M.R. Hariharan Nair, J.

A novel question arises in this case and that is whether in a case where additional evidence is recorded under Sec. 391 (2) of the Code of Criminal Procedure in an NDPS Act case, the accused can seek the benefit of Sec. 41 of the NDPS (Amendment) Act, 2001 (Act 9 of 2001). The said provision gives the benefit of reduced sentence available under the amended provisions with retrospective effect to the accused whose cases are still under trial; but denies that benefit to the accused in cases which are pending before the appellate court.

2. The challenge in the appeal is with regard to the conviction entered against the appellant as accused in S.C.No.78/2000 of the Special Court for the trial of the NDPS Act Cases, Vadakara, for the offence punishable under Sec .21 of the NDPS Act and the sentence of rigorous imprisonment for 10 years and fine of Rs.l lakh (in default, simple imprisonment for six months) imposed therefor.

3. The prosecution case that at about 2 p.m. on 24-8-1999, P.W.3, who was the Sub Inspector of Vengara Police Station, who was doing patrol within his area of juridiction got a secret information that sale of brown sugar was going on i