The prosecution must establish exclusive possession and conscious possession of contraband, and confessional statements must be recorded before any complaint or F.I.R. has been lodged against the accused.

1. - The appellant was the accused in Sessions Case No. 100/1997 on the file of learned Special Judge (N.D.P.S. Cases) Jhalawar. He was found guilty under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short the Act) convicted thereafter and sentenced to 10 years rigorous imprisonment and a fine of Rs. 1,00,000/- in default of payment of fine to further undergo one year R.I. Aggrieved by the conviction and sentence, the action for filing of the instant appeal has been resorted to.

2. Background facts as portrayed by the prosecution are that on February 3, 1996 the appellant was found cultivating the opium without obtaining the licence. As many as 932 poppy plants were seized and sealed. Two samples each contained 20 plants for chemical analysis were drawn and sealed in polythene packet. On completion of investigation challan was filed. The appellant was charged under Sections 8/18 of the Act to which he pleaded not guilty. On evaluation of evidence the learned trial court convicted and sentenced the appellant as indicated herein above.

3. I have reflected over the rival submissions and carefully scanned the material on record.

4. I find following infirmities in the prosecution case :

(a) A look at the analysis report of the sample demonstrates that sample packet was received in the laboratory in wet condition with foul odour. Inside the paper envelope was a cloth bag (fabric packet). The sample was in form of foul smelling dark greenish brown pasty matter containing small crushed bits of leaves. Parts of plants like stem, root etc. were not found. It was observed by the Chemical Examiner in the analysis report that the sample did not have the characteristic of whole poppy plants since only leaves could be identified. From the perusal of recovery memo (Ex. P. 1) it appears that average height of poppy plant was eight inch and twenty plants of average height of eight inch were sealed in a packet for chemical analysis. A doubt does therefore arise as to why only the leaves were found in the packet? When the sample did not have the characteristic of whole poppy plants, how charge under Section 8/18 of the Act is established against the appellant?

(b) From the material on record it could not be established that the accused appellant had been in exclusive possession of the field or connected with the cultivation of poppy plants in any manner. Phool Chand (P. W. 1) states in his cross examination that Pratap Bai was the Khatedar tenant of alleged agricultural land, it was owned and possessed by her and whole family of Pratap Bai used to cultivate it. In the last line of his cross examination Phool Chand pointedly says that plants of opium had not been shown by Jagdish. Strangely the prosecution did not declare Phool Chand (P. W. 1) hostile. Now comes the confessional statement of accused Jagdish. Information can be called by the Investigating Officer from the accused under Section 67 of the Act, which is pari materia with the provisions of Section 108 of the Customs Act. In Veera Ibrahim v. State of Maharashtra, AIR 1976 Supreme Court 1167, it was held that confessional statement can be used against the accused, when recorded before any complaint or F.I.R. had been lodged against him. In the case on hand the poppy plants were seized on February 3, 1996 vide Ex. 1 by Prakash Dhyani, Deputy Inspector, Central Narcotics Bureau and confessional statement of accused Jagdish was also recorded on February, 3.
A look at the statement of accused Jagdish reveals that his statement was recorded after drawing the seizure memo of the poppy plants. Prakash Dhyani (P. W. 4) who recorded the statement of accused Jagdish does not say that the statement was recorded before drawing F.I.R. The statement of the accused recorded under Section 67 of the Act does not appear to the voluntary and it can not be used against him.

5. After scanning the prosecution evidence a doubt crops in mind in respect of conscious possessi