JAYARAJ ALIAS JAMES Vs. STATE OF KERALA

JUDGEMENT

(1.) The challenge in this appeal is with regard to the conviction entered by the Special Court for trial of N. D. P. S. Act cases (Sessions Judge), Thodupuzha for the offences under S.20(b)(i) and 22 of the Narcotic Drugs and Psychotropic Substances Act, and the sentence of (i) rigorous imprisonment for two years and fine of Rs. 10,000/- (in default rigorous imprisonment for three months) and (ii) rigorous imprisonment for ten years and fine of Rs. 1,00,000/- (in default rigorous imprisonment for one year) respectively imposed for the said two offences.

(2.) It was the prosecution case that based on information that trafficking in narcotic drugs was going on in buses that ply between Kumili and Kottayam, PW 4 - Circle Inspector of Excise Narcotic Enforcement Squad, Adimali and his party made check of transport vehicles operating in the route on 6.3.1996 in the course of which at about 1.15 p.m. a K.S.R.T.C bus bearing Regn. No. KL 15/1314, of which PW 1 was the Bus Conductor, was also stopped and checked and that during the search, the present accused was found near the Conductor's seat holding an air bag on his shoulder. On examination, the said bag was found to contain 500 grams of dried ganja. The accused was brought down from the vehicle and after complying with the requirement of S.50, his body was searched further and it was found that he was holding 10 capsules of 'Dormin - 10' which was subsequently identified as a psychotropic substance called 'Nitrazepam'. The Trial Court accepted the prosecution version based on the evidence of PWs. 1 to 4.

(3.) Sri. Alexander Skaria, who appeared for the appellant, contended that the conviction is improper and illegal in so far as S.50 of the N. D. P. S. Act has been violated in the matter of search and seizure. It is pointed that the accused was not all informed of his rights to be searched in the presence of a Gazetted Officer or a Magistrate before his bag was searched and the alleged ganja of 500 gms. seized therefrom. It was also argued that when there was such major defect in the initial search, the subsequent information conveyed to the accused and the body search conducted thereafter is also vitiated. Reliance was placed in this regard on the unreported decision of this Court on 11.8.2000 in Basheer v. State of Kerala (Crl. A. 724/98).