The appellant is the accused in S.C.No.1289/2000 on the file of the Special Judge (for trial of cases under the NDPS Act). Thiruvananthapuram. She has been charged with offences punishable under Sections 20(b)(ii), 21 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’). She was found guilty and was convicted under those counts.

2. The occurrence was on 27.9.2000, before the enforcement of the amendments as per Act 9/01, but the conviction was on 16.11.2001, after such enforcement. The quantity of the psychotropic substances (cannabis plant and hashish oil) involved violating Section 20(b)(ii) of the Act was 158 grams, whereas the quantity of heroin, a narcotic drug, to invite punishment under Section 21 was 100 grams. The interception of the accused was at Thiruvananthapuram. Airport, while she was proceedings overseas from Trichy to Maldives. She did possess Exts.P1 to P4 air ticket and other travel documents to show that she had to fly on the same day to Maldives. Therefore, she had attempted export of the said drug and psychotropic substance; thereby committing an offence under Section 23 of the Act. Considering the evidence on record and adverting to the points of defence including violation of the provisions contained in Sections 42, 50 and 57 of the Act, the court below convicted the accused as mentioned above.

3. The contraband articles were concealed inside the panties worn by the accused. The panties were not produced. This was also one among the arguments of the defence. That was also considered by the court below. There is a further contention before me that the gazetted officer, in whose presence the search was made, was also not examined. Again, it is contended that though the proceedings before the court below terminated after the enforcement of Act 9/01 amending the NDPS Act, 1985, the benefit of the amended provision was not given to the appellant/accused.

4. Going by the amended Act, the maximum penalty provided is rigorous imprisonment extending to 10 years. It need not always be 10 years. It can be for a shorter term as well, taking into account the quantity involved and in the circumstances of the case.

5. First of all, I will consider whether there is violation of Section 42 of the Act in this case. Section 42 says that where an officer takes down any information about the commission of the offence under the Act in writing or records grounds for his belief,

“he shall, forthwith, send a copy thereof to his immediate official superior”.

In this case, it was not done. It is a mandatory provision for the protection of the persons implicated in the case.

6. PW.1 is the officer concerned. He got information from the Intelligence Officer at Trichy that one lady passenger was arriving in Thiruvananthapuram International Airport, concealing narcotic drugs in her panties. There is evidence in this case that PW.1 informed his superior immediately. His immediate superior was at Calicut, about 500 km. Away from Thiruvananthapuram. He telephoned his superior and then proceeded to the Airport. It is also in evidence that his immediate superior, PW.5, had informed him then and there itself, that he was proceedings to Thiruvananthapuram immediately for other purposes as well. It is also in evidence that PW.5 had arrived at Thiruvananthapuram at 11 P.M. on 27.9.2000 and at that time Ext.P13 report has been handed over to him by PW.1. On the other hand, if Ext.P13 report had been sent to PW.5 in his Calicut address, it would not have reached him even in another 48 hours. When PW.1 the officer concerned did have the information that his immediate superior told telephonically that he had been coming over to meet him also in connection with this case and when Ext.P13 report was kept by him for handing it over to him directly, in a case of this nature, it cannot be taken that there was any violation of Section 42, because the report has reached the hands of the superior officer, far earl