Judgment : 1. The above appeal is directed against the judgment dated 18/6/2008 in S.C.(NDPS) No.7 of 2007 of the court of the Special Judge for NDPS Act Cases, Thodupuzha, at the instance of the first accused in the above Sessions Case since he is aggrieved by the conviction and sentence imposed on him for the offence under Section 20(b)(ii)B of the NDPS Act. 2. The prosecution case is that, on 30/7/2003 at about 3 P.M. when PWs.3 and 13 were on patrolling along the places within the area of the Excise Enforcement Squad, Adimali and when the party reached National High Way-49 at Adimali and when they proceeded towards Eastern diversion, in front of Fathima Church, Koobanpara road leading to Vijaya Metal Crusher, they found the appellant, who is the first accused coming to the N.H.-49 road, carrying a paper packet and on seeing the Excise Party he attempted to go back, but he was intercepted and he was questioned. But no proper answer was given. So, according to PW.3, doubting the conduct and approach of A1, he called two neighbouring witnesses and the packet which was carried by A1 was examined which was found to be dried ganja. The same was further confirmed by PW.3 by smelling. 3. Thus, according to the prosecution, the accused two in numbers committed the offence punishable under Section 20(b)(ii)B read with Section 8(c) of the NDPS Act and with the above allegation, Crime No.9 of 2003 of NES, Adimaly was registered. On completing the investigation, charge laid in the court below. On the appearance of both the accused, after hearing the prosecution and the defence, a formal charge was framed against the accused for the offence punishable under Section 20(b)(ii) B of the NDPS Act and the accused denied the charge and pleaded not guilty when the same was read over and explained to the accused. Consequently the prosecution adduced its evidence by examining PWs.1 to 6 and producing Exts.P1 to P14. MO.1 and MO.2 were identified as material objects. Finally the learned Judge held that the prosecution has failed to bring any evidence to connect the 2nd accused with the crime and thus he found not guilty and he is acquitted. But the first accused found guilty of the offence under Section 20(b)(ii)B and he is convicted thereunder. MO.1 and MO.2 were identified as material objects. Finally the learned Judge held that the prosecution has failed to bring any evidence to connect the 2nd accused with the crime and thus he found not guilty and he is acquitted. But the first accused found guilty of the offence under Section 20(b)(ii)B and he is convicted thereunder. On such conviction the 1st accused is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.25,000/- and in default in paying the fine amount, he is directed to undergo rigorous imprisonment for another six months. Set off is allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal at the instance of the first accused in the above sessions case. 4. Heard Sri.S.Rajeev, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State. 5. PW.3 is the official of Excise, who detected the crime, when he was examined, he had deposed about the facts and circumstances, which lead to the alleged seizure of ganja from A1 and his arrest, in terms of the prosecution allegation, which I have already indicated. According to PW.3, when he questioned A1 about the source, A1 disclosed that the same was entrusted with him by A2 for sale. Thereafter, according to PW.3, he informed A1 about his right to be examined in the presence of a Gazetted Officer, but the accused did not insists for such procedure. However, PW.3 sent an Excise Guard to the Circle Inspector of Excise, requesting him to be a witness for body search. It is the further case of PW.3, as the first accused disclosed about the involvement of A2, with the aid of A1, PW.3 proceeded to the house of A2 after preparing a search memorandum. But nothing seized from the house of A2 and thereafter PW.3 along with A1 and the witnesses came back to the place at which A1 was intercepted. Thus, according to PW.3, thereafter he seized the entire contraband articles from the possession of A1 by preparing a seizure mahazar. Thus, according to PW.3, A1 was arrested from the spot and the contraband articles were seized. 6. The further investigation was undertaken by PW.5. According to PW.5, the body search of A1 was conducted by PW.3 in his presence but nothing recovered pursuant to such personal search. Thus, according to PW.3, A1 was arrested from the spot and the contraband articles were seized. 