P P FATHIMA Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant was convicted for an offence punishable under 21 of the Narcotic Drugs and Psychotropic Substances Act as it sod then (the Act) by the Special Judge (NDPS Cases), Vadakara, and was sentenced undergo RI for 10 years, and a fine of Rs. 1 lac was imposed; in default the appellant was directed undergo further sentence of simple imprisonment for 3 months. Appellants appeal the High Court of Kerala at Ernakulam as against the judgment of said Special Court came be dismissed by the impugned judgment of the High Court. Hence, the appellant is in appeal against the said judgment.

(2.) Brief facts necessary for the disposal of this appeal are that on 3.8.1999 PW-1 Sub-Inspecr of Police of Police Station Nadakkavu received information that a middle-aged lady was selling brown sugar in Santhinagar Colony, Kannur behind the canteen of the Industrial Estate. On receipt of said information PW-1 sent a report his superior officers and proceeded the place mentioned in the information along with a lady constable. They found the appellant at the place as mentioned in the information. Then on the suspicion that the appellant was carrying contraband goods, PW-1 expressed his desire search the appellant. He informed her of her right under 50 of the Act be searched by a Gazetted Officer or a Magistrate which right the appellant allegedly waived. On such waiver, the lady constable PW-2 accompanying the search squad, searched the appellant and found in a purse carried by the appellant 750 mgs. of brown sugar packed in 4 packets. The said contraband was then weighed, sample taken and sealed in the presence of Panch witnesses. On an analysis of the sample sent the chemical examiner it was found that the contraband contained impure heroin which was known in the market as brown sugar. After completion of the investigation, a chargesheet was laid for offence punishable under 21 of the Act as stated above. The Trial court as well as the High Court have found the appellant guilty.

(3.) In this appeal, Mrs. Sansh Singh, learned counsel appearing as an amicus curiae, contended that as the law sod on the date of the seizure, sale of brown sugar was not an offence because such an offence was confined manufacture and preparation only. For the said purpose she relied upon the definition found in 2(11) of the Act and also submitted that the Schedule at that time did not include brown sugar as one of the contraband articles. She also alternatively contended that since the quantity of brown sugar allegedly, seized from the appellant was only 750 mgs, the same cannot he treated as a quantity kept for commercial use and could only be for personal consumption. She further contended that there is a discrepancy in the evidence of PWs. 1 and 2 in regard the seizure of the contraband as also in regard the factum of the contraband being sealed at the time of seizure. She further contended that independent witnesses have not supported the prosecution case.