The prosecution must provide clear, cogent, and clinching evidence to substantiate the charges under the N.D.P.S. Act, and compliance with the provisions of the Act is crucial in determining the guilt of the accused.

JUDGMENT :

S.K. SAHOO, J.

The appellant Pramod Das in CRLA No.535 of 2016 and the appellants Pradeep Parida and Babaji Sahu in CRLA No.572 of 2016 faced trial in the Court of learned Special Judge, Gajapati, Parlakhemundi in G.R. Case No.31 of 2013 (T.R. No.14 of 2014) for offences punishable under sections 20(b)(ii)(C)/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) on the accusation that on 08.10.2013 at about 11.30 a.m. at Chaptapanka chowk, they were found transporting 71 kgs. 60 grams of contraband ganja in three jari bags through a white colour Indica car bearing registration No.OR-05-Z-9076 without having any licence or authority and they were knowingly using the said car for transportation of ganja and were party to criminal conspiracy.

The learned trial Court vide impugned judgment and order dated 24.09.2016 held the appellants not guilty of the offence under section 29 of the N.D.P.S. Act but found them guilty under sections 20(b)(ii)(C)/25 of the N.D.P.S. Act and sentenced each of them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1,00,000/-(rupees one lakh) each, in default, to undergo further rigorous imprisonment for a period of one year for the offence on each count and the sentences were directed to run concurrently.

Since both the criminal appeals arise out of same judgment, with the consent of learned counsel for the respective parties, those were heard analogously and disposed of by this common judgment.

2. The prosecution case, in short, is that on 08.10.2013, as per the direction of the Inspector in-charge of Mohana police station Sri B.P. Minj (P.W.14), Sri Mrunal Kalo (P.W.13), the S.I. of Police of the said police station along with other police staffs, namely, Sri Jagadish Panda (P.W.1), the A.S.I. of Police, constable Rajib Sabar (P.W.10), constable Ramakanta Sabar (P.W.3) and two home guards were performing patrolling duty at Chapatapanka area and at about 11.30 a.m., they found that one white colour Indica car bearing registration No.OR-05-Z-9076 was coming from Adava side in a high speed. They intercepted the said vehicle and found that the appellants were the occupants of the said vehicle. They also found the smell of ganja was coming out of the vehicle. P.W.13 interrogated the occupants who revealed their names and the appellant Pramod Das was the driver of the vehicle, the appellant Pradeep Parida was sitting on the front seat and the appellant Babaji Sahu was sitting in the back side of the vehicle. The appellants confessed before P.W.13 that they were transporting the ganja in the vehicle to Berhampur for sale. The driver appellant Pramod Das opened the dickey of the vehicle and two jari packets containing ganja was found in it and another jari packet was also found on the back seat of the vehicle by the side of appellant Babaji Sahu. P.W.13 immediately informed about the detection to the Inspector in-charge of Mohana police station Sri B.P. Minj (P.W.14) and also to the Superintendent of Police, Gajapati over phone. The appellants further revealed that they collected the ganja from Raygada area and they were transporting the ganja at the instance of the owner of the vehicle to Paradeep. P.W.13 issued a single notice to all the appellants to give their options about their right to be searched in presence of a gazetted officer or a Magistrate and the appellants opted to be searched in presence of a gazetted officer. P.W.13 informed P.W.14 about the option given by the appellants and requested him to send a gazetted officer to the spot. P.W.13 directed P.W.10 to bring a weighman along with weighing machine and P.W.13 called the two independent witnesses, who were passing on the road to be present at the time of search and seizure. At 2.50 p.m., the S.D.P.O. R.Udayagiri Sri Rabindra Kumar Sethi (P.W.11) arrived at the spot to act as gazetted officer and the weighman Sri Simanchal Sahu (P.W.7) also arrived. P.W.11 ga