Judgment V. K. TAHILRAMANI, J. ( 1 ) THROUGH this appeal the appellant i. e. original accused challenges the judgment and order dated 10-10-2003 passed by the Special Court designated under Narcotic Drugs and Psychotropic Substances Act at nagpur in Special Criminal Case No. 22/2002. By the said judgment and order the learned Sessions Judge convicted the appellant under section 20 (b) (ii) (C) of narcotic Drugs and Psychotropic Substances Act and sentenced him to R. I. for 10 years and to pay a fine of Rs. 1,00,000/- (one lac) in default R. I. for one year. ( 2 ) THE prosecution case briefly stated is as under : that P. W. 7 A. P. 1. Abdul Sattar was attached to Crime Branch Nagpur. On 10-4-02 at about 5. 30 hours A. P. I. Abdul Sattar along with other staff was on patrolling duty. When he and police staff reached near Rani Durgawati police Chowki A. P. I. Abdul Sattar received secret information that a person by name Mohammad Sheikh aged about 40 to 42 years having black complexion and short stature residing at Indiramata Nagar is selling ganja by standing in front of his house to his specified customers. It was also communicated that the said person was having stock of ganja in his house. P. W. 7 Abdul sattar reduced the said information into writing (Ex. 36) at 6 hours. He then prepared a report under section 42 (1) and (2) of the N. D. P. S. Act as per Ex. 37. This was sent to Senior Police Officer i. e. P. W. 8 ACP Madhukar Jadhav. API Abdul Sattar then called two Panchas i. e. P. W. 5 Anil Shukla and P. W. 6 munna Sonuji Wankhede. Thereafter Raiding Party including the Panchas proceeded to Indiramata Nagar. The house of the appellant Mohammad Sheriff sheikh was traced. It came to be traced at about 7 a. m. The house was found to be a pucca house having roof of cement sheets. After reaching the house the accused was called out by his name. There upon a person with the description received in the information came out. The said person was the appellant. API Abdul Sattar introduced himself to the appellant. The appellant gave his name as Mohammad Sheriff Sheikh s/o Mohammad Isak Sheikh aged about 40 yrs. resident of his own house Indiramata Nagar, Nagpur. There upon a person with the description received in the information came out. The said person was the appellant. API Abdul Sattar introduced himself to the appellant. The appellant gave his name as Mohammad Sheriff Sheikh s/o Mohammad Isak Sheikh aged about 40 yrs. resident of his own house Indiramata Nagar, Nagpur. He was apprised about the information received and that his personal search and that of his house is to be taken. Thereafter the appellant was informed that he has a right to be searched in the presence of a Gazetted Officer or a magistrate. On the personal search of the accused nothing came to be found. Thereafter the house was searched. In the kitchen two gunny bags were found which were concealed under bedsheet. The accused disclosed that the gunny bags were containing ganja. The ganja in both the gunny bags was taken out and weighed and the total ganja was found to be 20 kgs. Two samples of 24 gms each were separated by means of small balance and they were packed and sealed. Remaining ganja was put back in the two gunny bags which also came to be packed and sealed. The two samples were marked as S-1 and S-2 and gunny bags marked as P-1 and P-2. The accused was informed that he had committed the offence in relation to possession of ganja and he came to be arrested. Panchanama (Ex. 26) relating to the search and seizure was prepared. The accused along with seized articles was then taken to Pachpaoli Police Station. Complaint (Ex. 28) by API Abdul Sattar came to be recorded. The said case was registered as crime No. 6078/02. The seized muddemal was handed over to PSI Mohod (P. W. 4) who was the Station House Officer at the relevant time. PSI Mohod resealed the two samples i. e. S-1 and S-2 as well as gunny bags P-1 and P-2. He put his signature on the said samples and gunny bags. The accused came to be put under arrest. Sample S-1 came to be sent to the Chemical Analyser. The sample was analysed by P. W. 1 Assistant Chemical Analyser Venkatesh gajbhiye and it was found that the sample tested positive for ganja. Accordingly, c. A. Report (Ex. 20) came to be issued. After completion of investigation the charge-sheet came to filed. ( 3 ) THE charge (Ex. Sample S-1 came to be sent to the Chemical Analyser. The sample was analysed by P. W. 1 Assistant Chemical Analyser Venkatesh gajbhiye and it was found that the sample tested positive for ganja. Accordingly, c. A. Report (Ex. 20) came to be issued. After completion of investigation the charge-sheet came to filed. ( 3 ) THE charge (Ex. 12) came to be framed against the accused for the offence punishable under section 20 (b) (ii) (C) of the Narcotic Drugs and Psy- chotropic Substances Act. Accused pleaded not guilty to the said charge and claimed to be tried. The defence of the accused is that of total denial and false implication. During the course of trial the prosecution examined 8 witnesses. After going through the evidence adduced by the prosecution the learned special Judge convicted and sentenced the appellant as stated in para 1 