JUDGMENT : P.K. Patra, J. - The appellants have challenged the judgment dated 19-1-1999 passed by Shri N. N. Praharaj, Additional Sessions Judge-cum-Special Judge, Jajpur in G. R. Case No. 625 of 1998 convicting them u/s 20(b) of the Narcotic Drugs and Psychetropie Substances Act (hereinafter referred to as the 'Aco') and sentencing each of them to undergo rigorous imprisonment for fifteen years and to pay a fine of Rs. 1,00,000.00 (one lakh), in default to undergo rigorous imprisonment for a further period of one year. 2. Prosecution case briefly stated is as follows. The appellants (hereinafter referred to as 'the accused persons') are brothers and residents of village Sapanpur under Barchana Police Station in the district of Jajpur. The first informant (p. w. 8) is a resident of village Nelia under the same police station which is situated near village Sapanpur. It is alleged that in the night of 11-6-1998 (at 12.40 a. m. of 12-6-1998) p. w. 8 accom-panied by his, friends - p ws. 1, 2, 3, 4. and 6 had been to the village tank to sleep on the fridge since fit was a hoe summer night. At that time they found two persons one of them carrying a gunny bag in his hand, proceeding on the ridge towards village Sapanpu:r and since it was dark these two persons were loudly asked to disclose their identity, but they did not respond. Hence p, w, 8 and his friends suspected those two persons and rushed towards them. They detained them and could find both the-accused persons who were brothers being residents of village Sapanpur and were acquainted with p, w. 8. and others. Being questioned, accused Mayadhar disclosed that he was carrying, Ganja in the gunny bag to his house for the purpose of business. P. w. 8 and his friends took the accused persons to the village school with the gunny bag which was opened and found that Ganja had been kept in four polythene bags Both the accused persons were detained there in a room and the Gramarakhi of village (p. w. 7) was asked to guard them during the night. In the morning at 6. 30 a.m. p. w. 8 lodged written report (Ext. In the morning at 6. 30 a.m. p. w. 8 lodged written report (Ext. 1) before the I. I. C. of the Police Station (p. w. 13) who registered the case and directed an S. I, of the said police station (p. w. 12) to take up investigation. P, w. 12 proceeded to village Nelia with his staff and after arrival of the Addl. Tahsildar-cum-Executive Magistrate (p. w. 11), seized the four polythene bags, two bags containing 5 Kgs of Ganja each, the third bag containing 45 Kgs of Ganja and the fourth bag containing 9 Kgs of Ganja, in total 23 Kgs 500 grams of Ganja. The accused persons exercised their option to be searched in presence of the Executive Magistrate, P. w. 12 drew samples of 50 grams from each of the four p'olythehe packets and sealed the four polythene packets as also the four, sample packets by using wax and a brass seal belonging to p. w. 13 who arrived at the spot at 10 a. m.. After the seizure, the brass seal (M. O. I) was kept in the Zima of p. w. 10. Then both the accused persons were taken to the police station with the seized articles. The accused persons were forwarded to com ton 13-6-1998 and the samples were sent for chemical examination on 14-6-1998 as the S. D. J. M. was on leave on 13-6-1998. The chemical examiner's report (Ext. 15) confirmed that the samples were Ganja (cannabis). After completion of investigation p. w. 12 submitted charge-sheet u/s 20(b) of the Act against both tbe accused persons. The trial court framed charge u/s 20(b) of the Act against both the accused persons who stood their trial. The defence plea is one of denial and false implication of the accused persons by the villagers of Nelia due to rivalry. 3. Shri A. K. Acharya, learned counsel for the appellants, and the learned Addl. Standing Counsel were heard at length. Sri Achatya assailed the impugned judgment as legally unsustainable contending that the learned Special Judge has erred both in facts and law, inasmch as he has come to erroneous conclusion that the contraband Ganja was seized from the exclusive and conscious possession of tbe appellants and has passed the sentence of rigorous imprisonment for fifteen years and a fine of Rs. 1,00,000.00 which is contrary to law. Learned Addl. 1,00,000.00 which is contrary to law. Learned Addl. Standing Counsel supported the impugned judgment. 4. In order to bring home the charge, prosecution has examined thirteen witnesses (p. ws.) in all. P. w. 8 is the informant, p. w. 13 is the I. I. C. of the Police Station who registered the case and p. w. 12 is the S. I. of the same police station who investigated into the case on the direction of p. w. 13. P. w. 11 is the Executive Magistrate. P. w. 10 is a resident of village Nelia who was present at the time of seizure and who took Zima of the brass seal (M. O. I). P. ws. 1, 2, 4 and 6 who were allegedly present with p. w. 8 at the time of alleged detection of the accused persons on the ridge have turned hostile and have not supported the prosecution case. P. w. 3 has stated to have slept on the ridge of the tank and to have heard a hulla in the night and to have found the villagers surrounding the accused persons and taking them to the village school. P. w. 7 is the Gramarakhi of the village who guarded the accused persons in the village school. P. w. 5 is a