JUDGMENT T.K. Chandrashekhara Das, J. - The appellant was found guilty by the Court below under section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment of two years six months and to pay a fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a period of six months. 2. The prosecution case is that on 22.1.1993 when the P.S.I. Sunita Sawant along with P.I. Tony Fernandes another P.S. Is. Shaik Ali, B.R. Sahane, F. D'Souza, some Head Constables and Constables all attached to A.N.C., accompanied by two panchas, Ratnakar Mandrekar and Alexander Hercules Marques were about to leave the police headquarters for random checking of drugs at about 4.30 p.m., one informant (not examined in this case) came and told P.I. Tony Fernandes in Konkani that two persons on a Kinetic Honda No. GDK 2227 were riding in pursuit of the purchasers of ganja. On receipt of this information the aforesaid members of the raiding party along with the panchas went in pursuit of the accused and caught hold of these riders of Kinetic Honda. Accused no. 2 was found driving the Kinetic Honda, while the accused no. 1 was sitting on the pillion seat holding the big parcel wrapped in white cloth on his lap. When the bundle was unwrapped it was found that there was ganja weighing 14.200 kgs. After observing the formalities 1 kg. was taken as sample and sealed and sent for chemical analysis. A scene panchanama was prepared for having taken custody of the article. They had also seized from accused DO. 2 on search of his person, five visiting cards in the name of A.S. Maniyan and call1etter of Goa Velha Police Station. They have also seized from accused no. 1 five visiting cards in the name of Syed Gayasoodin, one registration card of G.D.R. Hospital, Hyderabad in the name of Gayasoodin and cash of Rs.35/- in different denominations in his shirt pocket. One duplicate driving licence in his name was also seized from his person. Ultimately they were arrested and subsequently charge-sheeted. 3. Though originally both the accused were charged under section 20 (b) (i) r/w Section 29 of the N.D.P.S. Act, after trial the second accused was acquitted. 4. The lower Court found that the first accused was guilty under section 20 (b) (i) of the aforesaid Act. Ultimately they were arrested and subsequently charge-sheeted. 3. Though originally both the accused were charged under section 20 (b) (i) r/w Section 29 of the N.D.P.S. Act, after trial the second accused was acquitted. 4. The lower Court found that the first accused was guilty under section 20 (b) (i) of the aforesaid Act. It was found under the incriminating circumstances that he was carrying the bundle while he was riding in the back seat of the Kinetic Honda and he has pointed out the trunk box in which the ganja was kept and the trunk box was recovered from the place of residence. 5. This is the main important extenuating circumstance to find the accused no. 1 guilty. The accused no. 2 was acquitted mainly on the ground that the prosecution did not prove his connection with the contraband article. Though the prosecution has argued that there was conspiracy between them, the Court found no such conspiracy. The Court, on the other hand found that he was unaware of the design of the first accused though thc first accused was residing in the house of the second accused; that the Kinetic Honda used to be taken by the second accused for giving delivery of clothes; that the second accused was also running a laundry; that the second accused was not 1:lble to identify the ganja on the circumstance that he could smell the ganja for the first time when the first accused opened the bundle in front of the raiding party and also that he could smell the ganja in the empty box when the first accused pointed out and opened it before the police. In these circumstances the Court below found that the second accused has no connection with the offence committed by the first accused and he cannot be charged under section 29 of the Act and therefore he was acquitted. 6. On reading the evidence and the judgment of the Court below it appears that both the prosecution and the Court below have traveled at a different tangent. The Court failed to find that some more material and persons have been suppressed behind the scene. It is surprising to note that the information was given by a person who came to the raiding team and directly gave information in person to the police. The Court failed to find that some more material and persons have been suppressed behind the scene. It is surprising to note that the information was given by a person who came to the raiding team and directly gave information in person to the police. Normally one could visualise that either he must be cited as a Witness or he must be cited as an accused because the source of information emanates from him. I am at a loss to understand why the raiding party though it contains several persons even panch witnesses, had not taken the informant while they went for tl1e search of the accused. The information which he gave is positive information, not suspicious information that the accused nos. 1 and 2 were searching for purchasers of ganja. Many factors are therefore submerged in this case. 7. Another circumstance which appears to be quite strange is the ground on which accused no. 2 was acquitted. The circumstance that the second accused did not express any unwillingness to examine his body and that he appears to be very innocent which are the circumstances under which he was acquitted on the ground that he had no connection with the offence: But those circumstances, I find equally applicable to the second accused also, because there is no evidence in the case that he has shown any resistance in making search of his person or pointing out the trunk box in which the ganja was kept. The interesting part is that the first accused is a host of the second accused. He is a stranger in Goa He came from Hyderabad about one or two days ago and he was given shelter by the second accused. It was carrying with him a trunk box weighing more than 14 kgs. and a bag containing his clothes. The trunk box was recovered by the police on the iron box of the laundry belonging to the second accused. The statement of the second, accused that he was unaware of this ganja and he is not even familiar with the smell of ganja could be hardly appreciated. It looks very artificial. If a person who is staying as a host with the second accused, taking ganja out of the box and wrapped in white cloth was done without the knowledge of accused No.2 cannot be believed at all. It looks very artificial. If a person who is staying as a host with the second accused, taking ganja out of the box and wrapped in white cloth was done without the knowledge of accused No.2 cannot be believed at all. Therefore the mere statement or the conduct of the second accused that he was unaware of the contents of the wrapper of white cloth till the police seized and opened it is quite difficult to swallow. 8. Therefore in the circumstances shown above the prosecution was not successful to reveal the actual truth in this case. As prosecution story started that there was conspiracy hatched between the accused, then there is no sufficient ground to acquit the second accused. The counsel for the first accused has argued in the court below and before me that non-examination of the owner of the Kinetic Honda is suspicious. The contraband article was carried by a vehicle belonging to him. The contraband article has been kept in the house of the second accused for one or two days and they have been tied and wrapped in white cloth could be prysumed to be with the knowledge of accused No.2 who made available the cloth is also yet to be known. Simply because the first accused has carried it and the trunk was recovered as pointed out by him cannot be taken as a sole ground for fastening the liability against the first accused. Therefore if on the grounds found by the Court below for acquitting the second accused is equally applicable to the first accused also. Merely because he was carrying the goods and that he has pointed out the trunk alone cannot be taken as an incriminating circumstance to find him guilty. 9. The Court below also did not go deep into the matter. The Court below found no evidence to prove the guilt of the accused No.2. The same circumstance could have applied to the rust accused to acquit him. On applying the reasoning of the Court below, I find no sufficient evidence to establish the guilt of the accused beyond all reasonable doubt. The preponderance of evidence brought in this case is sufficient only to bring out a doubt against the accused. But that is not sufficient to punish an accused. 10. In the result, I give the benefit of doubt in favour of the appellant. The preponderance of evidence brought in this case is sufficient only to bring out a doubt against the accused. But that is not sufficient to punish an accused. 10. In the result, I give the benefit of doubt in favour of the appellant. Hence Appeal allowed and the judgment of the Court below is set aside. The appellant stands acquitted. He is directed to be released immediately unless he is required to be detained for any other cause or case. Appeal allowed.