JUDGMENT : B.K. Misra, J. - The four appellants in this appeal have challenged the order of conviction and sentences passed against each of them in Special Case No. 1 of 2007. The appellants, namely, Sarat Pradhan, Sanjay Pradhan and Sanjib Pradhan were convicted for the offence u/s 20(b) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'N.D.P.S. Act') and each of them were sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- each in default to undergo imprisonment for two years. Similarly, the accused appellant Ahalya Pradhan was convicted u/s 25 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- in default to further undergo imprisonment for two years. The case of the prosecution is that on 16.3.2007 at 11 A.M. Mr. Raghunath Das (P.W. 7), who was Officer-in-charge of Baunsuni Police Station received reliable information that the appellants Sarat Pradhan, Sanjay Pradhan and Sanjib Pradhan of village Bahira under Baunsuni Police Station limits to have stored 'Ganja' illegally in their godown at Tainjan Chhaka. On receipt of such information P.W. 7 entered those facts in the Station Diary Book vide Entry No. 343 dated 16.3.2007 and sent VHF message to C.I. of Police, Boudh. On receipt of instruction from the C.I. of Police, Boudh over VHF P.W. 7 after making Station Diary Entry No. 348 proceed to the spot along with A.S.I. of Police Sri N.K. Sarangi to raid the premises. P.W. 7 sent a requisition to the local R.I., Baunsuni to accompany him to the spot and to demarcate the spot and also request was made to the Sub-Collector, Boudh to depute one Executive Magistrate to remain present at the spot during search and seizure. It is the further case of the prosecution that at 11.30 A.M., P.W. 7 along with A.S.I. of Police, N.K. Sarangi, R.I., Baunsuni proceeded to the spot and reached there around 11.50 A.M., P.W. 7 called two local witnesses, namely Chittaranjan Sahu (P.W. 2) and Niladri Mahakud (P.W. 1), Gunadhar Sahu, the R.I. Baunsuni (P.W. 12) and apprised them, the purpose of visiting the spot and asked them to assist him in conducting the raid of the godown house of accused Sarat Pradhan of Tainjan Chhaka. P.W. 2 identified the said godown to be raided by P.W. 7 which was confirmed by P.W. 12 the local R.I., Baunsuni. It was found that the godown in question stood recorded in the name of appellants Sarat Pradhan, Sanjay Pradhan and Sanjib Pradhan who are the sons of appellant No. 4 Ahalya Pradhan. Around 1.00 P.M. Smt. Susama Barik, (P.W. 6), the Executive Magistrate, Boudh arrived at the spot and she was informed by P.W. 7 about the storing of Ganja in the locked spot house. Personal search of P.W. 7 and all the witnesses were given before the Executive Magistrate (P.W. 6) and nothing incriminating could be recovered from their person. Thereafter, P.W. 7 broke open the lock of the godown and recovered three bags of Ganja from the southern side room of the godown. On weighing the three bags containing Ganja in presence of the witnesses it was found in the bag marked 'A' there were 11 Kilograms of Ganja. The 'Ganja' contained in the bag marked 'B' weighed 14 Kilograms and the bag marked 'C' was found containing 15 Kilograms of Ganja on being weighed. P.W. 7 collected two samples of Ganja weighing 50 Grams each from each of the 3 bags. Thereafter P.W. 7 stitched all the Ganja packets and sample packets and sealed the same with his personal brass seal and sealing wax and the specimen brass seal impression were affixed to the paper slips marked D and D/1. The seizure list was prepared at the spot. The paper slips attached to the Ganja bags as well as its sample packets was containing the signature of the Magistrates as well as the witnesses. Plain paper F.I.R. was drawn up by P.W. 7 at the spot and was sent to Baunsuni Police Station for registration of the case. The C.I. of Police, Boudh who was camping at Baunsuni on receipt of the plain paper F.I.R. (Ext. 13) registered Baunsuni P.S. Case No. 25 of 2007 and took up investigation. Police on completion of investigation placed charge sheet against the appellants to stand their trial. 2. The plea of the four appellants was that of complete denial of seizure of any Ganja from their possession and it is their further plea that they have been falsely entangled in this case. Police on completion of investigation placed charge sheet against the appellants to stand their trial. 2. The plea of the four appellants was that of complete denial of seizure of any Ganja from their possession and it is their further plea that they have been falsely entangled in this case. It is also their plea that the house which was said to have been searched situate 2 kilometers away from their residential house and they do not live in that house. It is also their further plea that out of those two rooms of the house raided one room has been given on rent to one Sasibhusan Patra where he had opened a grocery shop and the other room was lying vacant. 