JUDGMENT :

D.P. CHOUDHURY, J.

The captioned two appeals having being preferred out of a common judgment dated 28.7.2007 of conviction and sentence passed by the learned Sessions Judge-cum-Special Judge, Nabarangpur in Criminal Trial No. 92 of 2007 under section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the N.D.P.S. Act) is hereby disposed of by this common judgment.

FACTS :

2. The factual matrix leading to case of the prosecution is that on 24.5.2007 at about 11.30 P.M. Sri N.C. Barik, Officer-in-Charge (O.I.C.), Kodinga Police Station on receipt of reliable information, proceeded with his staff to village Panarguda. On 25.5.2007 at early morning said O.I.C. along with the staff made raid to a cashew field and found that the accused persons-appellants were possessing 21 packets and one attaché giving smell of Ganja. Due to paucity of time he gave information to his superior Officer, complying Section 42 of the N.D.P.S. Act for making search and seizure of the accused persons. In compliance to Section 50 of the N.D.P.S. Act the concerned O.I.C. asked the accused persons in writing as to whether they would be searched in presence of the Executive Magistrate or Gazetted Officer and the accused per sons gave consent to be searched in presence of the Executive Magistrate. So the O.I.C. sent for the Executive Magistrate by issuing requisition. After few hours the Executive Magistrate came. In presence of the Executive Magistrate, outside witnesses and official witnesses the concerned O.I.C. searched the accused persons-appellants, recovered 21 packets containing Ganja and also one attaché containing Ganja having total quantity of 283.500 K.Gs. of Ganja on measurement. Then the O.I.C. seized the Ganja with containers from the possession of the accused persons. The O.I.C. took samples of the seized Ganja, sealed the samples and rest of the Ganja as per the procedure under the N.D.P.S. Act. It is the further case of the prosecution that after the sample packets and rest of the packets being properly sealed as per the procedure, seizure list was prepared in presence of the Executive Magistrate and the witnesses. After search and seizure of the contraband Ganja was made, the concerned O.I.C. kept the sample of Ganja and the rest bulk of the seized Ganja in the Malkhana of the Police Station and lodged F.I.R. Then the C.I. of Police took over the investigation from the concerned O.I.C. The seized sample packets and bulk packets were produced before the court and the sample packets were sent for chemical analysis to the Regional Forensic Science Laboratory. Chemical Examiner on examination of samples, found same to be Ganja. After completion of necessary investigation the charge sheet under Section 20(b)(ii)(c) of the N.D.P.S. Act was submitted against the accused persons.

3. The plea of the accused persons is just denial of the conscious possession of Ganja contravening the provision of NDPS Act and Rules made thereunder and seizure of same from their possession.

4. The learned trial court after analyzing the evidence of 13 witnesses examined on behalf of the prosecution and on perusal of the documents filed by the prosecution came to the conclusion that the accused persons were in exclusive conscious possession of homogeneous Ganja without any authority and as such, convicted them under section 20(b)(ii)(c) of the N.D.P.S. Act and handed over the sentence to each of the appellants.

SUBMISSIONS :

5. Learned counsel appearing for the appellants strenuously submitted that there are strong discrepancies between the evidence of witnesses as to the seizure of Ganja from the exclusive conscious possession of the accused persons and the learned trial court erred in law in appreciating the evidence of prosecution witnesses. He further submitted that the learned trial court erred in law by relying on the testimony of the official witlessness inasmuch as the official witnesses like the I.O. and the O