JUDGMENT

A. K. PARICHHA, J. : The appellant has challenged the order passed by learned Additional Sessions Judge-cum-Judge, Special Court Jharsuguda in T.R. Case No.36 of 2000 dated 5.5.2005 con¬victing him under Section 20(b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘N.D.P.S. Act’) and sentencing him to undergo R.I. for 15 years and to pay fine of Rs.1,00,000/- in default to undergo R.I. for a further period of five years.

2. Prosecution case is that on receipt of reliable infor¬mation, the O.I.C., Jharsuguda Police Station on 27.07.2000 conducted search in the betel shop of the appellant at Marwaripa¬da in presence of Magistrate and witnesses and recovered several paper packets containing Ganja in total amounting to Kg 2.610 gms along with 51 nos of Ganja-Smoking pipes (Chillum). On the same day the O.I.C. also conducted search of the house of the appellant in presence of the witnesses and Magistrate and recovered one tin box, one gunny bag, some polythene bags containing more than Kgs 25.200 gms of Ganja. It is alleged that the appellant was illeg¬ally trading ganja and more than 25 kgs of contraband ganjas were recovered from his conscious possession.

3. The plea of the appellant was one of complete denial.

4. To bring home the charge against the appellant prosecu¬tion examined seven witnesses and exhibited documents, which were marked as Exts.1 to 12. The appellant did not produce any witness or document. On consideration of the evidence on record learned Special Judge came to the conclusion that the appellant was treading contraband Ganja and was in conscious possession of Ganja amounting to commercial quantity. He accordingly, convicted and sentenced the appellant as indicated above.

5. Miss Deepali Mohapatra, learned counsel for the appellant challenged the correctness of the impugned judgment basically on the ground that the charge framed against the appellant was defective, that there was lack of credible evidence to establish the conscious possession of the appellant over the seized Ganja, that mandatory procedures of Section 42(2) and Section 50 of the N.D.P.S. Act was not followed by the I.O. On the issue of charge Miss. Mohapatra specifically submitted that the time and the provision of law mentioned in the charge are incorrect and as such the charge is defective and that once the charge is defective,the order of conviction is liable to be set aside. In support of this contention, she cited the Cases of Salim Khan v. The State of Orissa, (2000) 19 OCR-48 and Mayadhar Swain and another v. State of Orissa, 91 (2001) C.L.T. 283 wher¬ein it has been remarked that if the charge is defective and such defect has occasioned in failure of justice then conviction is liable to be set aside. In these cases charge had been simply framed under Section 20(b) without specifying whether it was an offence under Sub-clause (i) or Sub-clause (ii) of Clause (b) of Section 20 of the N.D.P.S. Sub-Clause (i) of clause (b) of Sec¬tion 20 prescribes punishment for cultivation of cannabis, wher¬eas Sub-clause (ii) provides punishment for production, manufac¬ture, possession, sells, purchase, transports, imports and export etc. relating to small quantity and lesser than commercial quant¬ity and commercial quantity of cannabis. When the charge specifi¬cally indicated that the appellant was in possession of the contraband Ganja of specific quantities in different places, the charge cannot be said to be defective to the extent of causing prejudiced to the appellant. As has been said in the Case of Durgo Bai & another v. State of Punjab, 2004 (6) Supreme 93 formal defect in charge which has not caused any prejudice to the accused is not fatal to the prosecution case and on the ground of such formal defect the conviction can not be set aside. When there was specific allegation in the charge, as well as in the questions put to the accused at the time of recording of his statement about his possession of par