above. Hence this appeal. ( 4 ) I heard Mr. Sahil Bhangade along with Mr. Ashok Bhangade the learned advocates for the appellant and Mr. Y. B. Mandpe the learned APP for the State. I have perused the judgment and order passed by the learned Special Judge as well as the record pertaining to the present case. After carefully considering the matter. I am of the opinion that this appeal deserves to be dismissed. ( 5 ) THE conviction of the appellant is mainly based on the evidence of P. W. 7 API Sattar Sheikh. As the prosecution story in para two above was taken from the examination-in-chief of raiding officer P. W. 7 Abdul Sattar Sheikh I do not feel it necessary to repeat the same here in detail as it would only over burden this judgment. Briefly stated, API Abdul Sattar Sheikh has stated about the receiving of the information compliance with section 42 (1) and 42 (2) and section 50 of the N. D. P. S. Act. On reaching the house of the appellant he called out to him by name. The appellant came out of the house. Thereafter the house came to be searched and two bags containing ganja weighing 20 kgs. came to be seized. This witness has specifically stated that two samples s-1 and S-2 each weighing 24 gms. came to be seized. On reaching the house of the appellant he called out to him by name. The appellant came out of the house. Thereafter the house came to be searched and two bags containing ganja weighing 20 kgs. came to be seized. This witness has specifically stated that two samples s-1 and S-2 each weighing 24 gms. came to be seized. The said sample were sealed by the officer on the spot, he put his signatures so also the signatures of the appellant were taken on the said articles. Thereafter the accused and the seized articles were brought of the P. S. and handed over to P. W. 4 P. S. I. Ashok Mohod. ( 6 ) P. W. 4 P. S. I. Ashok Mohod has stated that at the relevant time he was the Station House Officer. On 10-4-02 A. P. I. Sheikh Crime Branch Nagpur (P. W. 7) came to the Police Station a/w the accused. At 10. 55 hrs. P. W. 7 abdul Sheikh gave a complaint in writing (Ex. 28 ). P. S. I. Mohod registered the complaint. He has stated that accused before the Court is the very same accused. The articles seized in the said case were handed over to him. P. S. I. Mohod also put his seals on the said samples and articles which came to be seized. He affixed his signature on the said samples as well as two gunny bags. So also A. P. I. Abdul Sattar also affixed his signature on the TWO samples and the two gunny bags. P. S. I. Mohod (P. W. 4) deposited the sealed samples and two sealed gunny bags along with two copies of the C. A. Form and the seizure Panchanama with the Malkhana in charge i. e. P. W. 3 Police Constable sudhir Chorpagar. ( 7 ) P. W. 3 P. C. Sudhir Chorpagar was the in-charge of Malkhana on that day, P. W. 3 P. C. Sudhir Chorpagar has stated that he took entry in the malkhana Register. On the very same day P. S. I. Mohod deputed P. W. 2 Abdul vakil Sheikh to carry the C. A. Sample to the Chemical Analysers Office and accordingly P. W. 2 P. C. Abdul Vakil Sheikh carried the said sample to the C. A. P. W. 2 Abdul Vakil Sheikh has also deposed about this aspect in his evidence. On the very same day P. S. I. Mohod deputed P. W. 2 Abdul vakil Sheikh to carry the C. A. Sample to the Chemical Analysers Office and accordingly P. W. 2 P. C. Abdul Vakil Sheikh carried the said sample to the C. A. P. W. 2 Abdul Vakil Sheikh has also deposed about this aspect in his evidence. ( 8 ) I have carefully perused the evidence of all these witnesses i. e. P. W. 7 a. P. I. Sattar Sheikh, P. W. 4 P. S. I. Mohod, P. W. 3 P. C. Sudhir Chorpagar and p. W. 2 P. C. Abdul Vakil Sheikh and I found that nothing has been illicited in the cross-examination of any of these witnesses so as to disbelieve their testimony. ( 9 ) THE learned Advocate for the appellant has submitted that in the present case sample of 24 gms was taken and the sample that was received by C. A. was 29 grams hence he has submitted that it cannot be said that the sample which was taken in the present case was the very same sample which was sent to the C. A. Thus he has argued that the sample which was analysed by the C. A. was not the sample taken in the present case and hence no reliance can be placed on the report of the C. A. which shows that the sample was ganja. In support of this submission he has brought to my notice the evidence of P. W. 7 Abdul Sattar who has stated that two samples of 24 gms. each were taken and out of these two samples one sample was sent to C. A. He has pointed out the report of the C. A. (Ex. 20) which shows that the quantity of the sample was 29 gms. He has further brought to my notice that P. W. 7 abdul Sattar has stated that the ganja seized in the case was wettish ganja. He has submitted that this wettish ganja by the time it was sent to C. A. would have dried and in such case the sample received by the C. A. would be lesser in weight than the sample taken by the Seizing Officer and under no circumstance the sample can be more in weight. He has submitted that this wettish ganja by the time it was sent to C. A. would have dried and in such case the sample received by the