8/18 of the NDPS Act are liable to be confirmed.
(49). The appeal No. 708/99 filed by the accused appellants Ashok Kumar and Jaspal deserves to be allowed and the findings of the learned Special Judge convicting them for the offence under Section 8/18 of the NDPS Act are liable to be set aside and they are entitled to acquittal.
In the result:-
1. The appeal No. 698/99 Piled by the accused appellant Hussain Mohd. is dismissed, after confirming the judgment and order dated 26.10.1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh.
2. The appeal No. 708/99 filed by the accused appellants Ashok Kumar and Jaspal is allowed and the judgment and order dated 26.10.1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh so far as they relate to them are set aside and they are acquitted of the charges framed against them.
Since the accused appellants Ashok Kumar and Jaspal are in jail, they be released forthwith, if not required in any other case.