JUDGMENT : D.P. CHOUDHURY, J. The captioned two appeals having being preferred out of a common judgment dated 28.7.2007 of conviction and sentence passed by the learned Sessions Judge-cum-Special Judge, Nabarangpur in Criminal Trial No. 92 of 2007 under section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the N.D.P.S. Act) is hereby disposed of by this common judgment. FACTS : 2. The factual matrix leading to case of the prosecution is that on 24.5.2007 at about 11.30 P.M. Sri N.C. Barik, Officer-in-Charge (O.I.C.), Kodinga Police Station on receipt of reliable information, proceeded with his staff to village Panarguda. On 25.5.2007 at early morning said O.I.C. along with the staff made raid to a cashew field and found that the accused persons-appellants were possessing 21 packets and one attaché giving smell of Ganja. Due to paucity of time he gave information to his superior Officer, complying Section 42 of the N.D.P.S. Act for making search and seizure of the accused persons. In compliance to Section 50 of the N.D.P.S. Act the concerned O.I.C. asked the accused persons in writing as to whether they would be searched in presence of the Executive Magistrate or Gazetted Officer and the accused per sons gave consent to be searched in presence of the Executive Magistrate. So the O.I.C. sent for the Executive Magistrate by issuing requisition. After few hours the Executive Magistrate came. In presence of the Executive Magistrate, outside witnesses and official witnesses the concerned O.I.C. searched the accused persons-appellants, recovered 21 packets containing Ganja and also one attaché containing Ganja having total quantity of 283.500 K.Gs. of Ganja on measurement. Then the O.I.C. seized the Ganja with containers from the possession of the accused persons. The O.I.C. took samples of the seized Ganja, sealed the samples and rest of the Ganja as per the procedure under the N.D.P.S. Act. It is the further case of the prosecution that after the sample packets and rest of the packets being properly sealed as per the procedure, seizure list was prepared in presence of the Executive Magistrate and the witnesses. It is the further case of the prosecution that after the sample packets and rest of the packets being properly sealed as per the procedure, seizure list was prepared in presence of the Executive Magistrate and the witnesses. After search and seizure of the contraband Ganja was made, the concerned O.I.C. kept the sample of Ganja and the rest bulk of the seized Ganja in the Malkhana of the Police Station and lodged F.I.R. Then the C.I. of Police took over the investigation from the concerned O.I.C. The seized sample packets and bulk packets were produced before the court and the sample packets were sent for chemical analysis to the Regional Forensic Science Laboratory. Chemical Examiner on examination of samples, found same to be Ganja. After completion of necessary investigation the charge sheet under Section 20(b)(ii)(c) of the N.D.P.S. Act was submitted against the accused persons. 3. The plea of the accused persons is just denial of the conscious possession of Ganja contravening the provision of NDPS Act and Rules made thereunder and seizure of same from their possession. 4. The learned trial court after analyzing the evidence of 13 witnesses examined on behalf of the prosecution and on perusal of the documents filed by the prosecution came to the conclusion that the accused persons were in exclusive conscious possession of homogeneous Ganja without any authority and as such, convicted them under section 20(b)(ii)(c) of the N.D.P.S. Act and handed over the sentence to each of the appellants. SUBMISSIONS : 5. Learned counsel appearing for the appellants strenuously submitted that there are strong discrepancies between the evidence of witnesses as to the seizure of Ganja from the exclusive conscious possession of the accused persons and the learned trial court erred in law in appreciating the evidence of prosecution witnesses. He further submitted that the learned trial court erred in law by relying on the testimony of the official witlessness inasmuch as the official witnesses like the I.O. and the Officers who conducted the seizure being not independent witnesses should not have been relied upon. The evidence of independent witnesses, who have not supported the prosecution case, should have been taken into consideration while evaluating the evidence of official witnesses. 6. The evidence of independent witnesses, who have not supported the prosecution case, should have been taken into consideration while evaluating the evidence of official witnesses. 6. It is submitted by learned counsel for the appellants that the concerned O.I.C. has not complied Section 42 of the N.D.P.S. Act by not informing his superior Officer before searching the accused persons and necessary compliance of Section 50 of the N.D.P.S. Act has not been made in this case. Also the compliance of the provisions of Sections 55 and 57 of the N.D.P.S. Act has not been followed in this case. In support of his contentions he cited decisions reported in Santosh Patra & others v. State of Orissa, reported in 2015 (I) ILR-CUT-974, Bahadur Singh v. State of Madhya Pradesh and another, reported in 2002(I) OLR (SC) 565, Baikunthanath Sitha v. State of Orissa, reported in 2015(II) ILR-CUT-563, Paritosh Das v. State of Orissa, reported in 2015(I) ILR-CUT-337, Sarat Pradhan and anr. v. State of Orissa, reported in 2014(I) ILR-CUT-163 and Pitabas Pradhan v. State of Orissa, reported in 2002(I) OLR 379 . It is submitted to set aside judgment of conviction and sentence passed against the appellants. 