E MICHEAL RAJ Vs. INTELLIGENCE OFFICER

JUDGEMENT

(1.) The appellant is the accused No. 1 in S.C. No. 1082/01 on the file of Special Judge (N.D.P.S. Act) Thiruvananthapuram. There were altogether two accused. Accused No.2 escaped from custody. He could not be found out. Therefore, the accused No. 1 alone faced trial. The offence alleged was one punishable under S.21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').

(2.) The prosecution case was that PW 4, the Intelligence Officer of Narcotic Control Bureau got an information on 5.3.2001 at about 7 a.m. from an informant that two persons with certain drugs would be arriving in Thiruvananthapuram bus stand in a Tamil Nadu Transport Corporation bus. Consequently, the information so received was written down by him and was communicated to his superior officer, PW 5. PW 5 with a written endorsement directed PW 4 to proceed with the matter. Accordingly, PWs. 4 and 5 and other two officials along with the informant went to Thampanoor bus stand and waited for the arrival of Tamil Nadu Transport Corporation bus indicated by the informant. When the bus came, the informant gave signal to PW 4. He found out two persons. One among them, the appellant, was having a plastic bag in his possession. PWs.4 and 5 disclosed their identity to both the accused that they were officers from Narcotic Control Bureau and said that there was suspicion that they were in possession of narcotic drugs and wanted to search and inspect them. PWs. 4 and 5 also enquired with the accused that if they would desire the presence of Gazetted Officer or Magistrate, to conduct their body search. They replied in negative. Thereupon, the second accused disclosed to PW 4 that the plastic bag in the hands of the appellant/accused No. 1 contained narcotic drugs. Plastic bag was taken. Inside, two covers were found out concealed by banian and towel. Each cover approximately weighed 2 Kgs. Altogether, it weighed 4.08 Kgs. It was suspected to be manufactured drug, heroine. Samples were taken and sent to laboratory concerned. The reports are marked as Exts.P16 and P17 analysis. They were on quantitative and qualitative basis. Both the reports disclosed that the samples contained nothing other than heroine. Of course, Ext. P17 indicated that the purity was between 1.4 and 1.6.

(3.) PW 1 was the independent witness who attested Ext. P1 seizure mahazar and also deposed before the Court below about the compliance of the procedure contained in S.50 of the Act and also testified seizure. The Court below appreciating the evidence on record found that the accused No. I/appellant was in possession of a manufactured drug, heroine, without any authority and thus committed an offence punishable under S.21 of the Act. The quantity as mentioned above come to 4.08 Kgs. The punishment for possession of that much quantity of manufactured drug even before the amendment by Act 9/01 was a minimum term of 10 years and fine of Rs. 1,00,000/-. The occurrence was before the amendment of the Act. But the conviction was on 19.1.2004, after the enforcement of the amendment. Even going by the amended provision the quantity comes beyond commercial quantity. Necessarily, the punishment is same as that was existing before the amendment. Therefore, when the offence is proved, there was no other option for the Court below to impose a punishment as already ordered. This conviction and sentence are under challenge in this Criminal Appeal.