HAMZA Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is at the instance of the accused in S. C. No. 88/96 on the file of the II-Additional Sessions Court, Kozhikode. The appellant was convicted and sentenced to undergo rigorous imprisonment for a period often years and to pay a fine of Rs. one lakh or in default rigorous imprisonment for a further period of one year, for an offence under S. 21 of the narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the act ). Aggrieved by the above conviction and sentence, the appellant preferred this appeal.

(2.) THE case of the prosecution was that on 22. 8. 1995 at 4. 15 p. m. the appellant was found to be in possession of 4. 5 grams of opium. Two police constables (P. W. 2 and PC 3434) attached to the crime squad found the appellant sitting on the varanda of a shop on the southern side of the Bavutti Haji Road . As the appellant was jittering, they suspected the appellant of having possession of Narcotic Drugs. Accordingly P. W. 2 informed the matter telephonically to the Town Police Station. P. W. 1, the Additional Sub Inspector proceeded to the spot and informed the appellant that P. W. 1 would like to search his body and asked whether the appellant required the search being conducted in the presence of a gazetted officer. THE appellant replied that it was not necessary and permitted P. W. 2 to conduct the search. THEreafter, P. W. 1 conducted the search on the body of the appellant and recovered a plastic paper containing opium which was kept in the pouch of the belt worn by the appellant. P. W. I seized the contraband and the belt as per Ext. P1 mahazar. After reaching the police station, Ext. P2 report was also prepared by P. W. , regarding the seizure and informed the matter to the Circle Inspector of Police. A case was registered on the basis of Ext. P2 report as Crime 145/95. P. W. 7, the Circle inspector conducted the investigation of the case and P. W. 8, Circle Inspector completed the investigation and laid the charge.

(3.) THE main argument advanced by the learned counsel for the appellant was that there was non-compliance of S. 50 of the Act and as such the search and seizure was illegal and hence the appellant was entitled to be acquitted. P. W. 1 was the Addl. Sub Inspector who detected the offence and conducted the search. His evidence before court was that he proceeded to the scene of occurrence, on receiving telephonic information from P. W. 2 (a police constable) and informed the appellant that he had the right to demand the search being conducted in the presence of a gazetted officer and the appellant waived that right. THE learned counsel for the appellant argued that the above version given by the appellant that he informed the appellant of his right to demand the search being conducted in the presence of a gazetted officer was a new story spoken to by him for the first time in court and Ext. P1 mahazar or ext. P2 report did not disclose such case. Ext. P1 was the seizure mahazar prepared by P. W. 1 at the time of the alleged search and seizure of the articles. Ext. P1 did not disclose anything about the compliance of S. 50 of the act and also about the alleged wavier by the appellant. THE evidence of the prosecution cannot be discarded for the sole reason that Ext. P1 seizure mahazar did not disclose the compliance of S. 50 of the Act in view of the decision of the Apex Court in Pan Adithan v. Dy. Director, Narcotic Control bureau, Madras OT 1999 (4) SC 540 ). THEre it was held that even in the absence of any independent evidence or any other supporting documentary evidence, the evidence of the solitary departmental witness can be regarded as sufficient compliance of S. 50 of the NDPS Act, if such evidence is reliable.