C. A. would be lesser in weight than the sample taken by the Seizing Officer and under no circumstance the sample can be more in weight. ( 10 ) THE learned Advocate for the appellant has placed reliance on the decision in the case of (Abdul Rashidv. State of Maharashtra), reported in 1998 bom. C. R. (Cri) 289 : 2000 (1) E. F. R. 41, wherein it is observed that if there is discrepancy in weight as regards the sample seized and the one sent to the c. A. it would be a serious infirmity and hence benefit of doubt was given to the accused. On careful perusal of the said decision it is noticed that no explanation was put forth by the prosecution regarding discrepancy in the weight of the sample sent to C. A. and the one received by the C. A. This has been specifically so observed in para 5 of the judgment. However, in the present case the learned APP has submitted that there is minor discrepancy in weight of a few gms as the police had weighed the sample using a simple balance. He has pointed out that P. W. 7 Abdul Sattar has stated that the two samples were weighed by a simple balance and they were packed separately. Mr. Mandpe submitted that the said balance obviously could not have been a sophisticated and accurate balance such as the one used in the Forensic Science Laboratory hence there is bound to be some discrepancy in the weight of the sample. ( 11 ) MR. Mandpe has placed reliance on the decision of this Court in the case of (Austin Gladivin Roy v. State of Goa), 1998 (5) Bom. C. R. (P. B.)542 : 1998 Cri. L. J. 4776, in the said case also there was discrepancy in the weight of the sample taken by the Raiding Party and the one which was received by the C. A. It is observed therein that there is minor difference in the weight which has been explained on account of use of the scientific balance used in the laboratory in relation to the one used by the police. In the said decision it is further observed that the sample was received by the C. A. with all scale intact, which is also the case in the present case. The report of the C. A. clearly shows that all the seals were intact. The learned APP has pointed out that the link evidence which has been adduced by the prosecution in the present case clearly rules out tampering of the sample which was sent to the C. A. The learned APP has further submitted that in the case of Abdul Rasid (supra) no link evidence has been led and there was no material on record to show that the sample could have been tampered with. ( 12 ) IN the present case it is seen that P. W. 7 Abdul Sattar sealed the two samples on the spot, his signature was affixed on the spot as well as the signature of the accused was taken on the samples. There after he has deposited the samples with P. W. 4 P. S. I. Mohod, P. S. I. Mohod in turn affixed another seal to the said samples and there after those samples were handed over to P. W. 3 Chorpagar who was the Malkhana in-charge at the relevant time. P. C. Chorpagar has stated that P. S. I. Mohod (P. W. 4) deposited two samples which were in sealed condition. P. W. 3 Chorpagar has taken the entry in the Malkhana register and thereafter he has despatched it to the chemical Analyser. P. W. 2 Abdul Vakil Sheikh carried the said samples to c. A. He has deposed about this aspect. He has stated that the said sample was sealed and he deposited the said sample in the office of the C. A. The link evidence adduced in the present case clearly rules out any tampering with the said sample. Thus in the present case it can reliably be said that the sample which was seized was the very sample which was sent to the C. A. In such case in the facts of the present case no importance can be given to the fact that the weight of the sample was different. So also even if the ganja was wettish ganja owing to the above facts the difference in weight would not be fatal to be prosecution case. So also even if the ganja was wettish ganja owing to the above facts the difference in weight would not be fatal to be prosecution case. ( 13 ) THE learned Advocate for the appellant has placed reliance on (Ex. 25) which is extract of the entries in the Malkhana register. He has submitted that at one place the sample S-1 is mentioned as property bearing No. 69/02 and in the later part of the extract it is mentioned as property bearing No. 67/02. This shows that there is some discrepancy in the sample which was sent to the C. A. , and hence it cannot be said that the same sample was sent to the c. A. However, it is seen that in the said Malkhana Entry the crime number is clearly mentioned in the earlier part of the entry as well as the later part of the entry. Both the earlier entry as well as the later entry gives other details also of the case from which it can be seen that the sample is the very same sample. Apparently in writing the property number in the later part some error has crept in. However the error is not such as to create any doubt in relation to the sample, specially looking to all the other particulars which have been stated in the entry. ( 14 ) MOREOVER, the learned APP has placed reliance on the decision of our high Court in the case of (Ketil Mardal v. State of Goa), reported in 1997 criminal Law Journal 3581. He has