7. Learned Addl. Government Advocate submitted that the evidence has been sufficiently analyzed by the learned trial court and there is huge quantity of Ganja seized from the possession of the appellants. So, he thoroughly supported the judgment of conviction and sentence passed by the learned trial court. POINT FOR DISCUSSION. 8. Now the moot question arises in theses appeals for determination as to whether the appellants were in joint conscious possession of 21 packets of Ganjas and one attach containing Ganja contravening the provisions of the N.D.P.S. Act and the Rules made thereunder. DISCUSSIONS : 9. Prosecution in order to prove its case beyond all reasonable doubt examined 13 witnesses. Out of them P.W.1 is the Grama Rakhi and part occurrence witness, P.Ws. DISCUSSIONS : 9. Prosecution in order to prove its case beyond all reasonable doubt examined 13 witnesses. Out of them P.W.1 is the Grama Rakhi and part occurrence witness, P.Ws. 2, 3 and 4 being outsiders are arrayed as seizure witnesses, P.W.5 is an Excise constable and witness to seizure, P.W.7 is one employee of the Police Department, P.W.8 is the A.S.I. of Police who accompanied the I.O., P.W.9 is another A.S.I. of Police and witness to the seizure, P.W.10 is an A.S.I. of Police and he has stated about the search and seizure made by P.W.13, P.W.11 is a programmer accompanying the police party, P.W.12 is the I.O. in this case who took up investigation of the case being handed over by P.W.13 and submitted charge sheet P.W.13 is the Officer-in-charge (O.I.C.) of police station who made the search, seizure & lodged F.I.R. 10. Before going to the facts proved in this case the submissions by the learned counsel for the appellants on law should be addressed. It is vehemently urged by learned counsel for the appellants that Section 42 of the Act has not been followed as compliance of Section 42 is mandatory and cannot be directory. In this context it is reported in the case of Mohan Lal v. State of Rajathan, reported in 2015(5) SCALE 330 , where Their Lordships of the Hon’ble Apex Court observed at paragraph-23:- “……..we may refer with profit to the Constitution Bench decision in Karnail Singh v. State of Haryana (2009) 8 SCC 539 , wherein the issue emerged for consideration is whether Section 42 of the NDPS Act is mandatory and failure to take down the information in writing and forthwith sending a report to his immediate officer superior would cause prejudice to the accused. The Court was required to reconcile the decisions in Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513 and Sajan Abraham v. State of Kerala (2001) 6 SCC 692 . The Constitution Bench explaining the position opined that Abdul Rashid (supra) did not require about literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham (supra) hold that requirement of Section 42(1) and 42(2) need not be fulfilled at all. The larger Bench summarized the effect of two decisions. The Constitution Bench explaining the position opined that Abdul Rashid (supra) did not require about literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham (supra) hold that requirement of Section 42(1) and 42(2) need not be fulfilled at all. The larger Bench summarized the effect of two decisions. The summation is reproduced below:- "(a) The officer on receiving the information of the nature referred to in sub-section (1) of Section 42 from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 4 2(1)and 42(2) in regard to writing down the information received and sending a copy thereof to the superior Officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 24. In Rajinder Singh v. State of Haryana (2011) 8 SCC 130 ), placing reliance on the Constitution Bench, it has been opined that total non-compliance with the provisions of sub-sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with satisfactory explanation for the delay can, however, be countenanced.” With due respect to the said decision, this Court is of the view that non-compliance of the provisions of section 42(1) and 42(2) of the Act is impermissible, but delayed compliance is acceptable. The aforesaid view of the Constitution Bench in the case of Karnail Singh v. State of Haryana, reported in (2009) 8 SCC 539 has been followed in the decision of Kisan Chand v. State of Haryana, reported in (2013) 2 SCC 502 where their Lordships observed as follows: “17. In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnail Singh (supra). In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnail Singh (supra). In that judgment, the Court in the very opening paragraph noticed that in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat [ (2000) 2 SCC 513 ], a three Judge Bench of the Court had held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate officer superior may cause prejudice to the accused. However, in the case of Sajan Abraham (supra), again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non compliance of the provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. But, if there is delay, whether it was undue or whether the same was explained or not, will be a question of fact in each case……. xx