6. The further investigation was undertaken by PW.5. According to PW.5, the body search of A1 was conducted by PW.3 in his presence but nothing recovered pursuant to such personal search. Thereafter PWs.5 and 3 were went to the Excise Range Office, Adimaly wherein PW.5 registered crime and occurrence report. According to PW.5, he had also prepared forwarding note. PW.6 had finally laid the charge and before that, he had prepared scene mahazar. The two independent witnesses cited and examined by the prosecution, namely, PWs.1 and 3 turned hostile towards the prosecution. As PW.1 admitted his signature in the arrest memo with respect to the arrest of A1, and in the search list with respect to the search of house of A2, Ext.P1 arrest memo and Ext.P2 search list are marked through PW.1. Ext.P3 is the CD contradiction of PW.1. Ext.P4 is the signature of PW.1 on the paper slip on the sample. When PW.3 was examined, Ext.P5 search memo with respect to the house of A2, Ext.P6 arrest intimation with respect to the arrest of A1, Ext.P7 seizure mahazar, Ext.P8 property list and Ext.P9 inventory of MOs. were marked through PW.3. PW.3 has also identified MO.1 residue of ganja after sampling and MO.2 ganja, etc. 7. PW.4 is the then Village Officer through whom Ext.P3 cite plan got prepared. When PW.5 was examined, Ext.P11 crime and occurrence report and Ext.P12 forwarding note were marked through him. Ext.P13 chemical analysis report and Ext.P14 scene mahazar got marked through PW.6. It is on the basis of the above evidence and materials, the trial court found that, the first accused/the appellant herein is found guilty for the said offence and the second accused is acquitted as he is found not any way connected with the alleged incident. 8. The learned counsel for the appellant vehemently submitted that the seizure allegedly effected from the possession of A1 cannot be believed because of the contradiction occurred in the evidence of PW.3 the officer who allegedly effected the seizure and particularly in the absence of any independent witnesses. 8. The learned counsel for the appellant vehemently submitted that the seizure allegedly effected from the possession of A1 cannot be believed because of the contradiction occurred in the evidence of PW.3 the officer who allegedly effected the seizure and particularly in the absence of any independent witnesses. On the other hand the learned Public Prosecutor submitted that the evidence of PW.3 corroborated by the contemporary document like Ext.P7 seizure mahazar and Ext.P11 arrest memo justifying the finding of the trial court about the involvement of A1 and therefore, no interference is warranted with respect to the conviction recorded by the trial court against the appellant. 9. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have perused the evidence and materials on record. 10. Having regard to the facts and circumstances involved in the case especially in the light of the evidence and materials on record particularly in view of the rival contentions advanced, the question to be considered is whether the trial court is justified in its finding and convicting the appellant. The specific allegation of the prosecution is that the first accused was found in possession of 1900 gm. of ganja while he was transporting the same in front of the Fathima Matha Church while PW.3 and party were on patrol duty. To prove the above allegation, as PWs.1 and 2 who are the independent witnesses turned hostile, the prosecution very much relied upon the evidence of PWs.3 and 5, who are the official witnesses. Among PWs.3 and 5 PW.3 is the official who allegedly seized the contraband articles from the possession of the accused. According to me, his evidence is not sufficient to inspire the confidence of the court because of the inherent defect and contradiction in his evidence which is further complicated by the contemporary document namely Ext.P7. Going by the evidence and materials on record it appears that after the interception with A1 and after realising the fact according to PW.3 that A1 was found in possession of ganja, without effecting the seizure of the same, after sending the guard for bringing PW.5, he along with A1 and Pws.1 and 2 went to the house of A2 for search of the house of A2. According to PW.3, after conducting search in the house of A2 himself and party again returned to the place of occurrence namely at the place where A1 was intercepted by PW.3 and thereafter the ganja was seized from his possession and that too after conducting a body search of A2 in the presence of PW.5. As rightly pointed out by the learned counsel for the appellant PW.5 arrived at the place of occurrence by 3.40 P.M. even as per the version of PW.3 and also as per the evidence of PW.5 himself. Arrest in this case was recorded as per Ext.P1 arrest memo at 3.45 P.M. The arrest intimation was given at 3.50 P.M. But according to PW.5, when he reached the spot by 3.40 P.M. he found that the contraband article was with PW.3 and the Excise Officials. That shows before, the exact seizure of the contraband article at 4 P.M. as claimed by PW.3, he had already seized the same. Therefore the evidence of PW.3, about the seizure, not free of doubt and infirmities. 11. According to PW.3, the first accused was seen and intercepted at 3.05 P.M. and on interrogating him, he disclosed about the involvement of A2 and thus according to PW.3, he proceeded to the house of A2 as led by A1 with the company of PWs.1 and 2. If the same is correct, I failed to understand under what authority A1 was taken to the house of A2 before effecting his arrest. Even according to PWs.3 and 5, A1 did not disclose any concealment of contraband article in the house of A2 either by A1 or A2 or by both of them, if that be so, according to me, the taking of A1 to the house of A2 is illegal. In this juncture, it is relevant to note that it is quite unbelievable that after the realisation of the facts that A1 had seen possession of Ganja, no seizure was effected then and there and in spite of that PW.3 proceeded to the house of A2. 