JUDGMENT :

Appellants 1 to 3 assailing the judgment of conviction and order of sentence passed by the learned Prl. Dist. & Sessions Judge Special Judge, Dharwad in Spl. NDPS CC No.4/2008 dated 21.04.2011 are before this Court.

2. I have heard the learned counsel for the appellants and the learned Addl. SPP for the respondent-State.

3. The case of the prosecution in brief is that, on 07.01.2008 at about 2.45 p.m. the Police received a credible information that the accused Nos.1 to 3 are carrying ganja in card board box without there being any permit or licence in the Hubballi railway station on platform No. 2. Immediately the said information has been passed over to the superior and thereafter they secured the panch witnesses and went to the place wherein they saw accused Nos.1 to 3 were sitting. In front of them card board box were there. They were questioned and thereafter they came to know, the said card board box contains 1 kg each ganja. The same was seized by drawing a mahazar and thereafter they have been apprehended and brought. A complaint was registered in Crime No. 2/2008 under section 20(b)(1) of NDPS Act.

4. The learned Sessions Judge took the cognizance of the case and after hearing the learned PP and the learned counsel for the accused, charge was framed. The accused pleaded not guilty. They claimed to be tried and as such the trial was fixed.

5. The prosecution in order to bring home the guilt of the accused got examined 7 witnesses and got marked 10 documents and also got marked six material objects. Thereafter the statement of accused was recorded by putting incriminating material. The accused have not led any evidence and not got marked any documents. After hearing the learned counsel for the accused and the learned Public Prosecutor, the Court came to the conclusion that the accused have committed the offence and they were convicted. Challenging the legality and correctness, the accused persons are before this Court.

6. The main grounds urged by the learned counsel for the appellants-accused are that the judgment of conviction and order of sentence is contrary to law and evidence and material placed on record. It is his further submission that while doing the personal search the I.O. has not followed the mandate of Sec. 50 of the Act. It is his further submission that no notice has been given and even PW4 has clearly admitted that the notice is not signed and not served to the accused. When the mandate of the law has not been followed, then under such circumstances the accused is entitled to be acquitted for the alleged offence. It is his further submission that there is 18 days delay in sending the seized articles to the FSL. No explanation has been given by the I.O. and even the said seized articles have not been kept in Malkhana as per Sec. 55 of the Act. If the seized articles were not properly sealed and sampling was not done under such circumstances the accused is entitled to be acquitted. In order to substantiate the said contention, he relied upon the decision in the case of Yogesh Kumar Vs. State of Bihar reported in 2020 Crl.L.J. 238.

It is his further submission that the learned Sessions Judge has not kept into view the quantity of the ganja which has been seized. As per the said notification specifying the small quantity and commercial quantity in so far as item no. 55 is concerned the ganja seized is 1 kg and if it is 1000 grms then itself it is considered to be a small quantity. If it is a small quantity, then under such circumstances the trial Court ought to have convicted the accused u/s 20(a)(1) of the Act. The sentence which has been imposed is contrary to the law. It is his further submission that the accused are first offenders and there are no bad antecedents. On these grounds he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence by acquitting the accused.

7. Per contra, learned Addl. SPP vehemently argued and submitted that though there is some irregula