xxx xxx xxx 19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in the case of Karnail Singh (supra) carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds.” With due respect to the said decision it is found that the provisions of Section 42 is no doubt have to be complied, but delayed compliance with necessary explanation or can meet the requirements of Section 42 of the N.D.P.S. Act. 11. Now adverting to the case in hand, the evidence of P.W.13 who made search and seizure is relevant. Although the trial court has discussed the evidence of P.W.13 in all angles, but as the appellate Court, this Court has to find out whether the evidence discussed by the learned trial court is perverse and incongruous to accept the same. 11. Now adverting to the case in hand, the evidence of P.W.13 who made search and seizure is relevant. Although the trial court has discussed the evidence of P.W.13 in all angles, but as the appellate Court, this Court has to find out whether the evidence discussed by the learned trial court is perverse and incongruous to accept the same. It is clearly revealed from the evidence of P.W.13 that having got reliable information about presence of contraband Ganja in a cashew field near Raniguda, he made Station Entry No.570 dated 24.5.2007 and in anticipation that delay would be occurred for obtaining warrant for search and seizure of the contraband and in interregnum the accused and the contraband article may be removed, to save time he recorded his belief in the Station Diary Book and intimated his superior Officer C.I. Papadhandi regarding his information. He proved the Station Diary entry vide Ext.27 and letter to P.W.12 vide Ext.28. No departure is noticed in his cross-examination to the said fact of entering his belief in the station Diary Book and information to his superior Officer in compliance to Section 42 of the N.D.P.S. Act. P.W.12, who is a Senior Officer, has also corroborated the evidence of P.W.13 to have received information. Learned trial court has also discussed about compliance of Section 42 of the Act with correct approach and there is nothing to disturb his finding in this regard. Section 42 also speaks about power of entry, search, seizure and arrest without warrant or authorization and at the same time proviso to Sub-section (1) of Section 42 of the Act, which speaks as follows:- ”Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief.” With the aid of such provision and the decision discussed above, this Court is of the view that P.W.13 has proved the sufficient compliance of Section 42 of the N.D.P.S. Act. The argument of the learned counsel for the appellant in this regard is of no consequence. 12. The argument of the learned counsel for the appellant in this regard is of no consequence. 12. Learned counsel for the appellants has also urged about non-compliance of section 50 of the N.D.P.S. Act and according to him the mandatory provision of Section 50 if remained without compliance can be the basis for acquittal of the accused persons. Learned Addl. Government Advocate submitted that Section 50 of the N.D.P.S. Act is concerned with search of the person of the accused, but here in this case although Section 50 of N.D.P.S. Act has been followed by the I.O., but the facts remain that nothing was found with the person of the appellants as stated by the I.O. 13. It is reported in the case of State of Haryana v. Ranbir alias Rana, reported in 2006(5) SCC 167 , Their Lordships observed as follows:- “The question as regards applicability of Section 50of the Act need not detain us for long. We may notice that in view of conflict in the opinions of different benches as also difference of opinion between two judges of this Court in State of Himachal Pradesh v. Pawan Kumar [ (2004) 7 SCC 735 ] the question was referred to a larger Bench. A three-Judge Bench of this Court in State of Himachal Pradesh etc. v. Pawan Kumar [ (2005) 4 SCC 350 ] relying on or on the basis of a large number of decisions and in particular the decision of the Constitution Bench of this Court in State of Punjab v. Baldev Singh [ (1999) 6 SCC 172 ] clearly held that Section 50 of the Act would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article or container etc. which the accused at the relevant time was carrying.” With due respect to the aforesaid decision it appears Their Lordship followed the decision in State of Punjab v. Baldev Singh, reported in (1999) 6 SCC 172 , where the Constitution Bench of Hon’ble Apex Court have been pleased to observe in the following manner:- “….On the basis of the reasoning and discussion above, the following conclusions arise : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case. The above conclusions are not a summary of our judgment and have to be read and considered in the light of the entire discussion contained in the earlier part.” In the aforesaid decision of the Constitution Bench Hon’ble Apex Court made it clear that the non-compliance of Section 50 of the N.D.P.S. Act is illegal if there is personal search, but not otherwise. It is also revealed from the aforesaid decision as to how Section 50 of the N.D.P.S. Act can be complied. In Madan Lal And Anr v. State Of Himachal Pradesh, reported in 2003(7) SCC 465. Their Lordships observed by following the judgment of the Constitution Bench in Baldev Singh (supra) in the following manner:- “A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises.(See Kalema Tumba v. State of Maharashtra and Anr. (JT 1999 (8) SC 293), The State of Punjab v. Baldev Singh (JT 1999 (4) SC 595), Gurbax Singh v. State of Haryana ( 2001(3) SCC 28 ). The language of Section 50is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). The language of Section 50is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding noncompliance of Section 50 of the Act is also without any substance.” With due respect to the decision it is found that Section 50 of the N.D.P.S. Act is applicable only when there is search of person of the accused, but Section 50 of the N.D.P.S. Act is not applicable in respect of search of premises, vehicles, bags, articles or any other receptive articles. 14. Now adverting to the facts of the case it is clear from the judgment of the learned trial court read with the evidence of P.W.13 that while P.W.13 reached the cashew field he found the appellants were guarding 21 bags and one attaché containing Ganja as these bags and the attaché were giving smell of Ganja. In order to search the person of the accused persons, P.W.13 also offered them to give their option orally whet her they wanted to be searched by the Gazetted Officer or Executive Magistrate and on their consent the Executive Magistrate was called. It is also revealed from the evidence of P.W.13 that before the Executive Magistrate the person of the appellants were searched and nothing was found out from their person. This fact also finds corroboration from the evidence of P.Ws. 5, 10 and 11. 15. It is contended by the learned counsel for the appellants that the evidence of P.Ws. 5, 10, 11 and 13 not be taken into consideration as these witnesses are official witnesses and police officers. It is settled in law that the evidence of official witnesses should not be rejected merely because they are official witnesses or Police Officers, but at the same time their evidence requires close scrutiny and if they are found above reproach, they can be relied upon as per Section 3 of the Evidence Act. So the contention of the learned counsel for the appellants is not acceptable to discard the evidence of P.Ws. 5, 10, 11 and 13 to find out the search of the person of the appellants. So the contention of the learned counsel for the appellants is not acceptable to discard the evidence of P.Ws. 5, 10, 11 and 13 to find out the search of the person of the appellants. At the same time the evidence of P.W.13 read the evidence of these witnesses make it clear that 21 bags and one attache containing Ganja were present on the cashew field where the person of accused persons were searched. Since Section 50 is applicable to search the person of the accused and not to the packets and attache, the fact that nothing was seized from the person of the accused on search, more analysis about section 50 of the N.D.P.S. Act is not necessary in this case. So the argument of learned counsel for the appellants as to non-compliance of section 50 is fatal to the prosecution case is indefensible. 16. Even if compliance of Section 50 so far as search of the person of the appellants is concerned, the evidence of P.W.13 is very clear that he has asked to exercise the option by the appellants whether to be searched by the Executive Magistrate or the Gazetted Officer and they have given their option to be searched by the Executive Magistrate. The same fact finds place in Ext.9. There is no fruitful cross-examination to this witness to discard such testimony of P.W.13. The said evidence of P.W.13 also finds corroboration from the evidence of P.W.5. Of course asking the appellants to exercise their option is not corroborated by the independent witnesses P.Ws.2 to 4 who were cross-examined by the prosecution and their statements have been well confronted to the I.O. The signature of P.W s.1 to 4 do not find place in Ext.9/1, for which much importance cannot be given to these witnesses to show their presence at the time of compliance of Section 50 and lending corroboration to the evidence of P.W.13. However, the evidence of P.W.5 coupled with the evidence of P.W.13 have been rightly analysed by the learned trial court to prove the compliance of Section 50(1) of the N.D.P.S. Act so far as the search of the person of the appellants is concerned. Thus, the contention of the learned counsel for the appellants in this regard is equally remained untenable. 17. Thus, the contention of the learned counsel for the appellants in this regard is equally remained untenable. 17. It is revealed from the evidence of P.W.13 that after reaching the spot he found the appellants-accused per sons were on the spot where 21 packets and one attache giving smell of Ganja were there. After searching the person of the appellants he took step to open the 22 containers i.e. 21 packets and one attache in presence of the Executive Magistrate vide Exts. A to V and all the packets including the attache having different quantity of Ganja being weighed became total of 283 Kgs. 500 grams. Thereafter he took the sample from each of the packets and again packed the same, sealed the same in compliance with the provisions of the Act and the Rules. Thereafter he has also stated to have put his brass seal on wax on sample packets and the hulk packets. He stated to have seized all the bulk packets including the sample packets. He produced the bulk packets