The failure to comply with mandatory requirements, lack of positive evidence, and benefit of doubt influenced the court's decision in acquitting the appellant.

The challenge is with regard to the conviction entered by the Special Court for trial of Narcotic Drugs and Psychorople Substances Act cases, Kollam for the offence under Section 20(b)(i) of the N.D.P.S. Act and the sentence of rigorous imprisonment for one year and fine of Rs. 10,000/- (in default rigorous imprisonment for three months) imposed therefore.

2. The appellant, who was the 1st accused, was tried along with 4 other accused. The case against the 2nd accused was split up. After trial, accused-Nos. 3, 4 and 5, who were the alleged persons in possession of ganja and available a the back seat of Autorickshaw driven by he appellant and who had escaped some time before the occurrence, were acquitted.

3. The prosecution version was that on 29-7-1995 PW-6 received telephonic information that ganja was being transported in an autorickshaw driven by the 1st accused from Vellarvattom to Chadaya-mangalam; that PW-6 who was the Police Sub Inspector, accompanied by Police Constables thereupon rushed to the place of occurrence; that at about 5.50 p.m. they saw the autorickshaw at a distance of about 100 metres and that on seeing the Police party the driver stopped the autorickshaw, turned it back and proceeded in the reverse direction. The vehicle was stopped and at the time the, 4 persons who were in the back seat, got down and escaped. On approaching the autorickshaw it was found that there was a gunny bag on the platform in front of the back seat. On questioning, the appellant stated that the contents of the gunny bag was ganja. It was opened and after fulfilling other formalities like weighing and sampling, it was removed to the police station along with the arrested accused and the case proceeded with.

4. The learned counsel for the appellant submitted that the appellant is entitled to get an acquittal for the following reasons :-

(i) There is failure on the part of PW-6 to record the information received over phone and to send it to the Superior Officer as envisaged in Section 42(2) of the N.D.P.S. Act and since the said provision is held to be mandatory, the appellant is entitled to that benefit.

(ii) There is no positive evidence adduced by the prosecution to show that the item seized is actually ganja. In that regard, it is the admitted case of the prosecution that the sample forwarded to the Forensic Science Laboratory was destroyed in an explosion that took place in the laboratory and that consequently there is no report of the Forensic Science Laboratory produced in the case.

(iii) The offence that should have been invoked against the appellant is under Section 25 of the N.D.P.S. Act which specifically refers to person in possession of vehicle in which contraband is found and what is alleged against the present appellant is, instead, the specific offence under Section 20(b)(i) of the N.D.P.S. Act which relates to possession of ganja.

(iv) There is violation of Section 50 of the N.D.P.S. Act in so far as the prosecution has no case that the appellant was informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate or that when asked about his option, the accused had given a negative reply.

(v) Lastly, it is contended that in any event, the punishment already undergone together with the period of detention undergone during investigation and trial exceeds 9 months and that in the circumstances, the appellant might be given the benefit of reduced punishment so that he can be released from the prison straight away.

5. The learned Public Prosecutor, who was heard, submitted that the ganja was found in a public conveyance and that in view of the explanation under Section 43 the said conveyance has to be treated as a public place and hence the requirement under Section 42(2) of the Act is not attracted. With reference to the contention based on Section 50 it was submitted that the section applies only to seizure of contraband from the body of the offender and not to a case where it was