IMPORTANT POINT
Ina case of recovery of garya, charge framed under Section 20(b) of NDPS Act without specifying whether offence was under sub-clause (i) or sub clause (ii) of Clause (b) of Section 20, charge would be defective and would occasion failure of justice.

JUDGMENT

P.K. Patra. J. - The appellant has challenged the judgment dated 11-10-1999 passed by Shri N.N. Praharaj. Special Judge, Jajpur in 2(a) CC Nos. 83 of 1992 and 39 of 1993 convicting him of the charge under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter referred to as 'the Act') and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000.00 (one lekh), in default to undergo rigorous imprisonment for a further period of one year.

2. Prosecution case briefly stated is as follows: On 7-8-1992 at about 3 p.m. while P.W. 3. a Sub-Inspector of Excise. E.1 & E.B. Unit-I. Cuttack was performing patrol duty in village Ekadalia, received information from P.W. 4. a co-villager of the appellant (hereinafter referred to as 'the accused'), that the accused had concealed Ganja under a bush at the outskirt of the village. So he proceeded to the spot with his staff being led by P.W. 4 and found that the accused was pulling out two gunny bags from under the bush. They surrounded him detained him and recovered the two gunny bags, one containing 19 kgs and the other 200 kgs 500 grams of Ganja. While the seizure was in progress the accused escaped from the spot and attempt to apprehend him failed. On 8-81992 P.W. 3 produced the seized gunny bags before the S.D.J.M. Jaipur with a prayer to draw samples of the articles contained therein for sending the same to the State Drug Testing Laboratory at Bhubaneswar. Since 8th and 9th of August. 1992 were holidays, as directed by the S.D.J.M. P.W. 3 again produced the same on 10th August. 1992 and the S.D.J.M. drew samples of 25. grams from each gunny bag and sent the same for chemical examination which confirmed the contents of the gunny bags to be Ganja (cannabis) After completion of the formalities of investigation. P.W. 3 submitted prosecution report against the accused who stood his trial. Since at the time of production of the seized Ganja 2(a) CC No. 83 of 1992 had been registered and at the time of submission of the prosecution report 2(a) CC No. 39 of 1993 had been registered. Both the cases were clubbed up together in trial No. 2 of 1998. The learned Special Judge found the accused guilty and convicted him of the charge under Section 20(b) of the Act and sentenced him as stated above.

The plea of defence was one of denial of recovery of any contraband article from the exclusive and conscious possession of the accused.

3. Heard Mr. B. Panda, learned Counsel for the accused, and the learned Addl. Standing Counsel for the State at length. Mr. Panda, contended that the impugned judgment cannot be sustained since the learned Special Judge failed to appreciate the defence stand that the contraband article was not seized from the exclusive and conscious possession of the accused and there was noncompliance of the mandatory provisions of the Act. He also contended that infliction of sentence of rigorous imprisonment for ten years and a Cine of Rs. 1,00,000.00 (one lakh) is contrary to law. The learned Addl. Standing Counsel supported the impugned judgment.

4. Prosecution has examined five witnesses in all to bring home the charge against the accused. P.W. 3 is the Sub-Inspector of Excise who detected the case. P.W. 2 is another S.I. of Excise who submitted the prosecution report showing the accused as absconder. P.W. 1 is an Excise Constable who accompanied P.W. 3 on patrol duty, P.W. 4 is a co-villager of the accused who informed P.W. 3 about concealment of Ganja by the accused and P.W. 5 is another co-villager of the accused who was a witness to the seizure. The two independent witnesses, i.e. P.Ws. 4 and 5. turned hostile and did not support the prosecution case. The learned Special Judge placed reliance on the statements of the three official witnesses and convicted the accused.

5. Though it is alleged by the prosecution that contraband Ganja was seized from the accused, charge has been framed under Section 20(b) of