R. K. PATRA, J.

( 1 ) THIS is an appeal under section 36-B of the Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter referred to as the Actt) read with sub-section (2) of section 374 of the Code of Criminal Procedure, 1973 (in brief TCr. P. C. T) against the conviction of the appellant under section 18 of the Act who has been sentenced thereunder to undergo rigorous imprisonment for ten years and to pay a fine of one lakh rupees in default to undergo rigorous imprisonment for further period of two years.

( 2 ) THE prosecution case mar be briefly unfolded. On 21. 4. 1990 the Inspector of Excise, Purl Sadar (P. W. 6) along with his staff which included P. W. 1 Sub-Inspector of Excise and P. W. 2 Excise constable had been to Sakhigopal area on detection duty. One Magistrate examined as P. W. 6 had accompanied them along with some A. P. R. force. While returning to the headquarters, they halted for sometime on the way at Chandanpur to take betel etc. During their halt, P. W. 2 (Excise Constable) was informed about the traffic of opium by the appellant and this information was conveyed by P. W. 2 to P. W. 5 who immediately with his staff and the Magistrate proceeded towards. Birabalabhadrapur in the jeep. Near Gopinath Jew Temple at Birabalabhadrapur, they found the appellant was talking with P. W. 3. Accordingly P. W. 5 asked the appellant to be present there as he would be searched. P. W. 5 requested P. W. 3 (with whom the appellant was talking and called P. W. 4 to remain present at the spot for sometime so that search of the appellant could be done. P. W. 5 asked the appellant whether he was desirous to be searched in presence of a Magistrate and when the appellant replied in affirmative, after observing all formalities of search and seizure, he searched the appellant in presence of the witnesses and recovered one polythene packet containing contraband opium. The weighment of the opium was done at the spot which came to be 40 grams. After making further search of the shirt pocket of the appellant. P. W. 5 recovered one tin diba containing a small nikitit, one batakara of 20 grams, four coins of different denominations for use as batahra and a small knife M. O. III. After completing other formalities, P. W. 5 arrested the appellant at the spot and brought him to the headquarter along with the seized articles. The opium was sent for chemical analysis and after completing enquiry, prosecution report was filed against the appellant who was put up for trial in the Court of Second Additional Sessions Judge, Pun which has

ended in his conviction under Section 18 of the Act.

( 3 ) THE appellant took the plea of complete denial.

( 4 ) PROSECUTION examined six witnesses. P. W. 1 was the Sub Inspector of Excise. P. W. 2 was the Excise Constable. Both of them had accompanied P. W. 5, the Inspector of Excise on detection duty. P. Ws. 3 and 4 were witnesses to search and seizure. As both of them turned hostile, prosecution put them leading questions. P. W. 6 was the Executive Magistrate who had accompanied the Excise staff on detection duty. The learned Second Additional Sessions Judge came to hold that the appellant was in possession of the opium without any authority and accordingly held him guilty under section 18 of the Act.

( 5 ) THE gravaman of the charge against the appellant was that he was found in an unlawful possession of 40 grams of contraband opiumt on the date of occurrence and thereby committed an offence punishable under section 18 of the Act. Let me examine if the prosecution has been able to prove that the appellant was in possession of 40 grams of contraband opium. P. W. 5 has testified that during their halt at Chandanpur he was informed that the appellant was going to his village Birabalabhadrapur with some opium. After having come to know the same, he along with P. Ws. 1,2 and 6 proceeded in the jeep and near Gopinath Jew Temple of village Birabalabhadrapur the appellant was found and he was asked to