3. The prosecution in order to bring home the guilt of the accused persons had examined 13 witnesses in all and of them P.W. 7 was the O.I.C. of Baunsuni Police Station, who conducted raid of the godown belonging to the appellants and recovered Ganja which was there in one locked room of the said godown. P.Ws. 9, 10 and 11 were the three Police Officers who had taken part in the investigation of the case. P.W. 12 was the R.I., Baunsuni, who had demarcated the spot. P.W. 13 is the Marketing inspector, Boudh, who had accompanied the Sub Collector to the spot. P.W. 8 was the Photographer, who had taken snaps of the godown and of the vehicle Tata Special. P.W. 6 was the Deputy Collector-cum-Executive Magistrate, Boudh, who was a witness to the search and seizure of Ganja. P.W. 4 was a Police Constable of Baunsuni Police Station, who speaks about the seizure of the command certificate, some photographs and one C.D. P.Ws. 1, 2 and 3 were the three independent witnesses for the prosecution to speak about the seizure of Ganja from the godown of the appellants. The appellants declined to examine any witness in their defence. 4. The learned Special Judge, Boudh on consideration of the evidence as laid by the prosecution about the seizure of Ganja which the appellants had stored in their godown convicted the appellants and passed the impugned sentences. 5. The appellants declined to examine any witness in their defence. 4. The learned Special Judge, Boudh on consideration of the evidence as laid by the prosecution about the seizure of Ganja which the appellants had stored in their godown convicted the appellants and passed the impugned sentences. 5. Learned counsel appearing for the appellants in course of his argument contended that there is absolutely no evidence worth the name that the appellants were in conscious possession of Ganja which were recovered from the spot house and the evidence of the I.O. P.W. 7, namely, the Seizing Officer and the other witnesses are enough to discard the entire case of the prosecution. But the learned Special Judge, Boudh failed to appreciate the evidence on record and without considering the legal issues involved convicted the appellants who are innocent persons and therefore it was strenuously urged that the appellants having no nexus with the alleged crime be acquitted. 6. Mr. Zafrullah, learned Additional Standing Counsel for the State supported the order of conviction and the impugned sentences imposed on the appellants by contending that the evidence of P.Ws. 6 and 7 unflinchingly point to the guilt of the appellants that they had stored Ganja in their godown and none-else. It was also contended by the learned State counsel that even if independent witnesses have not supported the factum of seizure the same cannot be a ground to discard the evidence of the official witnesses especially when there is no controversy that the premises searched by P.W. 7 belong to the appellants. 7. Since in this case the prosecution has alleged recovery of seizure of 40 Kilograms of Ganja from the house belonging to the appellants which situates at Tainjan Chhakon 16.3.2007 which stand recorded in the names of four appellants, the heavy onus lies on the prosecution to establish that the contraband Ganja was seized from the exclusive and conscious possession of the appellants and it is also incumbent upon the prosecution to establish that it was the appellant Ahalya Pradhan being the owner of the godown in question allowed accused Sarat Pradhan, Sanjay Pradhan and Sanjib Pradhan her three sons to store three bags containing 'Ganja' in the said house. Besides the onerous duty of the prosecution is also to prove the factum of search and seizure of the contraband articles. 8. P.Ws. Besides the onerous duty of the prosecution is also to prove the factum of search and seizure of the contraband articles. 