SATYAPALAN Vs. STATE OF KERALA AND ANR.

JUDGEMENT

(1.) THIS is an appeal against the conviction and sentence of the Appellant under Section 21 of the NDPS Act. P.W. -3 the Sub -Inspector of Vengara got secret information that the Appellant had been doing business in brown sugar at his house. He recorded this secret information in the general diary and sent a copy to the superior officer and thereafter proceeded to the place of incident. When P.W. -3 and Ors. reached near the house of the Appellant, he was found at the pathway leading to his house. On seeing P.W. -3 and Ors. the Appellant tried to escape but he was intercepted and told that his body is to be searched. He was told of his right under Section 50 of the NDPS Act. On search one packet was recovered from his pocket and it contained 2.5 gm. of brown sugar. The Special Judge, Vadakara found the Appellant guilty of the offence charged against him. The Appellant preferred an appeal before the High Court. The High Court dismissed the appeal and confirmed the conviction and sentence. We heard the Learned Counsel for the Appellant. The counsel for the Appellant contended that the information received by P.W. -3 was to the effect that the brown sugar was being sold in the house of the Appellant and as the prosecution failed to produce any evidence to show that the information allegedly sent by P.W. -3 to immediate superior was received by his superior officer and therefore there was violation of Section 42 of the NDPS Act. We are unable to accept the contention of the Appellant's counsel. Even though the information must have been to the effect that the Appellant was selling brown sugar at his house, he, in fact, was found at the pathway leading to his house and thereafter his body was searched. P.W. -3 had no occasion to search any building, conveyance or enclosed place so as to attract Section 42 of the Act.

(2.) ANOTHER contention raised by the Appellant's counsel is that there was no independent witness to prove search and seizure allegedly made by P.W. -3. One of the mazhar witness, turned hostile and did not support the prosecution. The learned Single Judge considered the appeal, thought it fit to give an opportunity to the prosecution to adduce further evidence and the matter was sent to the Special Judge to examine two more witnesses for the prosecution. Accordingly, P.W.s. 5 and 6 were examined and the record of evidence of these witnesses was sent back to the High Court for further decision and the evidence of this witness proved the recovery effected by P.W. -3. Another contention raised by the Appellant's counsel is that the Appellant was found in possession of small quantity and examination of two witnesses was conducted after the commencement of the amended Section 41 of the NDPS Act (Act 9 of 2001) and as the matter was not pending in appeal the Appellant was liable to be punished only for lesser sentence. The learned Single Judge held that the case was sent back to the Special Judge to examine two witnesses and appeal was still pending under Section 391(1) of the Code of Criminal Procedure in that view of the matter, the learned Single Judge held that the matter was pending in appeal in view of the proviso to Section 41 of the NDPS (Amendment) Act 2001 (Act 9 of 2001). The Appellant was not entitled to the benefit of Section 21(a) of the NDPS Act. The learned Single Judge was perfectly right in holding that amended Section 21 has no application as the appeal was still pending and in view of the proviso to Section 41 of the Act 9/2001. No other contention has been urged before us. The appeal is without any merit and the same is accordingly dismissed. The Appellant in this case was released on bail by this Court. The Appellant is directed to surrender to his bail bonds within 3 weeks failing which the Special Judge will take appropriate steps to arrest him to undergo the remaining period of sentence.