SALAHUDDIN Vs. STATE OF KERALA

JUDGEMENT

(1.) The new question that arises in this appeal is as to the notification with reference to which small quantity of contraband under the N.D.P.S. Act has to be assessed; that is, as to whether it is the notification that prevailed on the date of occurrence or the notification that has come into effect under the Amendment Act 9 of 2001 that applies for purposes of the benefit contemplated in S.41 of the said Amendment Act. Another question of novelty is whether there will be violation of the provisions of S.50 of the N.D.P.S. Act if the offender is searched in the presence of a Gazetted Officer or Magistrate who is brought to the scene of occurrence instead of the accused being taken to a Magistrate or Gazetted Officer as the accused might opt.

(2.) The challenge in the appeal is with regard to the conviction entered against the appellant as accused in S.C. No. 318/99 of the special Court for trial of N.D.P.S. Act cases (Sessions Court), Trissur for the offence under S.20(b)(i) of the N.D.P.S. Act and the sentence of R.I. for 18 months and fine of Rs. 5,000/- (in default S.I. for six months) imposed therefor.

(3.) The prosecution case was that the accused was found in possession of 600 grams of ganja while he was available in front of Libitha hotel near Panchavadi, Trissur, on 29.12.97. He was caught by the Excise Circle Inspector by name K.M. Ismail. Based on suspicion he was stopped and questioned and it was decided to have a body search. When the accused was questioned about his option under S.50, he wanted the presence of a Gazetted Officer and accordingly PW 2 who was the local Tahsildar was summoned to the spot and in his presence the body search was made, when the packet in his hand was found to contain the above contraband.