8. P.Ws. 1 and 2, the two independent witnesses for the prosecution have deposed that they do not know anything about this case. It is also their evidence that their signatures were obtained on some blank papers by Police. Both of them were declared hostile but nothing could be elicited from their mouth to throw some light on the factum of search and seizure. On the other hand, it is the evidence of P.W. 1 in his cross-examination that his house situates 10 K.Ms. away from Tianjan Chhak and he signed on some blank papers at the police station. P.W. 2 in his cross-examination deposed that the house which situate at Tianjan Chhak has been let out by the accused persons. Similarly, P.W. 3, who is another witness for the prosecution simply deposed that he does not know anything about the occurrence and once police came to his 'pan' shop (Betel shop) and obtained signatures on some blank papers. This witness was declared hostile by the prosecution, but that was again a vain attempt. P.W. 4 is the Police Constable who simply deposed about the seizure of the extract of station diary entry, command certificate, copy of one message and report of S.F.S.L. by the C.I. of Police on production by Sri R.N. Das on 31.2.2007 and he has proved the seizure list Exts. 7. Similarly, it is also his evidence that on 5.4.2007 the C.I. of Police seized some photographs and CD, from the photographer of DPO Office vide seizure list Ext. 9 and he has proved his signature on Ext. 9 and Ext. 9/1. This witness, P.W. 4 deposed that he was never examined by the C.I. of Police. P.W. 5 who is another independent witness for the prosecution he also deposed that he does not know anything about this case. 9 and he has proved his signature on Ext. 9 and Ext. 9/1. This witness, P.W. 4 deposed that he was never examined by the C.I. of Police. P.W. 5 who is another independent witness for the prosecution he also deposed that he does not know anything about this case. P.W. 6 deposed that on 16.3.2007 he was the Deputy Collector-cum-Executive Magistrate, Boudh and that day on the direction of the Collector, Boudh he proceeded to Tainjan Chhak under Baunsuni Police Station and in her presence as well as the witnesses police broke open the lock of a 'Pucca' house which was under lock and key and when she along with the police and local witnesses, Revenue Inspector and Marketing Inspector entered into the said house they found three Jari bags containing Ganja. It is her further evidence that the contents of Jari bags were weighed and each of the Ganja bag weighed 11 Kgs., 14 Kgs. and 15 Kgs. respectively which were marked by the O.I.C. Baunsuni Police Station as A, B and C respectively. P.W. 6 further deposed that from each of the said bags sample each weighing 100 Grams were drawn and each of the 100 Grams samples so drawn were divided into two parts and kept separately by marking A/1 and A/2, B/1 and B/2 and C/1 and C/2 respectively. The gunny bags and samples were sealed with paper slips containing her signature and signature of the witnesses and were sealed with wax seal along with brass seal impression of the O.I.C. and she has proved the seizure list Ext. 1/2. P.W. 6 further deposed that R. 1, who was present there identified the ownership of the house in question. Though P.W. 6 is a very responsible Government Officer but she has not whispered a word about the ownership of the house in question which they had search by breaking open the lock. P.W. 6 has not breathed a word if the said house was in possession of the four appellants. The evidence of P.W. 6 also shows that in Court she could only identify two Jari bags, namely, bags marked A and B only but she could not identify the other Jari bag as the said bag did not bear her signature on the paper slip. Thus, the evidence of P.W. 6 is of no assistance to the case of prosecution. Thus, the evidence of P.W. 6 is of no assistance to the case of prosecution. P.W. 7 was the O.I.C. of Baunsuni Police Station on 16.3.2007 deposed that around 11 A.M., he received reliable information about the illegal possession of Ganja by the accused persons, namely, Sarat Pradhan, Sanjaya Pradhan and Sanjib Pradhan, who are the sons of Golap Chand Pradhan of village Bahira and accordingly, he sent VHF message to C.I. Boudh and entered those facts in the Station Diary Entry Book vide No. 343 dated 16.3.2007 and gave requisition to the R.I., Baunsuni to visit the spot house and to identify the same. He also deposed that he requested the Sub-Collector, Boudh to depute one Executive Magistrate to remain present with him at the time of search and seizure whereafter he proceeded to the spot along with A.S.I. of Police, N.K. Sarangi, R. 1 of Baunsuni in the police Jeep. It is also his evidence that at the spot i.e. Tianjan Chhak he called two local witnesses, namely, Chittaranjan Sahu and Niladri Mahakud and official witnesses, namely, Marketing Inspector, Bijaya Barik, Gunadhar Sahu, the R. 1. Baunsuni and intimated them regarding the purpose of his visit and requested them to assist him in the raid. P.W. 7 also deposed that the R. 1. Baunsuni demarcated the spot and prepared the sketch map and thereafter photograph of the spot house was taken by the photographer, namely, Abani Kumar Meher of village Manupal. According to