JUDGMENT : (1) Whether the appellants could be treated as persons accused of an offence till the seizure of ganja involved in this case? (2) Whether the information allegedly obtained from the appellants, which allegedly led to the seizure of ganja, is admissible in evidence? 2. Appellants are A1 and A3 in Sessions Case (NDPS) No.14 of 2007 of the Special Court for NDPS Act Cases, Thodupuzha, who stand convicted under Section 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act, 1985') and each of whom sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.25,000/-, in default, to undergo rigorous imprisonment for 6 more months. The court below acquitted A2. 3. The prosecution case is that on 26.03.2007 at 8.30 p.m., the appellants were found keeping 18 Kgs of dried ganja beneath a tree near the Bodimettu check post, around 15 Kms away from Pooppara Junction. 4. The prosecution case discernible from the evidence of PW2 is that on 26.03.2007, at 8 p.m., while PW2, Sub Inspector of Police, Santhanpara was attending duties at the Police Station, he received an information that some persons were attempting to transport dried ganja by a Tata Sumo vehicle bearing registration No.KL-4-D-8007 through the Pooppara-Bodimettu road to Tamilnadu. He recorded the information in writing in the GD and intimated the fact to the Circle Inspector of Police. At about 8.05 p.m., PW2 along with the Police party proceeded by the Police jeep to trace out the Tata Sumo vehicle. They could see the said Tata Sumo vehicle near the patrol bunk at Pooppara and the same was being driven in high speed. Even though PW2 had allegedly given the signal to the vehicle to stop it, disregarding the signal, it sped away. PW2 and the Police party chased the vehicle and intercepted it. 5. A1 and A3 were the persons, who were present in the said vehicle. Smell of ganja was emanating from the vehicle. PW2 questioned A1 and A3 regarding the smell of ganja. It is alleged that from the versions of A1 and A3, it was revealed that 18 Kgs of ganja contained in a sack, was placed beneath a tree, near the Bodimettu check post. Smell of ganja was emanating from the vehicle. PW2 questioned A1 and A3 regarding the smell of ganja. It is alleged that from the versions of A1 and A3, it was revealed that 18 Kgs of ganja contained in a sack, was placed beneath a tree, near the Bodimettu check post. PW2 and Police party along with A1 and A3 allegedly proceeded to that place, and as pointed out by A1 and A3, 18 Kgs of ganja placed in 18 packets in a sack, which was kept beneath a tree, was recovered and seized through Exhibit-P8 mahazar. Thereafter, samples were drawn and the properties were packed and sealed. PW2 registered Crime No.84 of 2007 of the Santhanpara Police Station, through Exhibit-P9 First Information Report, on the basis of Exhibit-P9(a) suo motu report. The investigation was taken over by PW9 Circle Inspector of Police. He completed the investigation and filed the Final Report. 6. On the side of the prosecution, PW1 to PW9 were examined, Exhibits-P1 to P26 were marked and MO1 to MO56 were identified. Exhibits-C1 and C2 were also marked. On the side of the accused, Exhibit-D1 was marked. When examined under Section 313 Cr.P.C., the appellants denied the incriminating circumstances appeared in the evidence against them. The prosecution and the accused were heard. Since no grounds were made out to acquit the accused under Section 232 Cr.P.C., they were called upon to enter on their defence. No further defence evidence was adduced. Again, the prosecution and the accused were heard. The court below acquitted A2 and found A1 and A3 guilty of the offence punishable under Section 20(b)(ii)B of the NDPS Act, 1985, convicted them thereunder, and sentenced them as aforesaid. 7. Heard the learned counsel for the appellants and the learned Senior Public Prosecutor. 8. The learned counsel for the appellants has argued that there is no evidence in this case to enter a conviction and in fact, the court below ought to have acquitted the accused under Section 232 Cr.P.C. It has been argued that the prosecution case as such is not acceptable. This is a case, in which PW1, PW3 and PW6 have turned hostile to the prosecution. They have not supported the prosecution case. In fact, the only evidence available in the matter, regarding the incident, is the evidence of PW2. 9. This is a case, in which PW1, PW3 and PW6 have turned hostile to the prosecution. They have not supported the prosecution case. In fact, the only evidence available in the matter, regarding the incident, is the evidence of PW2. 