MUHAMMAD Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused in Sessions Case No. 44 of 1991 before the Assistant Sessions Judge, Manjeri is the appellant. He was found guilty of the offence punishable under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act (for short the Act) and convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 50,000 and in default to undergo simple imprisonment for a further period of five months. Set-off for the period of detention was allowed under Section 428 of the Code of Criminal Procedure. The conviction and sentence are challenged by the accused in this appeal.

(2.) THE case of the prosecution is that while the Circle Inspector of Police, Perinthalamanna and other Police Officials were on patrol duty at 5 a.m. on 9.12.1990 they found the accused standing on the north-eastern comer of the verandah of the KSRTC bus stand at Perinthalamanna. He was found keeping possession of a bag. The Police officials being suspicious of the movement of the accused seized the bag and on opening the same found 1.2 kgs. of Ganja inside. The Head Constable who was present in the police party was asked to bring a balance and a police constable was sent to the Circle Office to bring seal and lac. In the presence of a Security Guard of KSRTC and a driver mahazar was prepared and the contraband article was taken into custody. Samples were taken in three packets and all the packets were sealed. A case was registered under Section 20 (b) (i) of the Act. One of the samples was sent for chemical analysis and the same was found to be Ganja. The Assistant Sessions Court to which the case was transferred for trial examined eight witnesses on the side of the prosecution and Exts. P 1 to P 7 and MOs. 1 to 6 were marked. On the side of the defence one witness was examined and a document was marked as Ext. D 1. After hearing Counsel and on a consideration of the evidence on record, the Assistant Sessions Judge found the accused guilty of the offence charged against him, convicted him and awarded the sentence referred above. Hence, the appeal.

(3.) ONE of the main aspects argued by learned Counsel for appellant is that the entire trial is vitiated for non-compliance of the provisions contained in Sections 42 and 50 of the Act. Section 42 directs that any authorised officer, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset enter into and search any such building, conveyance or place. In case of resistance, the officer can break open any door and remove any obstacle to such entry. He is also empowered to seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the Act. He can also seize any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV. The officer has power to detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV But he can enter and search such building, conveyance or enclosed place at any time between sunset and sunrise only after recording the grounds of his belief that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. Sub-section (2) of Section 42 of the Act says that where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.