JUDGMENT : ” The appellant has been convicted under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ' the NDPS Act-” ) and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/-, in default to undergo R.I. for one year. Challenging the said order of conviction and sentence, he has preferred this appeal. 2. Facts of the case, bereft of unnecessary details is that one Satyanarayan Behera, Inspector-In-Charge, Chauliaganj Police Station, on 1-12-2006 at 11.30 a.m., received information that the accused was proceeding on a scooter to his house located at Nehrupali from Nuabazar side carrying ganja and that he has kept ganja in his house. He having made station diary to that effect, informed S.P. and D.S.P. Cuttack, his superior officers over telephone and sent the extract of the statition diary to them. On direction, one Bikram Keshari Jena, S. I. of Police attached to the said Police Station went to Netaji field, Potapokhari, Nuabazar along with Maheswar Pani, A.S.I. of Police, Mahendra Kumar Mallick, Police Constable and police staff to ascertain about the truthfulness of the information, which was received. 3. The police team reached to the Netaji field at about 11.40 a.m. and found the accused proceeding towards Nehrupali from Nuabazar on a scooter bearing registration No. OSC-1084, carrying jute bag and plastic air bag. S.I. Jena detained and informed the accused in presence of the independent witnesses that he was suspected of carrying ganja and keeping ganja in his house after disclosing his identity before him. The accused being appraised of his right of being searched in presence of a Gazetted Officer or an Executive Magistrate, gave his option in writing to be searched in presence of a Gazetted Officer. Accordingly, S.I. Jena gave requisition to S.P., Cuttack to depute a Gazetted Officer to remain present during search and seizure of the contraband articles. One Keshab Mohanty, on being called through Police Havildar, B.R. Singh, came to the spot with weighing scale and unit. Kumarmanik Meher, D.S.P., Cuttack reached at the spot at 1.10 p.m. and the accused expressed willingness to be searched in presence of D.S.P., Cuttack. The raiding party and independent witnesses allowed the accused to search in person but no contraband article was recovered from his possession. Thereafter, jute bag containing ganja on weighment came to 14 kgs. 200 gms. Kumarmanik Meher, D.S.P., Cuttack reached at the spot at 1.10 p.m. and the accused expressed willingness to be searched in presence of D.S.P., Cuttack. The raiding party and independent witnesses allowed the accused to search in person but no contraband article was recovered from his possession. Thereafter, jute bag containing ganja on weighment came to 14 kgs. 200 gms. and net ganja came to 13 kgs 700 gms. Similarly, the air bag containing ganja on weighment came to 6 kgs. 200 gms. and net ganja came to 5 kgs. 900 gms. Two samples of 25 grams each were drawn from each of the containers and kept in polythene packets, which were sealed using brass seal. The S.I. Jena and D.S.P., Cuttack and the accused put their signatures on it and the sealed sample packets were marked for identification. The residue ganja was sealed in the same manner and those were marked as ' A-” and ' B-” respectively. Thereafter, the articles were seized and a seizure list was prepared and copy of the same was furnished to the accused. 4. They proceeded to the house of the accused at Nehrupali and a jute bag containing ganja was recovered from his bed room. The jute bag with ganja came to 12 kgs. and the net ganja came 11 kgs. 500 gms. Two samples each weighing 25 gms. were drawn and kept as described earlier. The residual ganja kept in jute bag was sealed in the same manner and it was marked according to procedure usually followed. The brass seal was left in zima of witness, Subasish Mohanty. Thereafter, S.I. Jena arrested the accused as he could not account for its lawful possession of the contraband. The S.I. Jena submitted FIR and produced the accused and the said articles before the I.I.C., Chauliaganj Police Station. The seized articles were kept in police Malkhana. On 2-2-2006, the accused was forwarded to the court and on requisiton of the Investigating Officer, the SDJM, Sadar, Cuttack forwarded the sample packets to SFSL, Rasulgarh for chemical examination on 3-2-2006. In course of investigation, the l. 0. made requistion to the Tahasildar, Sadar, Cuttack for demarcation of the case house and seized the station diary and Malkhana register including the report made under sections 42 and 57 of the NDPS Act. After closure of investigation, the I.O. submitted charge-sheet against the accused. 