SATHYAPALAN Vs. STATE OF KERALA

JUDGEMENT

(1.) A novel question arises in this case and that is whether in a case where additional evidence is recorded under S.391 (2) of the Code of Criminal Procedure in an N.D.P.S. Act case, the accused can seek the benefit of S.41 of the N.D.P.S. (Amendment) Act, 2001 (Act 9 of 2001). The said provision gives the benefit of reduced sentence available under the amended provisions with retrospective effect to the accused whose cases are still under trial; but denies that benefit to the accused in cases which are pending before the appellate court.

(2.) The challenge in the appeal is with regard to the conviction entered against the appellant as accused in S.C. No. 78/2000 of the Special Court for the Trial of the N.D.P.S. Act Cases, Vadakara, for the offence punishable under S.21 of the N.D.P.S. Act and the sentence of rigorous imprisonment for 10 years and fine of Rs. 1 lakh (in default, simple imprisonment for six months) imposed therefor.

(3.) The prosecution case that at about 2 p.m. on 24.6.1999, P.W. 3, who was the Sub Inspector of Vengara Police Station, who was doing patrol within his area of jurisdiction, got a secret information that sale of brown sugar was going on in the premises of the house of Sathyapalan (accused); that after communication of the information to the official superior, he proceeded to the spot along with his police party, detained the accused, who was found near the pathway leading to his house while he was in the process of slipping away from the place on seeing the police party; that in the subsequent body search effected after compliance with the requirements of S.50 of the N.D.P.S. Act, a packet containing brown sugar was found on the left pocket of the shirt worn by the accused and that the weight of the brown sugar found in the plastic cover which was inside the aforesaid packet (covered with paper) was found to be 2.5. grams found acceptance by the Trial Court.