12. In this juncture, it is relevant to note that it is quite unbelievable that after the realisation of the facts that A1 had seen possession of Ganja, no seizure was effected then and there and in spite of that PW.3 proceeded to the house of A2. 12. However it is very strange to note that after the search of the house of A2, PW.3 took A1 to the place of occurrence namely the spot at which A1 was initially intercepted and thereafter according to PW.3 he effected the seizure which seizure, according to me, cannot be believed in view of the specific endorsement contained in Ext.P7 seizure mahazar. In Ext.P7 seizure mahazar, particularly on its last page i.e., page No.5 towards the bottom it is recorded to the effect that:- On the basis of the above recital in Ext.P7 the learned counsel for the appellant submitted that Ext.P7 seizure mahazar was not prepared at the place of occurrence as claimed by PW.3, whereas the same prepared in the Excise Range Office. According to me, the above submission requires serious consideration since the same contains some force in view of the other facts and circumstances involved in the case. It is relevant to note that in Ext.P2 search list PW.3 obtained the signature of PWs.1 and 2 who are also attestors to Ext.P7 seizure mahazar wherein also alleged contained their signatures. But on comparison of these signatures seen in Ext.P7 mahazar with the signature in Ext.P2 search list, it is strange to note that those signatures have absolutely no similarity with the signatures in Ext.P2 search list. In this juncture it is relevant to note that Pws.1 and 2 have admitted their signatures in Ext.P1 arrest memo and Ext.P2 search list. But they did not admit the same in Ext.P7 seizure mahazar. According to me, the above contradictions or dissimilarity in the signature created doubt in Ext.P7 mahazar particularly in view of the above mentioned recital contained in Ext.P7. 13. It is relevant to note that it is quite unbelievable that after the search of house of A2 with the presence of PWs.1 and 2 and thereafter PW.3 again gone to the place of occurrence with A1 and thereafter prepared a mahazar at the place of occurrence. 13. It is relevant to note that it is quite unbelievable that after the search of house of A2 with the presence of PWs.1 and 2 and thereafter PW.3 again gone to the place of occurrence with A1 and thereafter prepared a mahazar at the place of occurrence. In view of the recital contained in Ext.P7 seizure mahazar it cannot be ruled out the possibility of preparing Ext.P7 in the Excise Range Office as contented by the learned counsel for the appellant and if actually Ext.P7 seizure mahazar was prepared at the place of occurrence, absolutely there is no occasion or possibility to incorporate that the case was taken against A1 and A2 putting them in the array of accused. 14. As I indicated earlier, according to PW.3, the seizure was effected at 4 P.M. i.e., after the search of the house of A2 and according to PW.3, till that time PW.1 and 2 were present. But it is relevant to note that, when PW.5 reached the spot by 3.45 P.M., the contraband articles were seen in the possession or with the Excise Official. Thus, these two versions of PWs.3 and 5-the official witnesses cannot go together. So, it can be reasonably presumed, particularly in view of the recital contained in Ext.P7, that the same was prepared in the Excise Range Office and not at the place of occurrence as claimed by PW.3. 15. In the light of the above discussions and in view of the evidence and materials referred to above and due to the conflict and contradiction in the evidence of PWs.3 and 5, particularly in view of the recital contained in Ext.P7 seizure mahazar, I am unable to accept the case of the prosecution since they have miserably failed to clear the doubt and therefore the benefit of doubt goes in favour of the appellant. The trial court has failed to consider the above vital defect and contradiction in the evidence of the prosecution witnesses as well as the contradiction contained in Ext.P7 seizure mahazar- a vital document relied on by the prosecution. Hence conviction recorded by the trial court cannot be approved and accordingly the same is set aside. The trial court has failed to consider the above vital defect and contradiction in the evidence of the prosecution witnesses as well as the contradiction contained in Ext.P7 seizure mahazar- a vital document relied on by the prosecution. Hence conviction recorded by the trial court cannot be approved and accordingly the same is set aside. In the result, this appeal is allowed setting aside the judgment dated 18/6/2008 in S.C. (NDPS) No.7 of 2007 on the file of the court of the Special Judge for NDPS Act Cases, Thodupuzha and the bail bond, if any, executed by the petitioner stands cancelled and he is set at liberty. If the petitioner has deposited any amount in the trial court in terms of the order dated 23/6/2008 in Crl.M.Appln.No.6038 of 2008 of this Court, the same shall be returned to the appellant forthwith in case an application is moved in this regard. The Criminal Appeal is allowed accordingly.