P. K. PATRA, J. ( 1 ) THE appellant has challenged the judgment dated 11-10-1999 passed by Shri N. N. Praharaj. Special Judge, Jajpur in 2 (a) CC Nos. 83 of 1992 and 39 of 1993 convicting him of the charge under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter referred to as the Act) and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000. 00 (one lekh), in default to undergo rigorous imprisonment for a further period of one year. ( 2 ) PROSECUTION case briefly stated is as follows: On 7-8-1992 at about 3 p. m. while P. W. 3. a Subinspector of Excise. E. 1 and E. B. Unit-I. Cuttack was performing patrol duty in village Ekadalia, received information from P. W. 4. a co-villager of the appellant (hereinafter referred to as the accused), that the accused had concealed Ganja under a bush at the outskirt of the village. So he proceeded to the spot with his staff being led by P. W. 4 and found that the accused was pulling out two gunny bags from under the bush. They surrounded him detained him and recovered the two gunny bags, one containing 19 kgs and the other 200 kgs 500 grams of Ganja. While the seizure was in progress the accused escaped from the spot and attempt to apprehend him failed. On 8-8-1992 P. W. 3 produced the seized gunny bags before the S. D. J. M. Jaipur with a prayer to draw samples of the articles contained therein for sending the same to the State Drug Testing Laboratory at Bhubaneswar. Since 8th and 9th of August. 1992 were holidays, as directed by the S. D. J. M. P. W. 3 again produced the same on 10th August. 1992 and the S. D. J. M. drew samples of 25. grams from each gunny bag and sent the same for chemical examination which confirmed the contents of the gunny bags to be Ganja (cannabis) After completion of the formalities of investigation. P. W. 3 submitted prosecution report against the accused who stood his trial. Since at the time of production of the seized Ganja 2 (a) CC No. 83 of 1992 had been registered and at the time of submission of the prosecution report 2 (a) CC No. 39 of 1993 had been registered. P. W. 3 submitted prosecution report against the accused who stood his trial. Since at the time of production of the seized Ganja 2 (a) CC No. 83 of 1992 had been registered and at the time of submission of the prosecution report 2 (a) CC No. 39 of 1993 had been registered. Both the cases were clubbed up together in trial No. 2 of 1998. The learned Special Judge found the accused guilty and convicted him of the charge under Section 20 (b) of the Act and sentenced him as stated above. The plea of defence was one of denial of recovery of any contraband article from the exclusive and conscious possession of the accused. ( 3 ) HEARD Mr. B. Panda, learned Counsel for the accused, and the learned Addi. Standing Counsel for the State at length. Mr. Panda, contended that the impugned judgment cannot be sustained since the learned Special Judge failed to appreciate the defence stand that the contraband article was not seized from the exclusive and conscious possession of the accused and there was noncompliance of the mandatory provisions of the Act. He also contended that infliction of sentence of rigorous imprisonment for ten years and a Cine of Rs. 1,00,000. 00 (one lakh) is contrary to law. The learned Addi. Standing Counsel supported the impugned judgment. ( 4 ) PROSECUTION has examined five witnesses in all to bring home the charge against the accused. P. W. 3 is the Sub-Inspector of Excise who detected the case. P. W. 2 is another S. 1. of Excise who submitted the prosecution report showing the accused as absconder. P. W. 1 is an Excise Constable who accompanied P. W. 3 on patrol duty, P. W. 4 is a co-villager of the accused who informed P. W. 3 about concealment of Ganja by the accused and P. W. 5 is another co-villager of the accused who was a witness to the seizure. The two independent witnesses, i. e. P. Ws. 4 and 5. turned hostile and did not support the prosecution case. The learned Special Judge placed reliance on the statements of the three official witnesses and convicted the accused. The two independent witnesses, i. e. P. Ws. 4 and 5. turned hostile and did not support the prosecution case. The learned Special Judge placed reliance on the statements of the three official witnesses and convicted the accused. ( 5 ) THOUGH it is alleged by the prosecution that contraband Ganja was seized from the accused, charge has been framed under Section 20 (b) of the Act without specifying whether the offence was under sub-clause (i) or sub-clause (ii) of clause (b) of Section 20. For better appreciation. Section 20 of the Act is quoted below:20 Punishment for contravention in relation to cannabis plant and cannabis -Whoever in contravention of any provision of this Act or any Rule or