ANILKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant stands convicted for the offence under Section 17 of the Narcotic Drugs and Psychotropic Substances Act , 1985 and is sentenced to undergo rigorous imprisonment for five years and six months and to pay a fine of Rs.50,000, with a default sentence of one year. The prosecution allegations, based on which the appellant was charged, tried and convicted, reads as under; By around 7:30 PM on 3-8- 2002, the Sub Inspector of Police, Chandera Police Station (PW1) received secret information that a person by name Anil Kumar (appellant) would be reaching the bus waiting shed situated at Matlayi by around 8:30 PM for the purpose of selling the opium in his possession. Immediately, PW1 recorded the information in the General Diary, intimated his Superior Officer, the Circle Inspector of Police, Nileshwaram and proceeded to the spot. The police party lay in wait near the bus waiting shed and by around 8:45 PM, the appellant reached the spot in an autorikshaw and entered the bus waiting shed. Immediately, the Police party rushed to the waiting shed and on the appellant attempting to flee, apprehended him. PW1 thereupon, asked the appellant whether he required the presence of a Gazetted Officer while his body was searched and on the appellant answering in the negative, his body was searched and a plastic packet recovered from the pocket of his pants. On examination, the packet was found to contain opium, for the possession of which the appellant had no licence. The opium was weighed and found to be 350 gms in weight. Two samples of 25 gms each, were collected from the contraband and were packed and sealed separately. The remaining opium was also packed and sealed in the same manner. Ext.P3 seizure mahazar was prepared and the accused was arrested. Exhibit P4 FIR was registered thereafter. Later, Exhibit P8 chemical analysis report was received finding the sample to be opium.

(2.) In order to prove the prosecution case, PWs 1 to 5, were examined and Exhibits P1 to P8 documents and M.Os 1 to 3 material objects were marked in evidence. The appellant denied the incriminating circumstances put to him during his examination under Section 313 of the Cr.P.C, but did not choose to adduce any defence evidence, either oral or documentary. The trial court, on appreciation of evidence and after considering the rival contentions, found that the prosecution had succeeded in proving the accused guilty and thereupon convicted him for the offence under Section 17 of the NDPS Act.

(3.) Heard Sri.K.Srihari Rao, the learned Counsel for the appellant and Sri. B. Jayasurya the learned Public Prosecutor. The learned Counsel for the appellant assails the trial court judgement primarily on the ground of violation of Section 50(1) of the NDPS Act. It is contended that the mandatory requirement of making the accused aware about his right to be examined before a Gazetted Officer or a Magistrate having not been complied with, the investigation, and consequently the trial, stood vitiated.