SIDDIQUE Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is filed by the convict in Sessions Case No. 14 of 1998 on the file of the Court of the Special Judge (NDPS Act Cases), Vadakara. The appellant was found guilty under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act') and convicted and sentenced to undergone rigorous imprisonment for 10 years and a fine of Rs. 1 lakh with a default sentence of three months simple imprisonment.

(2.) THE allegation against the appellant is that he had possessed 7.5 grams of brown sugar. As per the prosecution, at about 6.10 p.m. on 21.3.1997, PW-2, the Sub-Inspector of Police, Koduvally Police Station got an information that Thoomakkal @ Siddique was selling brown sugar by standing at the Koduvally Market Road. The information received was recorded in the G.D. and he informed the matter to the Circle Inspector of Police over phone. Thereafter, he along with the police party reached market road and a Constable who accompanied him pointed out the accused who was standing at the High School Junction. After complying with the formalities the person of the accused was searched in the presence of the witnesses and a packet wrapped with newspaper was found, which was concealed in his underwear. There were 10 small paper packets and on examination of the same it was found as brown sugar. Out of 10 packets, two packets were separately packed and sealed. Mahazar was prepared in the presence of witnesses. The appellant was arrested and Crime No. 57 of 1997 under Section 21 of the NDPS Act was registered against him.

(3.) THE point for consideration is whether the appellant had possessed brown sugar as alleged by the prosecution. The main argument advanced by the learned counsel for the appellant is that this case was falsely foisted against the appellant due to personal vendetta. According to the appellant, there was some dispute between the appellant and one jewellery shop owner and PW-2 insisted him to sign in an agreement which he refused. Thereafter, this case was falsely foisted against him. It is further submitted that the mandatory provision of the NDPS Act was not complied with. Even as per the prosecution, a specific information has been received by the Sub-Inspector of Police. Under Section 42 of the NDPS Act, that Information has to be reduced into writing and the grounds of belief are to be recorded. A copy of the same is also to be sent forthwith to his official superior. That was not done in this case. So, for this sole reason, the appellant is entitled to an acquittal. It was further argued by him that there is no guarantee that the entire article is brown sugar. Out of the 10 packets, only two packets were sent for chemical analysis. The prosecution has no case that the contents of the entire packets were mixed up and out of the mixture, sample was taken. So it creates suspicion about the prosecution case. PW-1 who is alleged to be an attestor to the seizure mahazar is a stock witness of the police. He is a hired witness and his evidence is unreliable.