order made or condition of licence granted there-under: (a) cultivates any cannabis plant, or (b) produces, manufactures, possesses, sells, purchases, transports, imports interstate or uses cannabis shall be punishable (i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees. (ii) where such contravention relates to cannabis other than Ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees: Provided that the Court may for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. It is evident from the aforesaid provision that for illegal possession of Ganja charge should have been framed under Section 20 (b) (i) of the Act which is punishable with rigorous imprisonment for a term which may extend to five years as also fine which may extend to fifty thousand rupees. Section 20 (b) (ii) provides for contravention relating to cannabis other than Ganja which is punishable with rigorous imprisonment for a term which shall not be less than ten years, but may extend to twenty years with fine which shall not be less than one lakh rupees and may extend to two lakh rupees. So the charge framed against the accused in the present case is evidently defective and has occasioned failure of justice. So the charge framed against the accused in the present case is evidently defective and has occasioned failure of justice. Accordingly the conviction of the accused under Section 20 (b) of the Act and sentence of rigorous imprisonment for ten years with fine of one lakh rupees in default to undergo rigorous imprisonment for a further period of one year are contrary to law and cannot be straitened. Therefore the impugned judgment can be reversed or set-aside keeping in view the provisions of Section 165 of the Code of Criminal Procedure. The above view finds support from the decision in Susil Lugun v. State of Orissa, wherein a Division Bench of this Court referred to an earlier decision of the Calcutta High Court in Madhusingh v. Emperor in which it has been held as follows: It is no doubt true that where an accused has been charged for a graver offence but on evidence the offence is not made out and a lesser offence is found to have been established the Court would be within its jurisdiction to convict the accused for such lesser offence the principle being that no prejudice is caused thereby to the accused. But where the evidence disclosed some other unconnected offence than for what the accused has been charged to have been committed, he cannot be convicted therefor without there being a specific charge for the same. Also if an offence graver than the one charged appears to have been committed, a conviction therefor cannot ensue, he having not been charged therefor. Such view is based upon the principle that accused having not been called upon to answer charge the prejudice to him would be presumed. T ( 6 ) HOWEVER before reversing Dr setting aside the impugned judgment, it is to be considered whether the conviction of the accused can be sustained on merits, or he will be entitled to acquittal. As stated earlier, the learned Special judge has based the conviction of the accused relying on the statements of the three official witnesses (P. Ws, 1,. 2 and 3) since the two independent witnesses did not support the prosecution case. It is well settled in law that a conviction can be based on the statements of official witnesses, provided their statements are found to be true, reliable and unimpeachable. In the present case, the statements of P. Ws. 2 and 3) since the two independent witnesses did not support the prosecution case. It is well settled in law that a conviction can be based on the statements of official witnesses, provided their statements are found to be true, reliable and unimpeachable. In the present case, the statements of P. Ws. 1 and 3 require close scrutiny before placing reliance on them since P. W. 2 took over charge from P. W. 3 and submitted the prosecution report after completion of the formalities of investigation and did not participate in the investigation except making a futile attempt to apprehend the accused. P. W. 3 has stated that he and his staff after getting information from P. W. 4 went to the outskirt of the village and from a distance of 40 to 50 feet found the accused pulling out two gunny bags from under a bush. They surrounded him and since the gunny bags contained Ganja, he seized the same under seizure-list Ext.