the report of the R. 1. Baunsuni the house so demarcated appertaining to Plot No. 2789 and Khata No. 5573 stands recorded in the name of the four appellants. The further evidence of P.W. 7 is that the Executive Magistrate arrived at the spot at 4 P.M. and he informed the Executive Magistrate that there was Ganja in the locked house and thereafter he gave her personal search to the Executive Magistrate and also to the witnesses and nothing incriminating could be found on his person and accordingly thereafter the southern side of the room which was under lock was broke open and when they entered inside the room found three bags containing Ganja in that room which they recovered and weighment of the contents of such bags were taken by Chittaranjan Sahu of Tainjan Chhak. It is also his evidence that the Ganja in bag marked 'A' weighed 11 Kgs., the bag marked 'B' was found containing 17 Kgs. of Ganja and bag marked 'C' was containing 15 Kgs. of Ganja which he seized in presence of the witnesses and the Executive Magistrate and prepared the seizure list. P.W. 7 also deposed that sample of Ganja so seized each weighing 50 Grams were collected from each of the seized bags and those six sample packets were marked and sealed in his personal brass seal and also by using wax. It is also his evidence that he handed over the brass seal in the zima of one Rajaram Barik of village Bahira vide Zimanama Ext. 6/1. After sealing the Ganja packets, sample packets by obtaining signature of the Executive Magistrate on the paper slip he drew up the F.I.R. at the spot which he has proved as Ext. 13 and on his return to the police station handed over the plain paper F.I.R. along with seized articles, sample packets and documents to C.I., Boudh and also intimated the S.P., Boudh regarding the search and seizure of Ganja vide dispatch No. 460 dated 16.3.2007 which has been marked as Ext. 14. P.W. 7, the O.I.C., of Baunsuni Police Station, who conducted the search and seizure deposed that the accused persons are inhabitants of Bahira which is one and half Kilometers away from the spot and the accused persons were residing in their family in village Bahira. It is also his further evidence that he did not direct his investigation to know if all the rooms were let out or not and he has not examined Suresh Pradhan and Kabiraj Pradhan the adjacent neighbours of the spot house. 9. I may mention here that the accused persons in their examination u/s 313 of the Cr.P.C. have taken the plea that they reside in a house which situate 2 Kilometers away from the house at Tainjan Chhak and they have let out one room to Sashi Bhusan Patra, who has opened a grocery shop in that room and the other room was lying vacant. This plea of the appellants gets support from the evidence of P.W. 2, who deposed that the house which situates at Tainjan Chhak has been let out by the accused persons. This plea of the appellants gets support from the evidence of P.W. 2, who deposed that the house which situates at Tainjan Chhak has been let out by the accused persons. P.W. 7 the officer who conducted the raid and seized the contraband articles in his cross-examination-in-chief in Para-17 also deposed that he did not direct his investigation to ascertain if all the rooms of the house searched were let out or not. P.W. 13 the Marketing Inspector, who was also present at the time of search and seizure as alleged by the prosecution in this case deposed that the house of Sarat Pradhan situate in front of Mahila S.H.G. and at the time of search and seizure the Mahila Self Help Group was given retailorship of Kerosene and they found Kerosene oil on the verandah of Sarat Pradhan. P.W. 12 was the Revenue Supervisor on 16.3.2007 and he simply deposed about the demarcation of the spot as per the requisition of the O.I.C., Bausuni P.S. and the Sub-Collector, Boudh. The evidence of P.W. 12 is that the spot house stands recorded in the names of the four appellants. But it is his further evidence that he does not know the names of the owners of the plots around the spot and he has not given any statement to police. P.W. 8 is only a photographer, who speaks to have taken photo of a vehicle and the godown and he has deposed that police did not examine him in this case and he also deposed that he only found police at the spot. P.Ws. 10 and 11 were the two I.Os. P.W. 10 simply deposed that he took charge of the investigation of this case from ex-C. 1., Ramesh Chandra Moharana and he arrested the accused namely, Sanjeeb Pradhan on 4.10.2007 at 9.00 A.M. and forwarded him to Court. He also deposed that he arrested accused Sarat Pradhan on 15.12.2007 at 10.00 P.M. and forwarded him to Court on 16.12.2007 and on 