DANIEL Vs. STATE OF KERALA

JUDGEMENT

(1.) THE challenge in this jail appeal is with regard to the conviction entered against the accused for the offence under S. 20 (b) (i) of the n. D. P. S. Act and the sentence. of R. I. for three years and fine of Rs. 30,000/- (in default R. I. for one year) imposed therefore.

(2.) THE prosecution case that at about 5. 50 RM. on 10. 8. 1997 the accused was seen in possession of 200 grams of ganja made into 84 small packets and concealed in a black bag kept in the arm pit of the accused besides another 425 grams in a plastic cover held in his hand while standing on the eastern side of tarred road leading to Charuvelli at Ponthenpuzha East junction in Manimala Village found acceptance based on the evidence of PWs. 1 to 5 and Exts. P1 to P9 and Dl to D3. THE conviction and sentence followed.

(3.) POINT No. 1: The evidence of PW. 4 is to the effect that while proceeding on patrol duty along with other policemen, PW. 4, who was the Sub Inspector of Manimala Police Station, found the accused standing at the eastern side of the road near Ponthenpuzha east junction holding a bag in his hand and another bag at the portion near his armpit. The finding of the accused as above was casual and not based on any prior information. That apart, the accused was not found in a building, conveyance or enclosed place. On the other hand, it was in a public place. That S. 42 (1) does not apply with regard to information relating to availability of contraband in an open place is covered by the decision in Abdul Azeez v. State of Kerala (2001 (1) KLT 805), which has been confirmed in appeal by the Apex Court vide order in S. L. P. (Crl.) 3120 of 2001. The contention that there was violation of S. 42 (1) of N. D. P. S. Act has therefore to fail.