The prosecution failed to prove the exclusive possession of contraband by the appellant, warranting the benefit of doubt and resulting in acquittal.

S.K. Sahoo, J.

1. The appellant Kanhei Hira faced trial in the Court of the learned 2nd Addl. Sessions Judge, Berhampur in 2(a) C.C. Case No. 9 of 2004(N)/T.R. No. 4 of 2007 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter 'N.D.P.S. Act') on the accusation that on 27.12.2004 night at about 12.30 a.m., he was found transporting 21 kgs. 250 grams of ganja at Podamari Forest Check Gate while travelling in O.S.R.T.C. bus plying from Motu to Bhubaneswar violating the provisions under section 8(c) of the N.D.P.S. Act.

2. The learned trial Court found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- (rupees one lakh), in default, to undergo rigorous imprisonment for a further period of two years.

2.1 The prosecution case, in short, is that on the intervening night of 26/27.12.2004 at about 2.30 a.m. while Sri Nalini Kumar Behera (P.W. 2), S.I. of Excise, E.I. & E.B., Berhampur was performing night patrolling duty along with his staff near Podamari Forest Check Gate, one O.S.R.T.C. bus bearing registration No. OR-02V-8467 was coming from Motu to Bhubaneswar and arrived at the Check Gate. The Excise Officials detained the bus and searched and during the search, it was found that the appellant was found sitting in seat No. 32 by keeping one white colour 'jari' bag beneath his seat and on being asked, he claimed it to be of his own and on further query on suspicion, he disclosed that it contained ganja. The appellant failed to produce any authority in respect of the contraband article. The bag was opened in presence of the witnesses and ganja was found in it and it was weighed, which came to 21 kgs. 250 grams. P.W.2 drew two samples of 50 grams each and sealed the sample packets as well as the packets containing bulk ganja, by using his brass seal and prepared the seizure list, supplied a copy of it to the appellant and arrested him and brought him in the jeep under custody, but the appellant escaped by jumping from the jeep near Kelua Chhak taking advantage of darkness. The seized properties were produced before the learned Special Judge and samples were sent to S.D.T.R.L. for chemical examination and on chemical analysis, the samples were opined to be containing ganja/cannabis as defined under section 2(iii)(b) of the N.D.P.S. Act. On completion of investigation, the prosecution report was submitted by P.W.2 under section 20(b)(ii)(C) of the N.D.P.S. Act against the appellant on 02.04.2007. The appellant who was absconding was arrested and produced in Court on 03.12.2006.

3. The defence plea of the appellant is one of denial.

4. In order to prove its case, the prosecution has examined as many as three witnesses.

P.W.1 Sudarsan Behera was the Excise Constable of E.I. & E.B., Berhampurand he stated about the search of the O.S.R.T.C. bus on 26/27.12.2004 night in between 2.30 to 3O' clock and stated to have recovered ganja from a bag, which was under seat No. 32 where the appellant was found sitting. He further stated about drawal of samples of ganja by P.W.2 and sealing of the sample packets so also bulk ganja packet and preparation of seizure list Ext. 1. He is a witness to the seizure. He identified the bulk ganja as M.O.I. and the sample packet' as M.O.II. He further stated that the appellant was arrested and brought along with the seized articles, but he escaped on the way by jumping out of the jeep and accordingly only seized articles were produced in Court.

P.W.2 Nalini Kumar Behera was the S.I. of Excise, E.I. & E.B., Berhampur,