vide M.Os. I to XXII and sample packets vide M.Os. XXIII to XLIV. He proved the seizure list vide Ext.1/6 in respect of seized bulk packets and sample packets and his signature was eXt.1/7. He stated to have given the brass seal in zima of the Executive Magistrate Rajendra Majhi who executed zimanama vide Ext.30. He seized one motorcycle kept near the spot vide Ext.8. After seizure he drew up plain paper F.I.R. vide Ext.31. Then he returned with the seized properties and accused persons to the Police station at 10.00 P.M. He registered the F.I.R. at 11.45 P.M. and kept all the articles in the Police Station Malkhana with the key under his custody. On the same day of 25.5.2007 at 11.45 P.M. P.W.12 took charge of the investigation from him. He proved the chemical examination report vide Ext.32 which prove that the sample packets contain the cannabis. It is only revealed from the cross-examination that although they have given their person searched of himself and the witness before the Executive Magistrate, but no such record was prepared and only he has prepared the search memo in respect of personal search of the accused persons. When Section 50 does not attract in view of the fact that nothing was found from the person of the accused persons on search, the said cross-examination assumes no importance. When Section 50 does not attract in view of the fact that nothing was found from the person of the accused persons on search, the said cross-examination assumes no importance. Rather it is revealed from the cross-examination that on the next day of search and seizure the seized contraband articles were sent to the court Malkhana, but as it was Sunday they were brought back. Corroborating the evidence of P.W.12 he stated that Command Certificate, P.S. Malkhana Register and despatch Registers were all seized by the I.O. In the strenuous cross-examination the evidence of P.W.13 could not be well shaken. Learned trial court has correctly observed that even if P.W. 13 is an official witness, there is nothing to doubt his testimony. Be that as it may, the evidence of P.W.13 is clear, consistent and cogent to show about compliance of Section 42 of the N.D.P.S. Act and search of 21 packets and an attache containing Ganja from the place where the accused persons had kept same, seal of same as per procedure and report of the chemical examiner. 18. The evidence of P.Ws. 1, 5, 10 and 11 also lend corroboration to the evidence of P.W.13 as to search of the packets and weighment of the contents of the packets, drawing up sample from the packets and seizure of the same. It is revealed from the cross-examination of P.W.5 that he could not say how much Ganja was recovered from each packet. He is a witness to the manner of search and seizure and when there is huge quantity of Ganja seized and he was examined after three years, he is not expected to remember about the quantity of Ganja. So the cross-examination made to P.W.5 does not discredit his testimony. There is nothing found from the cross-examination of P.W.10 to discard his evidence. P.W.11 has proved his signature in the seizure list. P.W.1 also stated to have weighed the seized Ganja. 19. On going through the evidence of P.Ws.2 to 4 it appears that they were witnesses to the seizure and they proved their signatures thereon, but did not corroborate the evidence of P.W.13 to show that in their presence seizure of the contraband article has been made. They have been cross-examined by the prosecution. 19. On going through the evidence of P.Ws.2 to 4 it appears that they were witnesses to the seizure and they proved their signatures thereon, but did not corroborate the evidence of P.W.13 to show that in their presence seizure of the contraband article has been made. They have been cross-examined by the prosecution. Their evidence has been confronted to the I.O. As such it is found that they have suppressed the factum of seizure by rescinding from their earlier statement. They have not given explanation as to how their signatures appeared on the seizure list. Even if they were declared hostile, their evidence did neither support the case of prosecution nor discarded other evidence adduced by the prosecution inasmuch as they have not explained under what circumstances their signatures appeared on the seizure list or why they signed in the seizure list. It is quite natural that outsiders having remained in the same village of accused persons want to support the accused persons being co-villagers for various reasons although they are witnesses to the seizure, in such circumstances their evidence do not count much. Be that as it may, in the instant case without any support from P.Ws.2 to 4, yet the evidence of P.W.13 being well corroborated by other prosecution witnesses as stated above clearly proved the search and seizure of the packets and the attache containing total 283 Kgs. 500 grams of Ganja from the spot where the accused persons were traced out. 20. P.W.12 who is the I.O. has stated that after taking up the investigation, he visited the spot, examined the accused persons and the wheighman. He stated to have examined the witnesses and sent the seized materials to the Special Judge-cum-Sessions Judge, Koraput. He made prayer to the learned S.D.J.M. for sending the samples to the Regional Forensic Laboratory, Berhampur. On going through his evidence it appears that he has taken all steps