JUDGMENT : D. Dash, J. - The appellants having been convicted for offence under section 20(b)(ii)(c) of the N.D.P.S. Act, 1985 and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rupees One Lakh each, have preferred this appeal. 2. Case of the prosecution is that on 26.09.2008 the Sub-Inspector of Police attached to Bissamcuttack Police Station (P.W.3) with other police personnel were checking motor vehicles at Court Chhak, Bissamcuttack. It is stated that around 10 A.M. one Santro car came from Bissamcuttack side and was found proceeding towards Muniguda. When signal was given to the driver of the said vehicle to stop, he did not obey it. So the vehicle was chased by the police personnel and they ultimately become successful in intercepting the vehicle near Garadi Nala. The driver and another occupant are said to have been there in the vehicle en the relevant point of time when from inside the vehicle odor of ganja was emitting, The Sub-Inspector then could know that accused. Ram Subhaban Kuswaha was the driver and accused Rajib Lochan Tiwari was the other occupant of that Car. It is stated that they confessed before the police to have been transporting Ganja to Narayanpur for sale in gunny and jari bags loaded in the car. The Sub-Inspector then asked the accused persons to exercise their option of either being searched in presence of a Magistrate or a Gazetted Officer and when they opted the search to be conducted in presence of a Magistrate, the Executive Magistrate was finally requisitioned for the purpose, It is stated that the Executive Magistrate, independent witnesses and the weighman came to the spot. Therefore, carrying out all necessary formalities of offering personal search of P.W.3 and others when no objectionable article was found ham them search of car was made. It is stated that in all four gunny bags and six jar; bags containing Ganja were found to be there in the car and as such were unloaded. The weighment was then made and the total quantity of Ganja was found to be 149.2 kgs. The S.I. of Police collected the two parts of sample each containing 50 grams from the contents of each bags. Sample packets then were sealed with specimen impression of the P.W.1 was affixed on those. The weighment was then made and the total quantity of Ganja was found to be 149.2 kgs. The S.I. of Police collected the two parts of sample each containing 50 grams from the contents of each bags. Sample packets then were sealed with specimen impression of the P.W.1 was affixed on those. Thereafter the seizure of the contraband articles as also the sample packets and vehicle was made and seizure list was prepared. It is stated that on return to the police station P.W.3 placed the seized sample packets and bags containing the residue ganja and all other contemporaneous documents before the I.I.C. This led to the registration of the case. The I.I.C., then took up investigation from that stage onwards. On completion of investigation, charge-sheet having been filed against the appellants for commission of above offences, the case came to be tried by the learned Additional Sessions Judge, Rayagada. 3. From the side of the prosecution in total eight numbers of witnesses have been examined. Out of them P.Ws.1 and 2 have turned hostile and opted to remain mum while stating that their statements were recorded by the police officer that they had implicated the accused persons that they had implicated the accused persons though they had stated nothing implicating the accused persons. Prosecution has further proved the F.I.R., seizure list and other documents whereas the defence has examined none. So, here is a case where prosecution case rests on the evidence of official witnesses and it is stated that nothing surfaces to show that those persons were in enmical term with the accused persons bearing some grudge or other so as to even have the tendency to falsely implicate them. 4. The trial court on examination of evidence and upon their evaluation specifically negating the claim of the defence has accepted the case of the prosecution with regard to search, recovery and seizure of the contraband ganja of said quantity and thus having convicted the appellants for offence under sections 20(b)(ii)(c) of the N.D.P.S. Act, 1985 has sentenced them as aforesaid. 5. Learn d counsel for the appellants submits that here the evidence is wholly lacking with regard to the complicity of these appellants with transportation of ganja in the said car. 5. Learn d counsel for the appellants submits that here the evidence is wholly lacking with regard to the complicity of these appellants with transportation of ganja in the said car. He further submits that the trial court has held the appellants guilty having assumed from right from the beginning that the prosecution evidence as found from record has established the presence of these appellants in the car which is not at all a fact. He also submits regarding non-compliance of provisions of sections 42 and 50 of the Act, and according to him for the same, the view of the trial court has to be found to be vulnerable and the order of conviction can not stand in the eye of law. Learned counsel for the State contends that the trial court having ascertained from the evidence and upon their discussion has found that the prosecution has proved its case against the appellants beyond reasonable doubt and this Court should not disturb it picking up some minor defects therein. He also submits that the compliance of sections 42 and 50 of the Act are not necessary in the facts and circumstances of the case, when it is not the case of search of a person, when recovery and seizure have been held in a public place in the course of patrol duty and out of suspicion. 