The prosecution must establish conscious possession of contraband, and procedural irregularities can cast doubt on the prosecution's case.

Mahesh Grover, J

1. This appeal is directed against judgment and order dated 29.10.2003 of the Additional Sessions Judge, Sirsa (hereinafter described as `the trial Court') whereby the appellant has been convicted and sentenced under Section 15 of the Narcotic Drgus and Psychotropic Substances Act,1985 (for short, `the Act'), to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.one lac and in default of payment of fine, to undergo further rigorous imprisonment for two years.

2. The facts of the case are that on 21.12.2000, when Shri Randhir Singh, Station House Officer, Police Station, Sadar, Dabwali, along with other police officials was present in the area of village Phullo in connection with Nakabandi at canal bridge, he saw a maruti car bearing no.HR-01-8667 coming from the side of the village. The occupants of the car, on seeing the police party, stopped it, came out and tried to run away. One of them was captured. He is stated to be the appellant herein. However, the other person managed to escape. The appellant was served with a notice asking him whether he desired to be searched before a Magistrate or a gazetted officer as a measure of compliance of Section 50 of the Act. However, he declined the offer. Thereafter, the search of the car was conducted and four bags, each containing forty kilograms of poppy straw were recovered therefrom. Two samples weighing 200 grams each were separated from each of the bags. The samples and the bags were separately sealed and taken into possession vide recovery memo Exhibit-PD. The car in question was also seized. A rough site plan of the place of recovery was prepared. The statements of the witnesses were recorded under Section 161 of the Cr.P.C. and the appellant was arrested. An F.I.R. was got registered by sending a ruqa to the police station. The case property and the samples were deposited in the malkhana and after completion of necessary investigation, a challan was presented against the appellant as he was prima facie found guilty of an offence punishable under Section 15/16 of the Act.

3. The appellant was charge sheeted under Section 15 of the Act by the trial Court and the prosecution was directed to produce its evidence. As many as four witnesses were examined by the prosecution and thereafter, the statement of the appellant was recorded under Section 313 of the Cr.P.C. in which he denied the allegations levelled against him and pleaded that he has been falsely implicated. In his defence, he produced two witnesses, namely, DW1-Ramesh Kumar, Constable and DW2-Sher Singh, Constable.

4. After appraisal of the entire evidence before it, the trial Court came to the conclusion that the offence alleged against the appellant stood established and, therefore, he was liable to be convicted and sentenced of the same. By the impugned judgment and order, he has been convicted and sentenced as noticed hereinabove.

5. While assailing the conviction and sentence of the appellant, learned counsel for the appellant contended that the prosecution story suffers from grave defects. He underlined the following infirmities:-

1. Even though it is the case of the prosecution that there were two persons in the car, but no question was put to the appellant regarding the other person either during the investigation or during the course of trial as to who was he. Moreover, no attempt was made by the police to apprehend that person.

2. No attempt was made to establish the identity of the car and its owner & driver.

3. PW3-Kishori Lal was silent about the seal which was affixed on the samples extracted from the recovered bags, being handed over to him, but the report of the Forensic Sciences Laboratory refers to the sample seal which was received there. There is no explanation as to how the seal was appended to the samples.

4. No question was put to the appellant regarding his being in conscious possession of the contraband when he was examined under Section 313 of t