5. In course of investigation, the l. 0. made requistion to the Tahasildar, Sadar, Cuttack for demarcation of the case house and seized the station diary and Malkhana register including the report made under sections 42 and 57 of the NDPS Act. After closure of investigation, the I.O. submitted charge-sheet against the accused. 5. The accused in course of trial took the plea that nothing was recovered from his possession and that the scooter or the house did not belong to him. Nine witnesses were examined on behalf of the prosecution. None were examined on behalf of the defence. However, two exhibits were led into evidence on behalf of defence. 6. P.W.9, Satyanarayan Behera is the then I.I.C., Chauliaganj Police Station, who received information and directed Bikram Keshari Jena, S.I. of Police to ascertain about the truthfulness of the same. The said Bikram Keshari Jena has been examined as P.W.3. P.W.4, Mahendra Kumar Mallick is the accompanying constable. P.W.6 Maheswar Pani is an A.S.I. of Police, who accompanied P.W.3 as the member of the raiding party. P.W.7, Kumarmani Meher is the DSP, Cuttack in whose presence the entire search was effected. PWs. 2 & 5, Bharat Rout and Subasis Mohanty are the independent witnesses. P.W.1, Keshab Mohanty is the person who weighed ganja at the spot by using weighing scale and unit. P.W.8, Susanta Kumar Sen, S.I. of Police, Chauliaganj P.S. is the I.O., who conducted investigation and submitted charge-sheet against the present appellant. 7. Initially, the learned 1st Addl. Sessions Judge, Cuttack framed charge against the appellant under Section 20(b) (ii) (C) of the NDPS Act by recording as follows :-” ' Firstly -” That you on 1-2-2006 at about 11.30 a.m. at Nehru Field Potapokhari, Nuabazar, were found in possession of 32 kgs. 400 gms of ganja in contravention to Section 8 of N.D. & P.S. Act. And you thereby committed an offence punishable u/S. 20(b) (ii)(C) of N. D. and P.S. Act and within my cognizance. And I hereby direct that you be tried by this Court on the said charge' -. 400 gms of ganja in contravention to Section 8 of N.D. & P.S. Act. And you thereby committed an offence punishable u/S. 20(b) (ii)(C) of N. D. and P.S. Act and within my cognizance. And I hereby direct that you be tried by this Court on the said charge' -. However, after closure of the prosecution evidence on 7-9-2007 and recording statement of the accused under Section 313 of the Cr.P.C., 1973, the charges were re-cast, which read as follows :-” ' Firstly -” That you on 1-2-2006 between 1.20 p.m. to 2.10 p.m. at Netaji Field Potapokhari, Nuabazar, were found in possession of net Ganja 13 kgs. 700 gms., which was kept in a jute bag and net ganja weighing 5 kgs. 900 gms, which was kept in a plastic air bag. Further on the same day between 3.10 p.m. and 4.10 p.m., net ganja weighing 11 kgs. 500 gms, which was kept in a bag was received from your house located at Nehru Palli. And you, hereby committed an offence punishable U/S. 20(b)(ii)(C) of N. D. and P. S. Act and within my congnizance . And I hereby direct that you be tried by this Court on the said charge' -. 8. The learned counsel for the appellant emphatically submitted that the offence for which charges were framed against the appellant constitues two components, firstly, recovery of ganja from his possession, which comes to 13 kgs. 700 gms + 5 kgs. 500 gms, in total 19 kgs. 600 grams. Secondly, the 2nd component is the recovery of 11 kgs. 500 gms of ganja from a house which was allegedly kept by the appellant or was in his possession as alleged by the prosecution. The learned counsel for the appellant further submitted that as far as the second limb of charge is concerned, i.e. recovery of 11 kgs. 500 gms. of ganja from the house is concerned, it is not proved beyond reasonable doubt that such ganja was in the exclusive and conscious possession of the appellant and, therefore, the conviction of the accused under section 20(b)(ii)(C) of the N.D.P.S. Act is illegal and he should have been convicted for the offence under Section 20(b)(ii)(C) of the said Act, which involves quantity lesser than commerical quantity but greater than small quantity, with rigorous imprisonment for a term of 10 years, and with fine of rupees one lakh. It is therefore contended that since the accused has already undergone 8 years of imprisonment, the conviction of the accused under Section 20(b)(ii)(C) be converted into a conviction under Section 20(b)(ii)(B) and he be inflicted a punishment of period already undergone. The learned Addl. Standing Counsel, however, drawing attention of the Court to the impugned judgment contended that the prosecution has proved beyond all reasonable doubts that the appellant was in possession of ganja in that house though the same does not stand recorded in his name. 9. Since the question becomes limited, it is only to be decided whether the prosecution has proved