Mandatory provisions under Sections 42 and 50 of the NDPS Act must be followed strictly; non-compliance vitiates prosecution.

JUDGMENT :

Venkatesh Naik T., J. - This appeal is filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973, (for short, 'Cr.P.C.') praying to set aside the judgment of conviction and order on sentence dated 04.01.2021 passed by the Principal Sessions Judge/Special Judge, Vijayapura, (for short 'trial Court') in Special (NDPS) Case No.3/2018, wherein the trial Court convicted the appellant and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,00,000/- and in default, he shall undergo simple imprisonment for one year for the offence punishable under Section 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').

2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellant is the accused and the respondent-State is the complainant.

3. The brief facts of the prosecution case are that on 20.05.2017 at about 2.00 p.m., PW3-Excise Inspector received credible information that, the accused is transporting ganja on Bajaj Kawasaki motorcycle, bearing Registration No.KA-23/EF-1977, from Kannur Village side to Tidagundi side. Hence, he informed the same to his higher officer, secured a Gazetted Officer, sub-staff and pancha in order to conduct raid and kept watching the movements of the vehicles. At that time, when the said Bajaj Kawasaki came, they stopped the said bike and on enquiry, the rider of the vehicle i.e., the accused, revealed his name as Mallappa and on being inspection, they found 17 plastic bags containing ganja and said plastic bags were weighing about 750 grams each in total 12.750 Kgs. and the accused revealed that he has grown said ganja and he would sell the same to one customer of Horti Village. Therefore, they seized the ganja by taking 34 samples of 30 grams each from the plastic bags by drafting panchanama, apprehended the accused and registered the case. Later, PW8 conducted investigation and filed charge-sheet against the accused for the offences punishable under Sections 20 (b) and 60 of the NDPS Act.

4. After receipt of the charge-sheet, the trial Court took cognizance of the offence under Section 190(1)(b) of the Cr.P.C., secured the presence of the accused and supplied a copy of the charge-sheet to the accused by complying Section 207 of the Cr.P.C. After hearing both the parties, framed charge for the aforesaid offences, read over to the accused, he pleaded not guilty to the charge and claimed to be tried.

5. The prosecution in order to bring home the guilt of the accused, got examined in all eight witnesses as PW.1 to PW.8, got marked fourteen documents as per Ex.P1 to Ex.P14 and got marked two material objects as per MOs.1 and 2, and closed its side. The statement of the accused as contemplated under Section 313 of the Cr.P.C., was recorded by the trial Court by explaining the incriminatory material, the case of the accused was of total denial and he did not enter the witness box.

6. The trial Court, on the basis of the material available on the record, framed the following point for consideration, which reads as under:

"Does the prosecution prove to the hilt that on 20.05.2017 at about 4.00 p.m., in front of the Basaveshwar Devastan on Kannur -Tidagundi Road, the accused was found in possession of 12.750 kg of ganja being grown by him in his land and transporting the same on the motorcycle bearing Regn. No.KA-23/3F-1977 for the purpose of sale, punishable under section 20(a) and (b) of the NDPS Act as