placed reliance on the observations in the said case that when there is no evidence showing possibility of sample being tampered in process of sending it to Public Analyst, mere discrepancies in the evidence of prosecution witness and in C-Form would not result in the case being thrown overboard on account of the same. The learned APP has further submitted that the evidence in the present case clearly shows that there was no tampering with the sample which was received by the Chemical analyser and thus because there is some discrepancy in the weight of the sample it cannot be said that another sample was sent to the Chemical Analyser. The learned APP has further submitted that the evidence in the present case clearly shows that there was no tampering with the sample which was received by the Chemical analyser and thus because there is some discrepancy in the weight of the sample it cannot be said that another sample was sent to the Chemical Analyser. ( 15 ) THEREAFTER the learned Advocate for the appellant has argued that in the present case the Muddemal has not been produced before the Court and in such case it cannot be said that the identity of the articles seized has been proved by the prosecution. He has placed reliance on the decision of the single Judge of Rajasthan High Court in (Hari Ram v. Central Narcotics Bureau), 2001 Criminal Law Journal 4867. In the said case it has been observed that in order to establish a clear cut link between the seized articles and the report of the Chemical Analyser it is absolutely necessary to have identified the articles before the Court as a substantive piece of evidence. In the case of Hari Ram it is also observed that there were material contradictions on point under whom samples and seized articles remained in custody. In the present case there is material to show in whose custody the samples and seized articles were from time to time. The said evidence excludes the possibility of tampering. In the present case this is also sufficient evidence to show that the sample which was seized in the present case was the very sample sent to the C. A. The remaining part of the sample which was analysed by the C. A. was produced in the Court which is at (Ex. 16 ). The said sample has been identified by the witnesses before the Court. Looking to the link evidence which has been brought on record in the present case, it is clear that sample which was seized was the very sample which was sent to C. A. , analysed by the C. A. and the remaining part of that sample was produced before the Court. Looking to the link evidence which has been brought on record in the present case, it is clear that sample which was seized was the very sample which was sent to C. A. , analysed by the C. A. and the remaining part of that sample was produced before the Court. ( 16 ) ON perusal of the decision in the case of Hari Ram (supra) it is seen that the link evidence had not been satisfactorily led and hence it could not be safely said that the sample seized was the very sample which was sent to the c. A. In para 27 it is stated that there is material contradiction on the point whether sample was given to P. W. 7 Mohanchand by Dharamveer Katpalia or by P. W. 4 Ravindra Nath. The entry in the Malkhana Register was also not proved by the prosecution in the said case. It was in view of this evidence that the Court observed in para 28 that looking to the evidence on record it cannot be said that seized articles remained in proper custody and proper forum. On perusal of the concluding paras in the said judgment it is seen that the accused did not come to be acquitted solely on the ground of non production of articles in the Court but also on the ground that there was infirmity in the prosecution case as to the point from whom P. W. 7 Mohanchand took sample and also on the point that entries in the Malkhana register has also not bee proved by the prosecution. It is for all these three reasons that it was held that the prosecution has not been able to prove its case beyond all reasonable doubt against the accused. In the present case the evidence has been led in relation to Malkhana register, so also evidence has been led to show in whose custody the samples and articles seized were from time to time. There is no discrepancy in the present case which raises any doubt as to in whose custody the articles were handed over from time to time. P. W. 3 Chorpagar has also deposed about the Malkhana entries. Thus it is seen that the facts pertaining to the case of Hari Ram being entirely different from the present case the said decision would not be applicable to the facts of the present case. P. W. 3 Chorpagar has also deposed about the Malkhana entries. Thus it is seen that the facts pertaining to the case of Hari Ram being entirely different from the present case the said decision would not be applicable to the facts of the present case. ( 17 ) THE learned APP in addition has also placed reliance on the decision in the case of (Rewant Ram v. State of Rajasthan), 1995 Criminal Law Journal 772, in the said case it has been observed that when the link evidence regarding seals and samples is complete the trial is not vitiated for non production of sample