JUDGMENT

P. K. TRIPATHY, J. — Appellant was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the Act’) and sentenced to undergo R.I for ten years and to pay a fine of rupees one lakh by learned Assistant Sessions Judge, Kamakshyanagar as per the impugned judgment delivered in Sessions Trial No. 17-D/4 of 1989. That order of conviction and sentence is under challenge in this appeal.

2. According to the prosecution, on 19.10.1988 on receipt of information from the Excise Constable Akshya Kumar Mohapatra (P.W.2) the S.I. of Excise, Kamakshyanagar namely Kasinath Biswal (P.W.1) conducted a raid of the betel shop situated at the out¬skirt of village Khokasa under Kamakshyanagar P.S.accused was then in that shop. On search, 100 gms. of non-duty paid Ganja was recovered from a ‘tin-dibba’ and 5 gms. of contraband opium from a ‘Zarda-Dibba’. The same was seized in presence of the excise staff and two independent witnesses namely Hata Kishore Khuntia (P.W.3) and Kunja Behari Gochhayat (P.W.4). Accused was arrested and produced before the Magistrate on 20.10.1988. The seized article, which was kept in a sealed packet, was sent for chemical analysis through Court on 27.1.1989 and on 31.12.1988 prosecution report was submitted for the offence under Section 18 of the N.D.P.S. Act. The S.D.J.M., Kamakshyanagar committed the case to the Court of Sessions Judge, Dhenkanal in the absence of a Spe¬cial Court constituted under Section 36 (1) of the Act by that date and learned Sessions Judge on 23.2.1989 transferred the case to the file of Assistant Sessions Judge, Kamakshyanagar for trial and disposal according to law.

3. Learned Assistant Sessions Judge, Kamakshyanagar framed the charge under Section 18 of the N.D.P.S. and took up the trial. The aforesaid witnesses were examined as P.Ws. 1 to 4 and the seizure-list (Ext.1), Forwarding letter (Ext.3) and the opinion report of the Drugs Controller (Ext.4) were relied on. The seized articles with containers were marked as M.Os. 1 to V. In course of the trial P.Ws. 3 and 4 did not support the prosecu¬tion case. They were confronted with their previous statements recorded by P.W.1, but such statements were not proved and exhib¬ited. The trial Court assessed the evidence on record and while rejecting the contention of the defence (1) that prosecution has not been able to prove that the shop from which the articles were seized belongs to the accused or that the articles were seized from his possession, (2) that, the seized article was opium, (3) that, the procedure contemplated in the Act relating to search and seizure were not complied with and, above all, (4) that, there is no independent corroboration to the version of P.Ws.1 and 2, regarding search and recovery of the said article from the possession of the accused, convicted the appellant basing on the report that ganja and opium was seized and treating the evidence of P.Ws.1 and 2 as sacrosanct and sentenced him in the aforesaid manner.

4. In the appeal, the appellant has adopted a pedantic manner while agitating against the order of conviction by stating that the evidence of P.Ws.1 and 2 are not reliable and therefore the finding recorded by the trial Court is liable to be set aside.

5. After going through the record, this Court finds that the whole process is a bundle of illegalities and carelessness attributable to prosecution, the Court and the defence, and such circumstances are briefly reflected, as follows.

6. It is needless to say that Section 18 of the Act pro¬vides for punishment for contravention of the provisions in the Act in relation to opium poppy and opium, whereas Section 20 (b) provides for punishment for contravening any provision of the Act in relation to manufacturing, possessing, selling, purchasing and transporting etc. of canabis i.e. Ganja. Though according to the case of the prosecution 100 gms of non-duty paid Ganja was recovered, but the prosecution report did not qu