seized contraband was recovered from the possession of the present appellant. During their cross-examination, both of them deposed that the seized contraband was recovered from the belonging of the appellant. However, none of them specified as to from which belonging of the appellant, the seized contraband, which are kept in 42 numbers of soap cases, was recovered. Whether it was a trunk, or suitcase, or briefcase, or carry pack, or a back pack or from the body or apparel of the accused person? Nothing was clarified by any of the above mentioned two witnesses. By merely stating that the contraband was recovered from the possession of the accused, without clarifying as to from where it was recovered is not sufficient to arrive at the conclusion that same was recovered form the possession of the appellant. This is more so, when the testimony of PW-1 & PW-2 shows that there was one more person, i.e., the driver in the said vehicle. His testimony was of vital importance in this case. If the said driver is not involved in the offence alleged in this case, he could have been the best witness to testify as to from where the contraband was recovered. However, no whisper about the role of the driver has been made either in the Charge Sheet or in the testimony of the prosecution witnesses. More over both the PW-1 & PW-2 had deposed that apart from the accused, one driver was also there in the said vehicle, whereas, the PW-3 & PW-4 have not stated anything about the driver in their deposition. As such, the testimony of not only PW-3 & PW-4 but also of PW-1 & PW-2 becomes unreliable and unworthy of any credence. This Court is, therefore, of the considered opinion that the prosecution side has miserably failed to prove the factum of possession of the contraband by the appellant. Under such circumstances the appellant is entitled to get the benefit of doubt, which this Court, hereby gives to him. As such on that count only the impugned judgment is liable to be set aside.
