POONTHURUTHIL ABDULLA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE challenge herein is with regard to the conviction entered against the appellant, who was the accused in S.C. 34/97 of the Sessions Court which is the special court for trial of N.D.P.S. cases, Manjeri for the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotripic Substances Act on the allegation that the appellant was found in possession of 35 grams of ganja while sitting near the R.M.S. Office at the Railway platform, Tirur on 11.12.1996.

(2.) CHARGE was laid after the due investigation and upon trial the accused was found guilty of the offence under Section 20(b)(i) of the N.D.P.S. Act and sentenced on 16.7.1997 to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 10,000/- with a default sentence of simple imprisonment for six months.

(3.) DURING hearing, the learned counsel for the appellant submitted that the accused is entitled to get an acquittal, as the seizure as done in violation of the mandatory provisions contained in Sections 42(2) and 50 of the N.D.P.S. Act. It is pointed out that this is a case where PW-1, who is the Police Officer, admittedly had previous information about the availability of the accused at the particular spot and that there was failure on his part to record the same and to forward a copy thereof to his official superior. It is also argued that there is nothing to show that the accused was made aware of his rights to be searched in the presence of a Gazetted Officer or Magistrate as required under Section 50 of the N.D.P.S. Act and that he was also not asked about his option in the matter. In this regard, the absence of any mention with regard to the aforesaid compliance in the seizure mahazar prepared in the case is highlighted. Case law was relied on to contend that unless there is mention in the contemporaneous record regarding details of compliance with Section 50, oral evidence of the seizing official would be insufficient to show that there was compliance with Section 50 of the Act.