and seized opium in the Court. In the present case no fault can be found with the link evidence in such case the conviction cannot be vitiated only on account of non production of seized ganja before the Court. ( 18 ) THE learned Advocate for the appellant has also placed reliance on the decision in the case of (Jitendra and another v. State of MP.), 2004 Supreme court Cases (Cri.) 2028. He has placed reliance on the observations in the said judgment that non production of seized drugs before the trial Court is fatal to the prosecution case. On perusal of the said decision it is seen that in the said case neither the seized drugs nor the samples sent to the Forensic science Laboratory were produced before the Court, so also the Investigating officer was not examined in the said case. In the said case the fact that the samples and seized drugs were not produced as well as the non examination of the Investigating Officer was considered together by the Supreme Court. There after some other aspect were also taken into consideration, i. e. the copy of the letter sent to the C. A. was not produced during the trial and one other aspect was also taken into consideration. Thereafter in para 9 it has been observed by the Supreme Court that "taking the cumulative effect of all the circumstances, it appears to us that the material placed on record by the prosecution does not bring home the charge beyond reasonable doubt. " It is further observed that "we are of the view that upon the material placed on record it would be unsafe to convict the appellants. They are certainly entitled to the benefit of doubt. " It is further observed that "we are of the view that upon the material placed on record it would be unsafe to convict the appellants. They are certainly entitled to the benefit of doubt. " Thus it is clearly seen that in the said case the accused was not acquitted only on the ground of no production of the articles seized before the Court but on various other grounds also. Thus this decision would be of no help to the appellant. ( 19 ) THE next submission made by the learned Advocate for the appellant is that correct and proper procedure for taking the samples was not followed by the raiding party. He has submitted that in the present case two gunny bags of ganja were found and P. W. 7 Abdul Sattar has stated that the contents of the two gunny bags were kept on the floor, they were mixed and then samples were taken. He has submitted that looking to the fact that there were two gunny bags, separate samples ought to have been taken from each gunny bag. He has placed reliance on the decision in the case of (Joseph alias pappachan v. State of Kerala), 2002 Criminal Law Journal 3203. In the said case two packets came to be seized from the accused. However, the A. S. I. mixed up the contents of these two packets and then sample was taken which was found to be ganja. In the said case the contents of each packet were not weighed separately but the contents of both the packets were weighed together. It was observed that the contents of each packet ought to have been weighed separately. In the said case it was observed that the sample was taken in an improper manner hence the proceedings were vitiated. ( 20 ) I have carefully perused the said decision and it is noticed that there were two accused in the said case. One packet came to be seized from each of the accused persons separately. Thereafter the contents of these packets were mixed by the A. S. I. and then sample was taken. In the said case the packets seized from each accused were not weighed separately but the contents were all mixed together and then the contents were weighed. One packet came to be seized from each of the accused persons separately. Thereafter the contents of these packets were mixed by the A. S. I. and then sample was taken. In the said case the packets seized from each accused were not weighed separately but the contents were all mixed together and then the contents were weighed. In such case obviously it would not be possible to say as to what was the quantity of ganja which was found with each of the accused. Looking to the fact that there were two accused, it was observed that the sampled ought to have been taken separately otherwise each of the accused would contend that the packet seized from him did not contain ganja and that the ganja was in the packet held by the other accused. Thus the Supreme Court has observed that in the nature of the case it was incumbent upon the Officer to weigh the contents of the packet held by each accused separately and to prepare samples from each set. Obviously when there are two accused and when the material seized from each of the accused is mixed with that of the other accused and then its total weight is taken and thereafter the sample is drawn, it can leave room for doubt. In the present case it is seen that there is only one accused i. e. the appellant. Therefore, in such case it would not be necessary to weigh the contents of each of the gunny bags separately or to take the sample separately from each bag. In the present case as there is only one accused there can be no room for any doubt or any ambiguity. ( 21 ) IN support of his contention that