co-villager of p. w 8 who has turned hostile and has not supported the prosecution case. P. w. 9 is a Witness to the seizure. The learned Special Judge placed reliance on the statements of p. ws. 3, 7, 8, 9, 10 and on the statements of the three official witnesses - P. ws. 11, 12 and 13, and came to the conclusion that the accused persons were in exclusive and conscious possession of contraband Ganja and accordingly finding them guilty convicted them. He overruled the contentions of the defence counsel regarding non-compliance of the mandatory provisions of the Act. 5. In the present case, the investigating officer (p. w. 12) submitted charge-sheet u/s 20(b) of the Act against both the accused persons for alleged illegal possession of 23 Kgs 500 grams of Ganja. The learned Special Judge has also framed charge against the accused persons u/s 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. The learned Special Judge has also framed charge against the accused persons u/s 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 thereunder : (a) cultivates any cannabis plant, or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State or uses cannabis shall be punishable- 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 u/s 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 persons in the present case is evidently defective and has occasioned failure of justice. Accordingly the conviction of the accused persons u/s 20(b) of the Act and sentence of rigorous imprisonment for fifteen 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 sustained. Accordingly the conviction of the accused persons u/s 20(b) of the Act and sentence of rigorous imprisonment for fifteen 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 sustained. 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, reported in 1990 3 OCR 405, wherein a Division Bench of this Court referred to an earlier decision of the Calcutta High Court in Madhusingh Kaiharta and Others Vs. Emperor, in which it has been held as follows :-- "It is no doubt true that where an accused has been charged for a grayer 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 therefore 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 therefore 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," 6. However before reversing or setting aside the impugned judgment it is to be considered whether the conviction of the accused persons can be sustained on merits or whether they will be entitled to an acquittal. It is evident from the prosecution evidence that both the accused persons were detained in the school at village Nelia during the night and on the following morning the contraband Ganja was allegedly seized from that room after p. w. 8 lodged the F.I.R. (Ext. 1) at the police station. The seizure-list. (Ext. It is evident from the prosecution evidence that both the accused persons were detained in the school at village Nelia during the night and on the following morning the contraband Ganja was allegedly seized from that room after p. w. 8 lodged the F.I.R. (Ext. 1) at the police station. The seizure-list. (Ext. 6) reveals that four polythene packets containing Ganja kept in a gunny bag which was'in the school room were seized in presence of the Executive Magistrate and there is no mention in it that the same were seized from the possession of the accused persons. Nothing has been seized on personal search of the accused persons. The informant (p. w. 8) has stated in the F.I.R. (Ext. 1) that while both the accused persons were detained in darkness and ware identified, accused Mayadhar copfessed that he was taking Ganja to his house for the purpose of business and four polythene bags containing Ganja were found in that gunny bag and thereafter both the accused persons were taken to the school of the village and were detained there and some villagers of tbe village including p. w. 10 were informed about such detention and the Gramarakhi guarded them. But in his statement in court he has not stated about the extra-judicial confession of accused Mayadhar and about the polythene bags containing Ganja and has stated that the person carrying the gunny bag threw away the same and both the persons tried to escape but were apprehended, and taken to the village school along with the gunny bag. He has not stated in the F.I.R. or in bis statement in court as to which of the two accused persons was carrying the gunny bag. In his statement in cross-examination p. w. 8 has stated that the distance between both the accused persons was about 150 cubits when he saw them and that though the accused persons were brothers, they were not in talking terms with each other. He has denied the defence suggestion that the accused persons had been village Nelia to attend a funeral feast in the night of occurrence and that they were not carrying any gunny bag with them and had been falsely implicated in the case. 7. He has denied the defence suggestion that the accused persons had been village Nelia to attend a funeral feast in the night of occurrence and that they were not carrying any gunny bag with them and had been falsely implicated in the case. 7. P. w. 3 has stated that he had slept on the ridge of the tank as his house bad been destroyed by fire and be heard a hulla and saw that villagers had surrounded the accused persons and that the accused persons who were carrying a gunny bag were taken to the school of the village and were detained there. In the morning at about 8 a. m. police reached the school and later on be heard that bag contained Ganja. In his statement in cross-examination he has stated that about fifty villagers had gathered at tbe spot and he did not mark which of the accused persons was holding the gunny bag. Thus the statement of p. w. 3 is not consistent with the statement of p. w. 8 and from his statement it cannot be believed that the accused persons were detained for illegal possession of Ganja. 