6.6.2008 he made over charge of the investigation to Sri L. Buda, the then C.I. of Police, Boudh. P.W. 10 admitted that he had not visited the spot. He also deposed that he arrested accused Sarat Pradhan on 15.12.2007 at 10.00 P.M. and forwarded him to Court on 16.12.2007 and on 6.6.2008 he made over charge of the investigation to Sri L. Buda, the then C.I. of Police, Boudh. P.W. 10 admitted that he had not visited the spot. P.W. 9, who is another police officer deposed that on 26.6.2008 he was C.I. of Police, Boudh and he arrested the lady accused, namely, Ahalya Pradhan on 18.12.2008 and on 27.12.2008 on receipt of the order from S.P., Boudh, he submitted charge-sheet against the four appellants. In his cross-examination P.W. 9 deposed that he arrested accused Ahalya Pradhan from her residential house at village Bahira where she was residing. P.W. 11 is the main I.O., who deposed that on receipt of the plain paper F.I.R. from Sri R.N. Das, the O.I.C., Baunsuni Police Station on 16.3.2007 at 4.45. P.M. he registered P.S. Case No. 25 of 2007 and took up investigation and he kept the seized materials in police Malkhana for safe custody and reflected the same in the Station Diary book and produced the seized articles before the S.D.J.M., Boudh on 17.3.2007 to send the exhibits to the S.F.S.L. for chemical examination. He admitted in his cross-examination that save and except seizure of the vehicle, examining some witnesses and verification of some documents he did not investigate further into the case. This P.W. 11, the I.O. has made a devastating statement before the Court on oath that he had kept three packets of contraband articles in the Police Malkhana marked 'A', 'B' and 'C', out of which two packets were produced in Court and he did not find the third packet in Court while deposing. It is also his evidence that he cannot confirm the third packet which was there in Court as the material object as there was no mark of identification on that. It is also his evidence that he cannot confirm the third packet which was there in Court as the material object as there was no mark of identification on that. The evidence of P.W. 11 so also the evidence of P.W. 6 the Executive Magistrate about the missing of the 3rd packet and the 3rd packet produced in Court along with the bags marked 'A' and 'B', could not be identified by them as the packet which was seized by P.W. 7 and recovered from the spot house along with two other bags containing Ganja is definitely fatal to the case of the prosecution and raises a question mark about the safe custody of the seized materials, especially when the evidence of P.W. 7 is that the seized properties were handed over to C.I. of Police, Boudh and he cannot say where he had kept those seized properties. P.W. 7 also deposed that he cannot say how and when the seized samples were sent for chemical examination. 10. The evidence of P.W. 13, the Marketing Inspector raises a great doubt in my mind as to the truth in the case of the prosecution about the factum of search and seizure of the house on 16.3.2007 by P.W. 7 which stands recorded in the names of the four appellants because it is his evidence that he accompanied the Sub-Collector to the spot for raid in connection with Kerosene and at the spot in front of a house they found some kerosene and that house was consisting of three rooms which were locked and on query they could know that the said house belongs to Sarat Pradhan. 11. It is the evidence of P.W. 13 that from one room they recovered some Kerosene and measuring instruments which were seized at the spot and the Police recovered some Ganja from other rooms. It is also his evidence that he cannot identify the seized Ganja. This P.W. 13 was declared hostile by the prosecution. But by that nothing could be elicited from his mouth by the prosecution by putting leading questions. Thus, the evidence of P.W. 13 is of no help to the case of the prosecution rather as I have already discussed above it creates doubt as to the truth in the entire case of the prosecution and about the seizure of Ganja from the conscious and exclusive possession of the appellants. 12. Thus, the evidence of P.W. 13 is of no help to the case of the prosecution rather as I have already discussed above it creates doubt as to the truth in the entire case of the prosecution and about the seizure of Ganja from the conscious and exclusive possession of the appellants. 