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2. The prosecution case, in brief, is that P.I. Mr. Gaware was attached to Muktainagar Police Station on May 2, 2005. He received secret information on mobile phone to the effect that appellant No. 2 Gopal was transporting bundles of ganja in a truck vehicle bearing registration No. MP-09/KD-0323. That truck vehicle was reportedly coming from Khamgaon and was to go to Barhanpur through Muktainagar. In pursuance to the secret information, PI Mr. Gaware organized for raid. He called two panchas by deputing Police Constable Bhosale. He also called a photographer, weighing scale, weights and articles required for preparing sample packets. He disclosed intention to carry out the raid to the panchas and other members of the police party. They went to a place on the road, situated near a hotel styled as "Hotel Shree" and waited there. At about 2243 hours, they noticed the truck vehicle which was coming from Muktainagar township. The truck vehicle was intercepted. Appellant No. 1 Premnarayan was found driving the truck vehicle whereas appellant No. 2 Gopal was found sitting in the cabin of the driver. Both of them were informed about intention to carry out search of the truck vehicle. They were asked as to whether they wanted to search persons of the members of the raiding party. They declined to exercise such option. The search of the truck vehicle revealed load of five (5) bundles (gunny bags), which contained ganja. The ganja was weighed. In all 150 kilograms (kgs.) ganja was found in the five bundles. Thereafter, 100 grams of ganja was collected separately at two places and two separate sample packets were prepared. The sample packets were affixed with paper labels signed by panchas and were sealed at the spot. The photographer clicked photographs of the event from the commencement of the search till the seizure was effected. A Panchanama was drawn and all the five bundles were seized. The sample packets were lateron produced before the Muddemal Clerk. A report was lodged by PI Mr. Gaware and, therefore, offence was registered against both the appellants. One of the sample packets was forwarded to the office of the Assistant Chemical Analyser, Aurangabad, for analysis. The report of Assistant Chemical Analyser revealed that the sample comprised of flowering, tops, leaves and stalks of ganja. Both the appellants were chargesheeted for the offence of having illegal possession of contraband ganja without any permit or licence.

7. In the above background, I shall proceed to examine the prosecution evidence. The testimony of PW1 Gajanan reveals that he attended the seizure panchanama (Exh-13). His version reveals that the truck vehicle was intercepted near "Hotel Shree" in the relevant night. His version shows that five gunny bags containing ganja were found in the goods truck. They were unloaded. The ganja was weighed with help of scale and weights. He corroborates recitals of the seizure panchanama (Exh-13). According to him, appellant No. 1 was driver of the truck vehicle whereas appellant No. 2 was sitting by side of the driver in the cabin. His cross-examination reveals that about 13 kilometres away from Muktainagar, there is interjection and the High Way road coming from Khamgaon goes towards Barhanpur. So also, it has come in the evidence of PW5 P.I. Mr. Gaware that for going to Barhanpur, a vehicle is not required to pass through Muktainagar and it can be directly driven by the High Way between Khamgaon and Barhanpur. He admits, unequivocally, that there is a police chowki on the High Way, opposite to a Sugar Factory, and there are police officials on duty at the chowki. He admits thus:

It is true to say that from that police chowki itself, there is a main road approaching towards Barhanpur (M.P.) and it is a first approach way to M.P. It is true to say that if a person wants to go to Barhanpur from Khamgaon, he need not come to Muktainagar, unless he has some work at Muktainagar.
There is absolutely nothing on record to show that the appellants had any tangible reason to drive the truck vehicle through Muktainagar though the direct road (High Way) was available and they could have by-passed to travel through Muktainagar. The prosecution story goes further as if the appellants had some reason to enter the township of Muktainagar and immediately, without stopping anywhere, cross the locality and reach near the hotel. It is admitted by PW Gajanan that another panch is his friend since childhood. He also admits that he signed the seizure panchanama as per instructions of PW P.I. Mr. Gaware. He was knowing PI Mr. Gaware since the time of the posting of the later at Muktainagar Police Station. He was also knowing Police Constable Bhosale since about 3-4 years. In other words, he is well acquainted with the police.

8. So far as question of "conscious possession" is concerned, there is oral evidence of PW2 Baburao and PW5 PI Mr. Gaware. Significantly, PW2 Baburao Bhosale, Police Constable No. 2996, called for panchas and the photographer. His version reveals that inquiry was made with the driver (appellant No. 1 ) and also the passenger i.e. appellant No. 2 about possession. Both of them replied that there were some sheets loaded in the truck vehicle. So, the information was verified. It has come on record that the truck vehicle was loaded with tin-sheets. Thus, at the first blush, the appellants explained that the truck was carrying tin-sheets. The gunny bags were found during the course of search. The version of PW PI Mr. Gaware would show that the panchanama was drawn after the ganja was weighed and sample packets were prepared. He corroborates recitals of the seizure panchanama (Exh-13). His version shows that he lodged the FIR (Exh-39) at Muktainagar Police Station. He gave the sample packets and the muddemal in the custody of Muddemal Clerk ASI Choudhari. He forwarded the sample packets to the office of Chemical Analyser, Aurangabad alongwith a carrier and forwarding letter (Exh-40). The forwarding letter shows that one of the sample packets was sent in sealed condition. He also narrated as to how the report was forwarded to the superior officer. He admits that personal search of the appellants was not taken. His version reveals that the muddemal articles were not produced before the court during course of the trial. He states that he made due inquiry as to from where the truck was loaded. He did not record statement of the owner of the truck vehicle. Unless it is clear from the evidence that the appellants or either of them participated in the act of the loading of the bundles in the truck vehicle, it is difficult to say that they were in "conscious possession" of those bundles.