samples ought to have been taken from each gunny bag separately and not doing so by the prosecution would be a serious infirmity so as to result in acquittal the learned Advocate for the appellant has placed reliance on one more decision. The said decision is in the case of (Gaunter Edwin Kircher v. State of Goa, Secretarial Panji, Goa), reported in A. I. R. 1993 Supreme Court 1456. In the said case it is found that two pieces of charas were seized from the accused. One piece was weighing 7 gms and the other one was weighing 5 gms. The said decision is in the case of (Gaunter Edwin Kircher v. State of Goa, Secretarial Panji, Goa), reported in A. I. R. 1993 Supreme Court 1456. In the said case it is found that two pieces of charas were seized from the accused. One piece was weighing 7 gms and the other one was weighing 5 gms. Thus the prosecution alleged recovery of 12 gms of charas. However, only one of the pieces i. e. one weighing 5 gms. was sent to the Chemical Analyser. The said sample was found to be charas. As it weighed 4. 570 gms. It fell within the category of small quantity. The Supreme Court observed that from the report of the Chemical Analyser it cannot be presumed that the other piece weighing 7 gms. also contains charas and it was in this context that the Supreme Court has observed that separate samples ought to have been taken i. e. one from the piece weighing 5 gms and the other from the piece weighing 7 gms. In the present case it is seen that the contents of both the gunny bags were mixed together and thereafter the samples were drawn. In such case it can be said that the samples taken were representative samples of the contents of the both the bags. In the facts of the present case, it would not be necessary to take separate samples from each of the gunny bags. The facts pertaining to the case of Gaunter Edwin Kircher, and the facts of the present case being entirely different, the said decision would not be applicable to the facts of the present case. ( 22 ) THEREAFTER the learned Advocate for the appellant has submitted that liability in respect of the contraband that was seized cannot be fastened on the accused because there is no evidence to establish any nexus of the accused with the premises in question. There is nothing to show that the appellant was in conscious possession of the premises in which the ganja was found. He has submitted that the prosecution has not brought any evidence on record to establish the ownership of the premises in question i. e. to show that the premises belonged to the appellant and no independent evidence has been adduced to show that the appellant was in possession of the said premises. He has submitted that the prosecution has not brought any evidence on record to establish the ownership of the premises in question i. e. to show that the premises belonged to the appellant and no independent evidence has been adduced to show that the appellant was in possession of the said premises. In support of this contention he has placed reliance on the decision in the case of (Antony Souri Pilley v. State of Maharashtra), reported in 1993 criminal Law Journal 1502. In the said case it was observed that there was no material to indicate that the premises from where the gunny bags were allegedly recovered belonged to the accused, that he was in possession of those premises, that the contraband had been brought there, that he was dealing in it, that he had handled it or that he was in any manner concerned with it and hence the Court held that there was no evidence to establish any nexus of the accused with the contraband. ( 23 ) IN support of the above contention the learned Advocate for the appellant has also placed reliance on the decision in the case of (Mohd. Aslam Khan v. Narcotics Control Bureau and another), 1996 Supreme Court Cases (Cri.) 1062. In the said case it has been observed that the prosecution has not produced any independent evidence to establish the ownership of the flat either by producing documents from the Registrars Office of by examining any neighbour. In the case of Mohd. Aslam, it is seen that the search was conducted in the absence of the accused by breaking open the lock. The accused was not present when the premises were entered and the contraband came to be seized. In such circumstances these observations were made. Whereas in the present case on receiving information when the raiding party went to the house of the accused, they stood outside and called out to the accused by his name. The raiding party had been given the physical description of the appellant. On the raiding party calling out the accused by name he came out side the premises. His description tallied with that given by the informant. Thereafter the premises were entered into and in the search of the kitchen two gunny bags were found concealed under the bed-sheet. Accused himself disclosed that the gunny bags were containing ganja. On the raiding party calling out the accused by name he came out side the premises. His description tallied with that given by the informant. Thereafter the premises were entered into and in the search of the kitchen two gunny bags were found concealed under the bed-sheet. Accused himself