of investigation including compliance of Sections 55 and 57 of the N.D.P.S. Act because he has stated to have sent the detailed report on 27.5.2007 to the Superintendent of Police, Nabarangpur vide Kodinga P.S. Despatch No.897 dated 27.5.2007 through Constable Sri S.D. Ganda. He proved the Command Certificate vide Ext.19. There is no any fruitful cross-examination to shake his testimony. He proved the Command Certificate vide Ext.19. There is no any fruitful cross-examination to shake his testimony. So there is no disagreement with the finding of the learned trial court that Sections 55 and 57 have been complied with. On the other hand learned counsel for the appellants relied on the case of Santosh Patra & ors. V. State of Orissa, reported in 2015(I) ILR-CUT-974, where His Lordship observed that the brass seal and sample packets being not produced in court, the judgment of conviction and sentence by the trial court suffers due non-compliance of Sections 55 and 57 of the Act. He also submitted that in the case of Baikunthanath Sitha v. State of Orissa, reported in 2015(II) ILR-CUT-563 where His Lordship observed that seizure of Ganja from the accused becomes doubtful when the quantity of sample sent for chemical examination was discrepant, but in the present case facts are different. Thus, the above decisions cited by the learned counsel for the appellants do not apply to the facts and circumstances of the present case. 21. From the aforesaid proved facts it is assimilated that no contraband was found with the person of the accused per sons, but the 21 packets (bags) and the attache containing total 283 Kgs. 500 grams of Ganja were kept on the spot where the accused persons were caught. Now the question arises whether the Ganja along with the containers have been seized from their exclusive conscious possession. In the case of Mohan Lal (supra) Their Lordships have been pleased to observe as to the meaning of exclusive conscious possession as follows:- “7. On a perusal of the aforesaid provision, the possession of opium is an offence and the sentence is imprisonment for a term which may extend to one year or with fine which may extend to Rs.1,000/-or both. Section 18 of the NDPS Act provides for punishment for contravention in relation to opium poppy and opium. The provision as it stood at the relevant time read as follows: "18. Section 18 of the NDPS Act provides for punishment for contravention in relation to opium poppy and opium. The provision as it stood at the relevant time read as follows: "18. Punishment for contravention in relation to opium poppy and opium.-Whoever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty-years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees : Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." 8. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word possession. The classical theory of English law on the term "possession" is fundamentally dominated by Savignyian "corpus" and "animus" doctrine. Distinction has also been made in "possession in fact" and "possession in law" and sometimes between "corporeal possession" and "possession of right" which is called "incorporeal possession". Thus, there is a degree of flexibility in the use of the said term and that is why the word possession can be usefully defined and understood with reference to the contextual purpose for the said expression. The word possession may have one meaning in one connection and another meaning in another. 9. The term "possession" consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. One of the definitions of possession given in Black's Law dictionary is as follows: "Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel (219 Kan. 616, 549 P.2d 568, 569). One of the definitions of possession given in Black's Law dictionary is as follows: "Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel (219 Kan. 616, 549 P.2d 568, 569). The detention and control or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint." In the said dictionary, the term "possess" in the context of narcotic drug law means:- "Term "possess." Under narcotic drug laws, means actual control, care and management of the drug. Collini v. State (Tex.Cr.App.487 S.W.2d 132, 135). Defendant 'possesses' controlled substance when defendant knows of substance's presence, substance is immediately accessible, and defendant exercises "dominion or control" over substance. State v. Hornaday (105 Wash. 2d 120, 713 p.2d 71, 74)." And again "Possession as necessary for conviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual, U.S. v. Craig (C.A. Tenn, 522 F.2d 29, 31); as well as joint or exclusive, Garvey v. State (176 Ga. App, 268, 335 S.E.2d 640, 647). The defendants must have had dominion and control over the contraband with knowledge of its presence and character. U.S, v. Morando-Alvarez (C.A. Ariz, 520 F.2d 882, 884). App, 268, 335 S.E.2d 640, 647). The defendants must have had dominion and control over the contraband with knowledge of its presence and character. U.S, v. Morando-Alvarez (C.A. Ariz, 520 F.2d 882, 884). Possession, as an element of offense of stolen goods, is not limited to actual manual control upon or about the person, but extends to things under one's power and dominion. McConnell v. State (48 Ala.App. 523, 266 So. 2d 328, 333). Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. U.S. v. Ellison (C.A. Cal., 469 F.2d 413, 415). To constitute "possession" of a concealable weapon under statue proscribing possession of a concealable weapon by a felon, it is sufficient that defendant have constructive possession and immediate access to the weapon. State v. Kelley (12 Or. APP. 496 507 P. 2d 837, 837).” 10. In Stroud's dictionary, the term possession has been defined as follows: "Possession" (Drugs (Prevention of Misuse) Act 1964 (c. 64), s.1 (1)). A person does not lose "possession" of an article which is mislaid or thought erroneously to have been destroyed or disposed of, if, in fact, it remains in his care and control (R. v. Buswell) [1972] 1 W.L.R. 64. 11. Dr. Harris, in his essay titled "The Concept of Possession in English Law[16]" while discussing the various rules relating to possession has stated that "possession" is a functional and relative concept, which gives the Judges some discretion in applying abstract rule to a concrete set of facts. The learned author has suggested certain factors which have been held to be relevant to conclude whether a person has acquired possession for the purposes of a particular rule of law. Some of the factors enlisted by him are; (a) degree of physical control exercised by person over a thing, (b) knowledge of the person claiming possessory rights over a thing, about the attributes and qualities of the thing, (c) the persons' intention in regard to the thing, that is, 'animus possession is' and 'animus domini', xxx xxx xxx 12. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. Coming to the context of Section 18 of the NDPS Act, it would have a reference to the concept of conscious possession. The legislature while enacting the said law was absolutely aware of the said element and that the word "possession" refers to a mental state as is noticeable from the language employed in Section 35 of the NDPS Act. The said provision reads as follows:- "35. Presumption of culpable mental state. - (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation - In this section "culpable mental state" includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." On a perusal of the aforesaid provision, it is plain as day that it includes knowledge of a fact. That apart, Section 35 raises a presumption as to knowledge and culpable mental state from the possession of illicit articles. The expression "possess or possessed" is often used in connection with statutory offences of being in possession of prohibited drugs and contraband substances. Conscious or mental state of possession is necessary and that is the reason for enacting Section 35of the NDPS Act. 13. In Noor Aga v. State of Punjab and Anr. (2008) 16 SCC 417 , the Court noted Section 35 of the NDPS Act which provides for presumption of culpable mental state and further noted that it also provides that the accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. The Court also referred to Section 54 of the NDPS Act which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily. The Court also referred to Section 54 of the NDPS Act which places the burden to prove on the accused as regards possession of the contraband articles on account of the same satisfactorily. Dealing with the constitutional validity of Section 35 and 54 of the NDPS Act, the Court ruled thus:- "The provisions of Section 35 of the Act as also Section 54 thereof, in view of the decisions of this Court, therefore, cannot be said to be ex facie unconstitutional. We would, however, keeping in view the principles noticed hereinbefore, examine the effect thereof vis-a-vis the question as to whether the prosecution has been able to discharge its burden hereinafter." And thereafter proceeded to state that:- "58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt." xxx xxx xxx 15. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt." xxx xxx xxx 15. Having noted the approach in the aforesaid two cases, we may take note of the decision in Dharampal Singh v. State of Punjab (2010)9 SCC 608 ), when the Court was referring to the expression "possession" in the context of Section 18 of the NDPS Act. In the said case opium was found in the dicky of the car when the appellant was driving himself and the contention was canvassed that the said act would not establish conscious possession. In support of the said submission, reliance was placed on Avtar Singh v. State of Punjab (2002)7 SCC 419 and Sorabkhan Gandhkhan Pathan v. State of Gujarat (2004)13 SCC 608 . xxx xxx xxx 15. From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to satisfactorily account for the possession of opium. 16. Once possession is established the court can presume that the accused had culpable mental state and have committed the offence. In somewhat similar facts this Court had the occasion to consider this question in Madan Lal v. State of H.P. (2003)7 SCC 465, wherein it has been held as follows: (SCC p. 472, paras 26-27) "26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act."" 22. With due respect to the aforesaid decision it is clear that possession must be a conscious possession and such conscious possession has to be construed with the two elements i.e. corpus and animus. Although aforesaid decision relates to Section 18 of the N.D.P.S. Act, but same principle applies to Section 20 of N.D.P.S. Act as both the Sections refer to Conscious Possession of Accused. It is also clear from the aforesaid decision that having knowledge is equally important to infer physical control over such property. It is also clear from the aforesaid decision that once the possession is established, Section 35 of the N.D.P.S. Act brings presumption as to presence of culpable state of mind of the accused. Similarly, presumption of guilt may be drawn under Section 54 of the N.D.P.S. Act once the possession is established. 