its case beyond reasonable doubt with respect to the 2nd limb of the charge, i.e. house from which contraband ganja of 11 kgs. 500 gms recovered was in his conscious and exclusive possession. In this regard, the evidence of two independent witnesses, i.e. P.Ws. 2 and 5 can be profitable to look into. They have not supported the prosecution case and have resiled from their statement and in cross-examination they are hostile witnesses to the prosecution. So, the evidence of P.Ws. 2 and 5 does not help the case of prosecution in proof of recovery of ganja from the exclusive and conscious possession of the accused-appellant as far as second component of charge is concerned. It is also profitable to look into the reasoning resorted to by the learned 1st Addl. Sessions Judge-cum-Special Judge. At page-14 of the judgment, he has taken into consideration the testimony of P.W.8, which reveals that, on requisition vide Ext. 10 dated 17-2-2006, the Tahasildar, Sadar, Cuttac deputed the Amin for demarcation of the house in question and the report of the Amin, Ext. 11 goes to show that one Jyotshna Sahoo was the recorded tenant of the land, where the case house situates. In this connection, learned Counsel for the accused relied upon the case of Ismile Khan & others v. State of Gujarat, reported in 2000 SCC (Cri.) 1241. The learned trial Judge did not accept the same and distinguished it on facts of the case. However, the learned Special Judge further help that in the case at hand it is not the case of the prosecution that said Jyotshna was staying in the house though she was recorded tenant of it. The learned trial Judge did not accept the same and distinguished it on facts of the case. However, the learned Special Judge further help that in the case at hand it is not the case of the prosecution that said Jyotshna was staying in the house though she was recorded tenant of it. The learned trial Judge also found that it is not brought out in the cross-examination of any of the official witnesses that they have seen Jyotshna in the house at the relevant time. He recorded, on the other hand, the defence itself has brought out from the cross-examination of P.Ws.4 and 6 that nobody was present when they entered inside the house. It is further recorded that it was specifically stated by P.W.4 in his evidence that on disclosure of the accused, his house at Nehrupali was searched and therefore the possession of the accused in respect of that house has been well established and same has not been dislodged merely because said Jyotshna, the recorded tenant of the house has not been examined in that regard. 10. The reasoning resorted to by the learned trial Judge is fallacious and is contrary to the canons of appreciation of evidence in criminal case. It is trite law that prosecution must, in order to succeed, prove the very case it alleges. The prosecution itself led evidence to the effect that the house in question was recorded in the name of Jyotshna. Admittedly, she has not been examined by the prosecution. No other evidence has been led by the prosecution to establish that the present appellant was a tenant under the said Jyotshna or the said Jyotshna had allowed the present appellant to stay there. There are other discrepancy regarding possession of the house as P.W.4 says that at the time of search the house was locked. However, P.W.7 says that he does not recollect whether the house was locked or not. It is not the case of the prosecution that the appellant produced the key to the house and with that key the house was unlocked. In sum and substance, the prosecution has failed miserably to establish that the house in question is actually in possession of the appellant. Hence, the prosecution has failed to prove that the ganja recovered from that house was in conscious and exclusive possession of the appellant. In sum and substance, the prosecution has failed miserably to establish that the house in question is actually in possession of the appellant. Hence, the prosecution has failed to prove that the ganja recovered from that house was in conscious and exclusive possession of the appellant. In that view of the matter, the 2nd limb of charge cannot be said to have established by the prosecution beyond all reasonable doubts. In view of the aforesaid discussion, the appeal is allowed in part. The conviction of the accused under Section 20(b)(ii)(C) of the NDPS Act is hereby set aside. Instead, he is convicted for the offence under Section 20(b)(ii)(B) of the Act and sentenced to undergo R.I. for 8 years and pay fine of Rs. 15,000/-, in default to undergo R.I. for another one month. The period undergone directed to be set off under Section 428 of the Cr.P.C. The Criminal Appeal is disposed of. Send back the L.C.R. forthwith. Appeal partly allowed.