9. Regarding the evidence of PW2, it has clearly come out that the evidence of PW2 relating to the incident is one revealed by A1 and A3. The same is hit by Section 25 of the Indian Evidence Act. It is allegedly based on a confession made by A1 and A3 to PW2, PW2 proceeded to the spot, wherein the ganja was allegedly kept. PW2 has no case that the ganja was traced out on the basis of a statement allegedly furnished by A1 or A3, as a result of an information comes within the purview of Section 27 of the Indian evidence Act. Such a statement has not been recorded and no such statement has been pressed into service as evidence. 10. According to PW2, A1 and A3 were placed under arrest only on the discovery of ganja in a sack placed beneath a tree. Therefore, till then, A1 and A3 could not be treated as persons, who were accused of any offence. In such case, even if an information was furnished by A1 or A3, which allegedly led to the seizure of ganja, it could not have been treated as an information passed on to PW2 by a person accused of an offence and therefore, such an information is not admissible in evidence under Section 27 of the Indian Evidence Act. 11. Matters being so, the so-called seizure of ganja, allegedly made by PW2, cannot be treated as an instance of a fact discovered in consequence of an information furnished by a person accused of an offence within the meaning of Section 27 of the Indian Evidence Act. Apart from that, such a confession allegedly made by A1 and A3 is clearly hit by Section 25 of the Indian Evidence Act. Such a confession cannot be proved. 12. Apart from that, such a confession allegedly made by A1 and A3 is clearly hit by Section 25 of the Indian Evidence Act. Such a confession cannot be proved. 12. From the evidence of PW8, who was an Excise Guard on duty at the Bodimettu check post., it has come out that by 4 p.m., on the date of incident, two - three persons came to the check post with the very same vehicle involved in this case, and they wanted to take the vehicle through the check post without any inspection. When the request was denied, they had allegedly returned from the check post with the vehicle. 13. At the same time, the evidence of PW9, in cross-examination, clearly reveals that the vehicle was present near the check post for a pretty long time. PW9 has stated that A1, A4 and A5, who had allegedly approached the check post with the vehicle, had returned from there by a bus. PW9 has admitted that the vehicle was left near the check post and it was lying idle there for a pretty long time. According to PW9, the said persons subsequently took away the vehicle and while they were returning with the vehicle, they placed the sack containing ganja beneath the tree. 14. In the evidence of PW9, in cross-examination, he has no explanation as to how A4 and A5 could be subsequently enlisted as CW7 and CW8 in the case. His explanation is that even though CW7 and CW8 were also present in the vehicle, they could not give any valid information regarding ganja and therefore, they were simply removed from the array of accused and they were enlisted as CW7 and CW8. From the evidence of PW2 and PW9, it is clearly discernible that the vehicle was taken into custody by the Police from the custody of the persons at the Bodimettu check post. It cannot be believed that the said vehicle, which reached the check post and was detained there was subsequently handed over to the accused themselves and they were permitted to take it away. 15. It is evident that the information was allegedly furnished to PW2 by the persons at the check post and consequently, the vehicle was taken into custody from the check post. 15. It is evident that the information was allegedly furnished to PW2 by the persons at the check post and consequently, the vehicle was taken into custody from the check post. PW2, PW8 and PW9 have admitted that there was a vigilance inquiry against them in connection with the seizure of ganja involved in this case. There is everything to suspect foul play in the matter, which had led to a vigilance inquiry against PW2, PW8 and PW9. There were suspected acts from the part of the said persons in dealing with the contraband involved in this case. 16. Whatever it is, the conclusion that can be arrived at is that the prosecution case has no legs to stand and they have failed to prove the prosecution case. There is no sufficient evidence or any evidence in this case to find A1 and A3 guilty of the offence punishable under Section 20(b)(ii)B of the NDPS Act, 1985. The conviction and sentence passed by the court below are therefore, liable to be set aside. In the result, this Crl. Appeal is allowed. The conviction and sentence passed by the court below are set aside and the appellants, who are A1 and A3 in the case, are acquitted.