8. The Gramarakhi (p. w. 7) has introduced a new story that he took charge of the accused persons and a gunny bag being called by twenty youngmen of the village and that the accused persons and the gunny bag were near a broken temple of the village and that he guarded them the whole night near Mangala Temple. He has not stated about detention of the accused persons inside a room in the school. He has also stated that he informed police and after arrival of police he handed'over charge of the accused persons and the gunny bag to the I. I. C. of the Police Station and later on he heard that the gunny bag contained Ganja. In his statement in cross-examination p. w. 7 has stated that he went to the police station at about 4.30 a. m. to 5 a. m. and informed the I. I. C. of the police station who alone reached the spot without being accompanied by any other police staff and that half an hour after the arrival of the I.I.C. at the spot, the Addl. Tahsildar reached there. This statement of p. w. 7 excludes the presence of p. w. 12 at the spot. 9. Tahsildar reached there. This statement of p. w. 7 excludes the presence of p. w. 12 at the spot. 9. P. w. 9 has stated to have put his signature on a blank paper at the instance of the I. I. C. of the Police Station when the accused persons had been detained inside a room in the school. He did not support the prosecution case and has been declared hostile and has been cross-examined by the prosecution. P. w. 10 has stated that while he was in village Bidyadharpur attending a marriage party, he was called by 7/8 youngmen of his village stating that they had detained the accused persons in the school with a gunny bag containing Ganja and so he came to the village. He has also introduced a new story that the accused persons requested them to let them go, but the villagers did hot agree and at about 3 a. m. p. w. 8 accompanied by p. w. 7 went to the police station to report the matter. In his statement in cross-examination p. w. 10 has stated that by the time he arrived at the school at about 12 midnight, the gunny bag had already been opened. 10. P. w. 11 has stated that being directed by the Sub-Collector, Jajpur he went to village Nelia and reached the school at about, 1030 a. m. and on his arrival he found the I. I. C. of the police Station (p. w. 13), one S. I. of Police of an outpost and some other police officers at the school. But the investigating officer (p. w. 12) has stated that p. w. 11 accompanied by p. w. 13 arrived at the spot at about 10 a. m.. P. w. 13 has stated that at about 7.45 a. m. he and p. w. 11 preceded to the spot. Thus the statements of the three official witnesses on th'is score are discrepant which cannot be said to be minor in nature and cannot be overlooked. 11. Besides the above discrepancies found in the statements of the prosecution witnesses, it is found that though the four Samples, each weighing 50 grams (as per Ext. 2) were sent for chemical examination as per the forwarding Memo. (Ext. 10), the chemical examiner found that one sample packet contained 75 grams and another, contained 65 grams as per the chemical examiner's report (Ext. 2) were sent for chemical examination as per the forwarding Memo. (Ext. 10), the chemical examiner found that one sample packet contained 75 grams and another, contained 65 grams as per the chemical examiner's report (Ext. 15). To patch up this discrepancy in the sample packets, p. ws. 11 and 12 have stated that the samples were drawn by approximation and thereby they excluded tbe weighment of the samples drawn from each of the four packets. If that be so. the weighment of the four polythene bags will raise suspicion. For the aforesaid reasons, it will be quite unsafe to place reliance on the statements of p ws. 3 and 7 to 13 to reach the conclusion that contraband Ganja had been seized from the exclusive and conscious possession of the accused persons for which they cannot be convicted of the charge levelled against them and they will be entitled to acquittal. This view finds support from the decision in the case of Krushna Dora v. State 1994 7 OCR 590, in which it was held that it was obligatory oh 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. 12. In view of the aforesaid finding, it will be merely academical to discuss regarding compliance or non-compliance of the mandatory provisions of the Act by the investigating officer. 13. In the result, the Criminal Appeal is allowed. The impugned judgment dated 19-1-1999 of the learned Special Judge and the sentence passed thereunder are set aside. The appellants are found not guilty and are acquitted of the charge. They be set at liberty forthwith if their detention is not required in connection with any other case. 14. Crl. Appeal allowed. Final Result : Allowed