L. S. SREENIVASA REDDY, J.

( 1 ) APPELLANT Babu Rao has been convicted by the Special Judge, Metropolitan Area, Bangalore City under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- or in default to suffer rigorous imprisonment for one year. Canvassing the correctness and legality of the said order of conviction and sentence he has preferred this appeal through the Senior Jail Superintendent, Central prison, Bangalore.

( 2 ) SRI R. C. Ijari was appointed as Amicus Curiae to argue this appeal on behalf of the appellant and he has ably assisted the Court.

( 3 ) THE case of the prosecution is brief and simple : On 27-2-90 at about 5-30 p. m. the accused was found in possession of some ganja packets while he was selling the same to the public behind Seetharama Choultry, Kengeri. The Special squad of the Commissioner of Police, Bangalore which was on beat rounds having received information regarding the alleged sale of ganja packets, rushed to the spot and apprehended the accused and seized 17 packets of ganja from him. The persons who had gathered there to but the ganja packets from the accused ran away on arrival of the Special squad of Police. The said squad consisted of the Circle Inspector of Police, Syed Rafik (PW 5) and the Sub-Inspector of Police jutike Gowda (PW 2 ). After apprehending the accused, PW 2 seized 17 packets of ganja from him under a mahazar Ex. P. 1. All the packets were put in a cover with a seal bearing 'ss' mark. The accused was taken to Kengeri Police Station and PW 2 produced Ex. P. 1 the mahazar and also his complaint Ex. P. 2. P. W. 3 V. Venkatesh, the then Station House Officer, registered a case against the accused in Crime No. 22/90 for an offence punishable under Section 20 (b) of the NDPS Act and issued FIR. They seized ganja packets from the cover and subjected it to property form and the accused was arrested. Subsequently, P. W. 4 the Sub-Inspector of Police, Kengerigate Police Station took up further investigation. The seized ganja packets were sent to the Forensic Science Laboratory and after completion of due investigation, a charge-sheet was filed against the accused before the II Addl. C. M. M. Bangalore for the said offence. Thereafter, the case was committed to the Court of the Special Judge, Metropolitan Area, Bangalore City.

( 4 ) DURING the course of trial the prosecution examined PWs 1 to 6 and marked Exs. P1 to P4 and M. Os. 1 to 3

( 5 ) SRI R. J. Ijari, learned Amicus Curiae submitted that the trial Court ought not to have convicted the accused for an offence under Section 20 (b) of the NDPS Act in the absence of any material against him. He also contended that there was no compliance of Sections 42, 50 and 57 of the NDPS Act by the Police and, as such, the impugned order of conviction and sentence are liable to be set aside.

( 6 ) IN the light of these submissions, I have reassessed the evidence on record and also examined whether there has been compliance of Sections 42, 50, 55 and 57 of the NDPS Act.

( 7 ) NOW, let me examine the evidence placed on record by the prosecution in proof of its case. PW 1 Lakshmana is a panch witness. He is said to have attested Ex. P. 1 mahazar under which the said ganja packets were seized from the accused on 27-2-90. But he did not support the prosecution case. He was permitted to be cross-examined and in his cross-examination nothing useful to the prosecution has been elicited. Therefore, his evidence is of no assistance to the prosecution.

( 8 ) ACCORDING to PW 2, he received information on 27-2-90 that one person was selling ganja packets behind Seetharama Choultry at Kengeri. But he has not mentioned the name of the person who gave the information to him. he also did not reduce into writing the said information given by that person. According to him, Circle Inspector of Police - PW 5 also a

Click Here to Read the rest of this document