6. Before going to address the submission relating to non-compliance of the provision of law as stated above as the submission relating to complicity of the appellants to have not been proved goes to the root of the matter, this Court feels it proper to take a call on that first. As already stated, P.Ws. 1 and 2 have not supported the prosecution case. Now the star witness is P.W.3, the S.I. of Police who was the leader of the team 'who was there in the court-chhaka of Bissam-cuttack on patrol duty. The prosecution case is that the appellant Ram Subhaban Kuchhi @ Kuswaha was the driver and the other accused Rajib Lochan Tiwari @ Rajeev Lochan Tiwari 'was the occupant of the said car. P.W.3 has not identified these appellants during the trial when he deposed. It may be kept in mind that those accused persons facing trial have been in custody all through during the trial. P.W.3 has not identified these appellants during the trial when he deposed. It may be kept in mind that those accused persons facing trial have been in custody all through during the trial. He states that though they gave signal to stop the vehicle, the driver without paying any heed to the signal drove away the vehicle. They chased and found the two accused persons one to be driver in the driver seat and other one to be sitting. His evidence is silent on the score of identification of the appellants. He has not deposed as to which of the two then standing in the clock is Rajiv Lochan Tiwari and which of them is Ram Subhaban. It is stated that they confessed after detection. But not even a single word is spoken that they were the persons standing in the dock. Thereafter in his evidence, he has gone to state the name of the accused persons and implicate them by name. Thus, he has not identified these appellants in the court and his evidence is wholly lacking on this most important and vital aspect. 7. Next comes the evidence of P.W.4 who is the A.S.I. of Police. At this stage, it may be kept in mind that these accused persons are unknown to all the witnesses as per the very case of the prosecution. P.W.4 has directly stated the name of the accused persons, who was the driver and who was the occupant and that two accused persons confessed. During trial he has not identified the appellants saying as to whose name is what and who out of the two then in dock was driver and who was the occupant. Here the evidence of this witness if read, goes to show as if he knew the accused persons before, which is not at all the prosecution case and that cannot be accepted for a moment. Similarly P.W.5 has gone to state in the same way as has been stated by P.W.4 giving the names and stating them as the driver and the occupant. But his evidence is not on the score as to who out of these two appellants, who was the driver in the car and who was he other occupant indicating their names as Rama Subhana and Rajiv Lochan respectively. But his evidence is not on the score as to who out of these two appellants, who was the driver in the car and who was he other occupant indicating their names as Rama Subhana and Rajiv Lochan respectively. So far as other evidence is concerned, the Executive Magistrate, P.W.6 is of no use on this score. Let us examine the evidence of investigating Officer, P.W.8. If his entire evidence is given a reading, it is found that he has not stated anything else in the matter of complicity of the appellants. Thus here the prosecution has not laid any evidence in proving the beyond reasonable doubt that these applicants the trial were there in the car a driver and the occupant respectively and that they disclosed their names as given in the case. In that view of the matter thus even accepting for a moment that there was search, recovery and seizure of contraband ganja of said quantity as described from the car, there remains no evidence to establish nexus between the appellants, with those contraband ganja etc. which is the very first vital aspect required to be proved by the prosecution to establish the complicity of the appellants. In such state of affair in evidence, there arises noted to address other submissions advanced by the learned counsel for the appellants. Therefore, the findings of the trial court holding the appellants guilty of the offence for which they stood charged cannot be allowed to stand and thus is liable to be set aside. 8. In the result, the appeal stands allowed and the judgment of conviction and the order of sentence impugned in this appeal are hereby set aside. The appellants be set at liberty forthwith, if their detention is not required in connection with any other case. Final Result : Allowed