M C USSAIN Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is directed challenging the conviction and sentence delivered by the Sessions Judge, Kozhikode Division in S.C. No. 178 of 1993.

(2.) The prosecution case is that on 11-6-1993 at about 11.30 A.M., the Sub Inspector of Police attached to Kozhikode Town Police Station, examined as PW1, received reliable information that the accused was indulging in the sale of brown sugar at the Beach Road, Kozhikode. Therefore, with his party, he proceeded in a jeep. In the Beach Road, he saw yet another person standing near the accused. On seeing the jeep, the another person ran away from that place and the accused also began to walk towards the south. PW1 intercepted the accused and questioned him. The accused admitted that he had been indulging in the sale of brown sugar and he is in possession of sale proceeds and also 2 packets of brown sugar. Then he put a question to the accused as to whether he is willing to be searched in the presence of a gazetted officer or a magistrate. The reply was in negative. Hence he arrested the accused and recovered brown sugar as per Ext. P1 mahazar. Thereafter, he proceeded to the police station along with the accused. There, he prepared Ext. P2 F.I.R. During the course of the trial, witnesses were examined on the prosecution side, since the accused denied the charge under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). Learned Sessions Judge, on conclusion of the trial, found the accused guilty under Section 21 of the Act and sentenced him to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 1 lakh and in default in the payment of fine, to undergo imprisonment for a further period of three years.

(3.) In this appeal, Mr. Sunny Mathew raised a question of law that the statutory requirements contemplated under Sections 42 and 50 of the Act were not complied with by PW1, the Sub Inspector of Police. For appreciation of the above contention, Sections 42 and 50 of the Act can be reproduced hereunder :