SHARAFUDEEN ALIAS THAMPI Vs. STATE OF KERALA

JUDGEMENT

(1.) The first accused in S.C.No.157 of 1991 before Sessions Court, Thodupuzha is the appellant. Along with second accused he was charged for the offence under S.20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act (Act for short). The prosecution case is that the second accused sold two kilograms of dried Ganja to the first accused on 22-7-1990. The first accused while he was travelling in Angel bus on 23-7-1990 at about 8.30 a.m. was found possessing Ganja by Head Constable of Kattappana Police Station who was also travelling in the same bus. Suspecting that the packet contained contraband article, the Head Constable wanted the first accused to open it and show him the contents. On opening the packet, Ganja was seen inside. The bus was directed to be taken to the police station. The first accused and the contraband article were taken to the Sub Inspector of Police who prepared a mahazar and seized the article. Crime was registered and complaint was presented before the court below. The article on analysis was found to be Ganja. The court below on an appreciation of the evidence found the first accused guilty, convicted him and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 10,000/- and in default to undergo rigorous imprisonment for another period of six months. The second accused was found not guilty and acquitted. The first accused who is undergoing sentence in the Central Prison Thiruvananthapuram has sent this appeal through the Superintendent of the Prison.

(2.) Adv. Sri. P.N. Purushothama Kaimal appeared for the appellant. Heard counsel and Public Prosecutor.

(3.) The main contention advanced by learned counsel for the appellant is that the offence was detected by a Head Constable who is not an authorised officer under the Act. Counsel has pointed out that PW. 1, the Head Constable had seized the article and had produced the same before the Sub Inspector of Police (PW.4) along with the first accused. The search having been conducted and the seizure made by an officer who is not authorised or empowered, the prosecution is illegal according to counsel and the trial is vitiated for that reason, but from Ext. P1 report of the Head Constable (PW 1), Ext. P2 mahazar prepared by PW.4 and the first information report submitted by him and the evidence tendered by PWs. 1 and 4, it is clear beyond doubt that PW. 1 has not effected seizure of the article whereas he has only taken the first accused along with the article to the authorised officer.