23. Now adverting to the present case it is stated that the appellants were found with 21 packets and one attache containing Ganja in the cashew filed and there was no other person present near the contraband articles except the appellants. It is obvious when appellants were only present near the contraband articles, there can be no scintilla of doubt that they were in joint conscious possession of the seized contraband articles. As such, relying upon the aforesaid decision the presumption under Sections 35 and 54 of the N.D.P.S. Act can be safely drawn against culpability of the appellants. On the other hand, the appellants had got culpable mental state for possessing such Ganja and they are presumed to have committed the offence under Section 20 (b)(ii)(c) of the Act. Now the onus shifts to the appellants to rebut the presumption. They have to prove their innocence or to prove that the contraband Ganja was not within their knowledge and they have no intention to possess the same contravening the provisions of the N.D.P.S. Act. Now the onus shifts to the appellants to rebut the presumption. They have to prove their innocence or to prove that the contraband Ganja was not within their knowledge and they have no intention to possess the same contravening the provisions of the N.D.P.S. Act. But in the present case neither any appellant adduced evidence to prove innocence nor proved their plea of denial to the accusation by preponderance of probability through cross-examination to the P.Ws. inasmuch as the accused persons can prove their case either by adducing evidence in defence or by eliciting their plea through cross-examination to the prosecution witnesses as per settled law. It is therefore, safely can be concluded that the appellants-accused persons were in exclusive conscious possession of 283 K.Gs. 500 grams of Ganja contravening the provisions of the N.D.P.S. Act and the Rules. I agree with the conclusion of the learned trial court that the appellants were in illegal possession of the contraband articles contravening the provisions of the N.D.P.S. Act and the Rules and rightly conviction under Section 20(b)(ii)(c) of the N.D.P.S. Act has been recorded by the learned trial court. The decisions citied by the learned counsel for the appellants to disprove the case of the prosecution do not apply to the facts and circumstances of the case, for which they are not accepted. Point for determination is answered accordingly. CONCLUSION. 24. In view of the aforesaid observation there is irresistible conclusion to arrive that the appellants are found guilty under Section 20(1)(b)(ii)(c) of the N.D.P.S. Act and the order of conviction passed by the learned trial court is hereby affirmed. Each of the appellants has been sentenced by the learned trial court to undergo R.I. for 15 years and to pay fine of Rs.1,00,000/-each in default to undergo R.I. for three years. The learned counsel for the appellants submitted that taking the fact and circumstances of the case including the nature of offence and the fact that the appellants are members of the tribal community, lenient view should be taken to award punishment. 25. There is no any sentencing Rule framed so far in India, but it is well settled by a catena of decisions of the Hon’ble Apex Court that punishment should be proportionate to the extent of crime committed by the convict. 25. There is no any sentencing Rule framed so far in India, but it is well settled by a catena of decisions of the Hon’ble Apex Court that punishment should be proportionate to the extent of crime committed by the convict. It is also settled law that while chalking out the quantum of sentence the Court must strike balance between aggravating circumstances and mitigating circumstances. In the instant case the aggravating circumstances are many because huge quantity of Ganja was seized and the appellants were in possession of the seized Ganja in open cashew-nut field exposing the same to the outsiders. At the same time the terrorism in India is primarily enhanced due to smuggling of drugs inasmuch as huge amount of money earned by smuggling of drugs are utilized by the extremist to create terrorism. The mitigating circumstances are that the appellants belong to tribal community and the case is of the year 2007 which is nine years old by now. On comparison between mitigating circumstances and aggravating circumstances, aggravating circumstances are more menace for society. So considering all these aspects it is just and proper to award to each of the appellants to undergo R.I. for 12 years and to pay a fine of Rs.1,00,000/-each in default to undergo R.I. for three years more. The period undergone if any, be set off from the imprisonment awarded. Thus, the judgment of conviction against appellants passed by the learned trial court is confirmed and sentence passed by the learned trial court is modified to the extent as observed above. The Criminal Appeals are dismissed accordingly. The L.C.R. be returned.