JUDGMENT :

S.K. SAHOO, J.

The two appellants Biswanath Bisoi @ Harijan and Biren Mandal @ Birendra Mandal faced trial in the Court of the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri in Criminal Trial. 114 of 2008 for the offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘the N.D.P.S. Act’) on the accusation that on 07.12.2008 in between 8.00 a.m. to 3.00 p.m. at Govindapali near Balimela chawk, they were found in possession and transportation of 478 kgs. of contraband ganja without any authority and permit.

The learned Trial Court vide impugned judgment and order dated 29.03.2010 found both the appellants guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced each of them to undergo R.I. for a period of ten years and also to pay a fine of Rs.2,00,000/- (rupees two lakhs only) each, in default of payment of fine, to undergo further R.I. for a period of two years each.

2. The prosecution case, in short, is that on 07.12.2008 P.W.4 Ashok Kumar Seth who was the S.I. of Excise, in charge District Mobile, Malkangiri along with other staff were performing patrolling duty on the road in between Govindapalli to Balimela and during patrolling, P.W.4 received reliable information regarding illegal transportation of contraband ganja in a truck bearing registration no.CG-04-ZC-1604. He reduced the information into writing and sent the same to his immediate Superior Officer vide Ext.4 through a constable Ram Chandra Satapathy. P.W.4 and other patrolling party members waited at Tiluguda near Govindapalli awaiting for the arrival of the said truck and after some time, the truck came from Balimela side towards Govindapalli and they tried to detain the truck but the driver did not stop the vehicle and sped away from the spot. The excise officials chased after the truck and could manage to stop it near Biju Patnaik College, Govindapalli and they found that both the appellants were present inside the truck and appellant Biswanath Bisoi was occupying the driver’s seat. Both the appellants disclosed their identity. P.W.4 disclosed his intention to search the vehicle and asked the option of the appellants whether they intend to be searched in presence of any Executive Magistrate or Gazetted Officer to which they stated that they intend to be searched in presence of the Executive Magistrate. The written option in that respect vide Exts.5 and 6 were taken from the appellants and then requisition was sent through constable to the headquarters for an Executive Magistrate and then two independent witnesses of that locality were also called. It is the further prosecution case that after arrival of the Executive Magistrate (P.W.2) at the spot, P.W.4 apprised him of all the details about the detection of the case and also the intention of the appellants for their search in the presence of the Executive Magistrate. P.W.4 and others staff gave their personal search to the appellants as well as to the Executive Magistrate but nothing was found from their possession. P.W.4 searched the person of the appellant Biren Mandal first and recovered cash of Rs.200/- (rupees two hundred only) from the pant pocket and one Nokia mobile set from his shirt pocket and then on search of appellant Biswanath Bisoi @ Harijan, cash of Rs.100/- (rupees one hundred only), voter identity card and duplicate driving licence were recovered from his pant pocket. Some documents of the vehicle which were kept in a leather bag inside the cabin of the truck were also seized. On search of the secret chamber between the cabin and dala of the truck, P.W.4 found 61 pressed packets with smell of ganja. He collected small quantity of the contents from each of the said packets and subjected the same to smell test as well as burn test and from the aforesaid test as well as from his departmental experience of thirteen years, P.W.4 came to the conclusion that the contents were contraband ganja. P.W.4 weighed th