12. The evidence as laid in this case with regard to the search of the alleged house in question and recovery of 'Ganja' is shrouded with suspicious circumstances which affects the very foundation of the case. P.W. 6 a highly responsible officer, namely, the Executive Magistrate, Boudh in her evidence stated that she as per the direction of the Collector, Boudh proceeded to Tainjan Chhak and arrived their at 1.00 P.M. and after her arrival the police broke open the lock of a "Pucca" house which was under lock and key in presence of the witnesses, Revenue Inspector and Marketing Officer. But P.W. 7 the Seizing Officer deposes that the Executive Magistrate arrived at the spot around 4.00 P.M. and till then he was guarding the spot. But again this P.W. 7, the O.I.C., Baunsuni Police Station and Seizing Officer deposed that at about 3.30 P.M. he along with witnesses entered into the rooms and found three Ganja bags in that room. P.W. 13 in his evidence nowhere speak about the presence of P.W. 6, the Executive Magistrate but he emphatically deposed that it was the Sub-Collector, Boudh, who was present at the spot as he had accompanied the Sub-Collector for raid and they had gone for Kerosene checking. In the instant case, when the independent witnesses have not supported the case of the prosecution. Thus, the discrepancy that appear in the evidence of the official witnesses, a great doubt arises in my mind as to the truth in the case of the prosecution. When the independent witnesses in this case have not supported the case of the prosecution and in view of the glaring inconsistencies appear in the evidence the official witness about the search and seizure and non-identification of the 3rd bag alleged to have been recovered from the spot house containing 'Ganja' and when the Investigating Officer P.W. 12 could not identify the 3rd bag which was recovered from the spot, the only irresistible conclusion that can be arrived is that the prosecution has not come at all with clean hand to Court. Thus, when the factum of search and seizure has not been established and when there is no evidence on record to show that house in question from which the alleged Ganja was recovered was under the exclusive possession of the appellants and when the evidence is that the house had been let out, it cannot be said that the house in question or the room in question from which Ganja was recovered was under the exclusive possession of the appellants. There is no evidence on record to show that the appellant Ahalya allowed her three sons, namely appellants Sarat Pradhan, Sanjaya Pradhan and Sanib Pradhan to store Ganja in that house. There is no iota of evidence on record to show that if any of the appellant was ever visiting the spot house or were using the same for their own purpose. Even if we accept the evidence of the R.I., P.W. 12 as well as P.W. 7 that the spot house stands recorded jointly in the name of the appellants, but when none of the appellants were present at the spot during the search and recovery and when overwhelming evidence on record shows that the appellants were living in village Bahira in their residential house and the house in question had been let out it cannot be held that the contraband Ganja were recovered from the exclusive and conscious possession of the appellants. In that context we can refer to a decision of this Court as reported in Bata Krushna Sahu Vs. State of Orissa. Besides that we can profitably refer to a decision of the Apex Court as reported in Om Prakash @ Baba Vs. State of Rajasthan, and also a decision of this Court reported in >(1994) 7 OCR 590, Krushna Dora v. State and also in a case reported in Raju Qurasi Vs. State of Orissa. State of Orissa. Besides that we can profitably refer to a decision of the Apex Court as reported in Om Prakash @ Baba Vs. State of Rajasthan, and also a decision of this Court reported in >(1994) 7 OCR 590, Krushna Dora v. State and also in a case reported in Raju Qurasi Vs. State of Orissa. Thus, keeping in mind such settled position of law and also keeping in mind that in the instant case no neighbouring witnesses have been examined in support of the prosecution case that the appellants were the occupants of the house from which contraband Ganja was recovered and when there is no evidence to show that the appellants were dealing in Ganja and had stored Ganja and when there is no unimpeachable evidence to support the case of the prosecution, I am at a loss to understand as to how the learned Special Judge believed the case of prosecution and convicted the appellants. Thus, the only irresistible conclusion that can be arrived at is that, the findings of the learned Special Judge cannot be sustained in the eye of law. In the result, the appeal is allowed and the impugned judgment and sentences imposed on each of the appellants are set aside. The appellants are acquitted of the respective charges and they are set at liberty forthwith. Final Result : Allowed