IMPORTANT POINT
In a case under NDPS Act merely that a panch witness did not support prosecution case by itself would not make prosecution case any less acceptable if otherwise Court was satisfied that seizure was genuinely made.

JUDGMENT

Santosh Hegde, J.-The appellant was convicted for an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act as it stood then (the Act) by the Special Judge (NDPS Cases), Vadakara, and was sentenced to undergo RI for 10 years, and a fine of Rs. 1 lac was imposed; in default the appellant was directed to undergo further sentence of simple imprisonment for 3 months. Appellant s appeal to the High Court of Kerala at Ernakulam as against the judgment of said Special Court came to be dismissed by the impugned judgment of the High Court. Hence, the appellant is in appeal against the said judgment.

2. Brief facts necessary for the disposal of this appeal are that on 3.8.1999 PW-1 Sub-Inspector of Police of Police Station Nadakkavu received information that a middle-aged lady was selling brown sugar in Santhinagar Colony, Kannur behind the canteen of the Industrial Estate. On receipt of said information PW-1 sent a report to his superior officers and proceeded to the place mentioned in the information along with a lady constable. They found the appellant at the place as mentioned in the information. Then on the suspicion that the appellant was carrying contraband goods, PW-1 expressed his desire to search the appellant. He informed her of her right under section 50 of the Act to be searched by a Gazetted Officer or a Magistrate which right the appellant allegedly waived. On such waiver, the lady constable PW-2 accompanying the search squad, searched the appellant and found in a purse carried by the appellant 750 mgs. of brown sugar packed in 4 packets. The said contraband was then weighed, sample taken and sealed in the presence of Panch witnesses. On an analysis of the sample sent to the chemical examiner it was found that the contraband contained impure heroin which was known in the market as brown sugar. After completion of the investigation, a chargesheet was laid for offence punishable under section 21 of the Act as stated above. The trial court as well as the High Court have found the appellant guilty.

3. In this appeal, Mrs. Santosh Singh, learned counsel appearing as an amicus curiae, contended that as the law stood on the date of the seizure, sale of brown sugar was not an offence because such an offence was confined to manufacture and preparation only. For the said purpose she relied upon the definition found in section 2(11) of the Act and also submitted that the Schedule at that time did not include brown sugar as one of the contraband articles. She also alternatively contended that since the quantity of brown sugar allegedly seized from the appellant was only 750 mgs. the same cannot be treated as a quantity kept for commercial use and could only be for personal consumption. She further contended that there is a discrepancy in the evidence of PWs. 1 and 2 in regard to the seizure of the contraband as also in regard to the factum of the contraband being sealed at the time of seizure. She further contended that independent witnesses have not supported the prosecution case.

4. Mr. John Mathew, learned counsel appearing for the respondent-State submitted that section 2(xvi)(b) and 2(xi) shows that the seized brown sugar contraband even under the Act then applicable, being an opium derivative, is treated as a contraband article if possessed for sale. He also pointed out from the definition that the possession of said contraband was an offence even under section 21 of the old Act. Learned counsel rebutting the argument of learned counsel for the appellant submitted that the contradictions pointed out by the learned counsel in regard to the evidence of PWs. 1 and 2 are of such minor nature that it would not in any manner affect the credibility of the seizure of the contraband from the appellant. So far as the quantum of contraband seized from the appellant is concerned, under the law then applicable, even 750 mgs. of brown sugar being a prohibited drug possession thereof attracted punishmen