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2. We have heard Mr. Somnath Padhan, learned counsel for the appellant and Mr. Sourav Roy, learned Deputy AG for the respondent State.

3. The case of the prosecution was that on 31.05.2014, the Station House Officer (SHO for short) of Chakarbhata Police Station received a secret information that the appellant and his friend Reena Das, were carrying ganja in the dickey of a car bearing registration no.CG­04HA­4850 and were travelling from Raipur to Pendra Road; that the SHO recorded this information in Rojnamcha Sanha, prepared Mukhbir Suchana, forwarded the said information to the higher officer, proceeded to the spot, stopped the car, served a notice under Section 50 of the Act, conducted a search and found 47.370 Kgs. of ganja kept in three bags in the dickey of the car; that after weighing the contraband and preparing Panchnama, the SHO collected samples from each of the three bags, sent them to Forensic Science Laboratory (‘FSL’ for short) and after receipt of the Report, filed a charge­sheet against the appellant as well as his friend Reena Das for an offence punishable under Section 20(b) of the Act.

19. Let us see in the case on hand what PW­7 stated about the manner in which the witnesses were roped in. The relevant portion of the testimony (Chief Examination) of PW­7, where a reference is made to independent witnesses, is extracted as follows:

“(5) I got the information on 31.05.2014 at 16.50 Hrs. from informant that the one silver colour Hyundai Verna Car having registration no.C.G.­04­HA­4850 is silver, in which, Sanjeet Kumar Singh @ Munna Singh resident of Kabir Nagar, Raipur and his lady friend namely Reena Das @ Manali Das resident of Kabir Nagar, Raipur have left towards Pendra road from Raipur carrying huge quantity of cannabis in the truck (Dikki) of Car for the purpose of sale, who would go via Pandidiha bypass Road. I lodge the above report at the serial no.1283 of Station Diary register maintained at Police Station. Today, I brought the Daily Register with me. The Serial No.1283 entered in the Daily Register is Exhibit P­12 and its certified copy is Exhibit P­12 “C: I prepared the memo (Panchnama) of the information of informant in the presences of witnesses Virender Kumar Sahu and Baldev Singh Rajput. The memo (Panchnama) of the information of informant is Exhibit P­13 and I had my signatures on A to A parts. I served notice for the purpose of summoning to the witnesses. The notice given to the witness Sunil Maldhani which is Exhibit C­14, where my signatures on B to B parts and the notice sent to the witness Firturam Banware for  appearing/presenting at the time of proceedings is Exhibit C­1, on which, my signatures is on B to B parts.

30. Exhibit C­2 is the notice served on the appellant herein (A­1) under Section 50 of the Act. The time shown therein is 18:00 hrs. This notice requires the appellant to indicate whether he would like to be searched in the presence of Magistrate or Gazetted Officer. It is also stated in the notice that the contents thereof were read over in the presence of witnesses. Exhibit C­3 is the consent Panchnama of the appellant agreeing to be searched by the police officer. This Panchnama contains the names of Sunil Malghani and Firuturam Banware (CWs 1 and 2). Even the search Panchnama of the accused marked as Exhibit C­4 refers to the presence of CWs 1 and 2 at the time of search.

33. Right from the beginning, the co­accused Reena Das (A­2) was implicated at every stage. Admittedly, the information received by PW­7 at 16:50 hrs. on 31.05.2014 contained a reference to the appellant as well as the co­accused Reena Das. But for some strange reason, PW­7 chose to serve a notice under Section 50 of the Act only on the appellant and not on the co­accused. PW­7 also omitted deliberately or otherwise, to record, (i) the consent Panchnama of co­accused; (ii) the search Panchnama of the co­ accused; and (iii) the recovery Panchnama in relation to the co­ accused. This led to the Special Court acquitting the co­accused. It is quite strange that, (i) the information received by PW­7, (ii) the FIR; and (iii) the charge­sheet implicated the co­accused, but the prosecution accepted the finding of the Special Court that there could have been no recovery from the co­accused despite the fact that she was also travelling in the same car. 33­A. It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. The moment a doubt is cast upon the most fundamental aspect, namely the search and seizure, the appellant, in our considered opinion will also be entitled to the same benefit as given by the Special Court to the co­accused.