The appellant is the accused in SC 85/1998 of the Special Court for trial of N.D.P.S. Act cases, Vadakara. The challenge is with regard to the conviction entered against the appellant by the said court for the offence under section 21 of the N.D.P.S. Act and the sentence of R.I. for 10 years and fine of Rs.1 lakh (in default S.I. for 6 months) imposed therefore.

2. The prosecution case is that at about 8.30 p.m. on 15.8.1997, PW3 – Circle Inspector of Police got information that the accused Abdul Basheer (son of Muhammed) was engaged in the sale of brown sugar in the shop of his father at Market Road, Koduvally. After recording the information and transmitting a copy to the Official Superior-by.S.P., Thamarassery, he proceeded to the spot accompanied by the other Police Officials and found the accused inside the shop. He was alerted of his rights under section 50 of the N.D.P.S Act and questioned about his option. The accused waived his rights and accordingly his body was searched by PW3. That revealed that existence of 20gms of brown sugar concealed in a packet kept underneath the underwear worn by the accused.

3. After the trial, the accused was convicted for the offence under section 21 of the N.D.P.S. Act as per judgment dt.16.3.1999. That was based on the evidence of PWs. 1 to 7, Exts.P1 to P12 and Mos. 1 to 3. The said conviction was challenged before this court in Crl.A.360/1999. On 28.5.2001 that appeal was allowed in part; the conviction was set aside and the case remanded with direction that the trial court should invoke its power under section 311 and issue summons to the other occurrence witnesses and decide the case based on the additional evidence. It was further directed that the accused might be released on bail pending further trial.

4. After the said judgment and based on the additional evidence adduced through PWs.6 and 7, DWs.1 and 2 and Exts.D1 and D2, besides the other evidence already recorded, the court passed fresh judgment on 17.11.2001 which is now under challenge.

5. The learned counsel for the appellant submitted that even the additional evidence recorded is insufficient to find that the accused is guilty and that in any event the trial court should have given the benefit of the amended provisions which came into effect on 2.10.2001 based on the N.D.P.S. Act of 2001 (Act 9 of 2001) and reduce the punishment imposed for the offence.

6. On the arguments advanced in the case, the points that arise for decision are:-

1) Whether there is adequate evidence to find that the accused was in possession of 20gms of brown sugar on 15.8.1997 as alleged?

2) Whether there is violation of the mandatory provisions contained in the N.D.P.S. Act?

3) Whether the quantum of brown sugar possessed by the accused is lesser than the commercial quantity?

4) Whether the conviction and sentence entered in the case warrant any modification?

7. Point No.1:- I am not repeating the facts in this judgment as they are contained in paragraph 2 of the impugned judgment. PW3, who is the Circle Inspector of Police had given evidence to the effect that he got information with regard to the sale of contraband going on in the shop of the father of the accused and accordingly proceeded to the spot and after giving the statutory option to the accused, who was seen there regarding his right to be searched in the presence of a Gazetted Officer or a Magistrate, searched his body whereupon the accused took a packet containing brown sugar from underneath his underwear and handed over to the same to PW3, which, on weighment, was found to be of 20gms. He also spoke of the procedural formalities including sampling and preparation of search list.

8. The independent occurrence witnesses cited by the prosecution namely, PWs.1 and 2 had turned hostile and that was the background in which the case was remanded earlier with direction to invoke power under section 311 of the Cr.P.C. to examine the other occurrence witnesses whose names had been mentione