- 1. While he was reading over and explaining the contents of the seizure-list to the witnesses present, the accused suddenly pushed the Excise staff and ran away. He was chased, but in vain. But P. W. 1 has stated that the accused gave a push to one of the Excise staff who was guarding him when the seizure was being effected and fled away. The Excise staff who was guarding the accused and was given the push has not been examined by prosecution in support of its case. It is strange that the accused could escape from the place of seizure when he had been surrounded by the Excise staff consisting of one S. I. one A. S. I. and five constables having a jeep with them. P. W. 1 has further stated that the house of the accused was also searched but in vain, although P. W. 3 is silent regarding the same. Had it been so, P. W. 3 ought to have reported the matter to the police for apprehension of the accused, but he has not done so which raises grave doubt regarding the prosecution case on this score. Had it been so, P. W. 3 ought to have reported the matter to the police for apprehension of the accused, but he has not done so which raises grave doubt regarding the prosecution case on this score. That apart, while P. W. 3 has stated that the S. D. J. M. drew two samples from the two gunny bags on the date of production on 10-8-1992 P. W. 1 has stated that P. W. 3 drew samples from each bag on the spot. In his statement in cross-examination P. W. 1 stated that besides P. W. 3, one A. S. I. and five Constables formed the squad while proceeding on patrol duty. While P. W. 3 stated that the accused was seen from a distance of 40 to 45 feet pulling out gunny bags from under a bush and he was surrounded by the Excise staff, P. W. 1 has stated that the accused was seen from a distance of about 200 metres and he was dragging the gunny bags to a distance of 40 feet when he was apprehended after being chased. The A. S. I. of Excise and the four Excise Constables who were with P. Ws. 1 and 3 have not been examined in support of the prosecution case. The contradictions found in the statements of P. Ws. 1 and 3 cannot be said to be minor in nature and cannot be overlooked. In the above circumstances, it will be quite unsafe to place reliance on the statements of P. Ws. 1 and 3 to come to a conclusion that the contraband Ganja was seized from the exclusive and conscious possession of the accused. ( 7 ) IN the case of Krushna Dora v. State, it was held that it was obligatory on the part of the prosecution to establish by cogent and reliable evidence that the accused was in exclusive and conscious possession of contraband article and the prosecution evidence in that case having been found to be miserably lacking in that respect, the accused was entitled to acquittal. In view of the decision referred to above, the accused in the present case will, be entitled to acquittal since the prosecution has failed to establish beyond all reasonable doubts by cogent, convincing and reliable evidence that the contraband article (Garya) was seized from the exclusive and conscious possession of the accused. In view of the decision referred to above, the accused in the present case will, be entitled to acquittal since the prosecution has failed to establish beyond all reasonable doubts by cogent, convincing and reliable evidence that the contraband article (Garya) was seized from the exclusive and conscious possession of the accused. ( 8 ) PLACING reliance on the decision of the Apex Court in the case of State of Punjab v. Baldev Singh, the learned Special Judge has come to the right conclusion that compliance of the provisions of Section 42 of the Act will not adversely affect the prosecution case and that it was not necessary to give in writing option to the accused about his right to be searched by a Gazetted Officer or a Magistrate, as required under Section 50 of the Act. The learned Special Judge has overruled the other contentions of defence regarding non-compliance of other provisions of Act as well as manipulation in the samples and custody of the seized contraband article. A discussion regarding correctness or otherwise of the findings of the learned Special Judge on the above score will be merely academicals. In view of the discussions made above, the prosecution having failed to prove the exclusive and conscious possession of contraband article by the accused by cogent, convincing and the reliable evidence the accused cannot be held guilty of the charge and will be entitled to acquittal. His conviction cannot be sustained and the impugned judgment is liable to be set aside. It would not be necessary to remit back the matter to the trial Court after reversing or setting aside the impugned judgment. ( 9 ) IN the result, the Criminal Appeal is allowed. The impugned judgment dated 11-10-1999 of the learned Special Judge convicting the appellant under Section 20 (b) of the Act and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000. 00 (one lakh) is set aside. The appellant is found not guilty and is acquitted of the charge. He be set at liberty forthwith if his detention is not required in connection with any other case. Appeal allowed.