disclosed that the gunny bags were containing ganja. The facts in the case relied upon being quite different, it cannot be said to be applicable to the present case. ( 24 ) THE learned Advocate for the appellant has also placed reliance on the decision in the case (Ismail khan Aiyub khan Pathan v. State of Gujarat), 2000 supreme Court Cases (Cri.) 1241, wherein it is observed that conviction cannot be sustained only on the basis of the presence of the accused in the room. The facts therein are totally different from the facts in the present case. In the case of Ismailkhan, it is found that the room was in possession of another person who was not an accused in the case, however, the accused was found present in the said room. In such case the Supreme Court observed that it cannot be said that the accused was in possession of the said room. ( 25 ) IT is important to note that all the three above decisions in the case of anthony Pilley, Mohmad Aslam khan and Ismail khan Pathan, on which reliance has been placed by Mr. Bhangade are prior to 2-10-01. Section 54 of the narcotics Drugs and Psychotropic Substances Act has been substituted with effect from 2-10-01 and in the said section a presumption is raised against the accused regarding possession of illicit articles. The Supreme Court has observed in the case of (Union of India v. Munna and another), reported in J. T. 2004 (7) Supreme Court 512, that the effect of section 54 is that it raises presumption in relation to the possession and the burden has to be discharged by the accused in relation to the said presumption relating to possession. In the said case the High Court had observed that the prosecution has failed to prove conscious possession. The Supreme Court has criticised this approach taken by the High Court and has observed that the burden has been wrongly placed on the prosecution and the High Court has wrongly held that he prosecution had to establish that the possession was conscious. The Supreme Court has criticised this approach taken by the High Court and has observed that the burden has been wrongly placed on the prosecution and the High Court has wrongly held that he prosecution had to establish that the possession was conscious. The supreme Court has further observed that in view of section 54 the burden lies on the accused to prove that he was not in conscious possession of the contraband. All these authorities on which reliance has been placed have not considered the present position under section 54 as this section was substituted only on 2-10-01. In the present case it is seen that the burden has not been discharged by the accused. On the other hand the evidence of P. W. 7 abdul Sattar, shows that the premises where contraband was found was an unauthorised construction of NIT land. This evidence of P. W. 7 Abdul Sattar has not been shaken in the cross-examination. Looking to the fact that there was unauthorised construction, there would be no document to show the ownership of the premises in question. Moreover, the evidence of P. W. 7 Abdul sattar that during his investigation it transpired that the house was standing in the name of the wife of the accused has also not been shaken in the cross- examination. The accused has not brought any material on record to show that the premises stood in the name of some other person or that some other person at the relevant time was in possession of the said premises. Looking to the evidence on record it can be reliably said that the appellant was in conscious possession of the contraband in question. ( 26 ) LASTLY, it was submitted by the learned Advocate for the appellant that in the present case both the Panchas P. W. 5 Anil Ramsahay and P. W. 6 Munna sonuji Wankhede have turned hostile and in such case it would be unsafe to rely on the testimony of P. W. 7 Abdul Sattar who is an interested witness. It is common knowledge that in cases specially of this nature the Panchas do not support the prosecution for various reasons. It is common knowledge that in cases specially of this nature the Panchas do not support the prosecution for various reasons. The Supreme Court has observed in the case of (Fatima v. State of Kerala), 2004 Supreme Court cases (Cri.) 1, that if the Panchas turn hostile or they are not examined, the evidence of the Investigating Officer can be relied upon. The said case is also under the N. D. P. S. Act. As observed earlier by me I find the evidence of P. W. 7 Abdul Sattar to be worthy of reliance and hence I have no hesitation in relying on the same. The evidence of P. W. 7 Abdul Sattar clearly brings out the complicity of the appellant in the present crime. Thus in the present case I find that he prosecution has proved that the accused was in possession of 20 kgs. of ganja. The said quantity is a commercial quantity and as such the offence squarely falls under section 20 (b) (ii) (C) of the Narcotics Drugs and Psychotropic Substances Act. Thus the learned sessions Judge has rightly convicted and sentenced the appellant under section 20 (b) (ii) (C) of the Narcotics Drugs and Psychotropic Substances Act. In the result the appeal is dismissed. The appellant is in jail. He shall serve out his sentence. Appeal dismissed.