The court clarified the application of S. 43 of the Narcotic Drugs and Psychotropic Substances Act to arrests and seizures in public places and exercised discretion in sentencing based on the appellant's financial circumstances.

This Crl. Appeal is directed against the conviction and sentence delivered by the Sessions Judge (as Special Judge) Waynad in S.C. No. 99/95 dated 30th December, 1995. To appreciate the submissions of the learned Counsel appearing for the appellant and the submission of the learned Public Prosecutor, the facts and particulars which are culled out from the evidence and the judgment of the trial Court can be briefly stated hereunder.

2. On 10-6-1992 in the night PW-2 the Sub-Inspector of Police attached to the Sultans Bathery Police Station along with his party, on receipt of an information, went to the southern gate of Sultan Bathery bus-stand where the appellant was standing in a suspicious manner. When the appellant was interrogated by PW-2, the appellant did not give any proper reply. Therefore PW-2 suspected that the appellant was in possession of some narcotic substances. For making a body search of the appellant, PW-2 questioned him as to whether the appellant wanted to make search in the presence of a Gazetted Officer or in the presence of a Magistrate as contemplated under S. 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act) for which the reply of the appellant was that he need not be searched in the presence of either a Gazetted Officer or a Magistrate. Therefore, PW-2 himself made the body search over the appellant and during the search he found 1.750 kilo grams of Ganja in the physical possession of the appellant. For seizing the Ganja from the appellant as well as for arresting him, Ext. P2 seizure mahazar was prepared which was signed by an independent witness PW-1. The scene mahazar prepared by PW-2 is marked as Ext. P4. After all these formalities were over in accordance with the procedure laid down in the Act, the accused and the seized ganja were produced to the Sultan Bathery Police Station wherein a case was registered in Crime No. 147/92 and the First Information Report was marked as Ext. P3. Then the investigation of this case was taken up by the Circle Inspector of Police who has been examined as PW-4. The sample of the Ganja was sent to Chemical Analyst for test and report with the requisition marked as Ext. P6. The report of the Chemical Analyst marked as Ext. P7 would disclose that the sample sent for the test is nothing but Ganja. After the completion of the investigation, PW-4 the investigating officer laid the final report before the Sessions Judge (Special Judge) punishable under S. 8(c) and 20(b)(i) of the Act. Before the trial Court as the appellant denied the charge framed against him, to establish the guilt against the appellant, the prosecution examined four witnesses and also marked Exts. P1 to P7, M.O. 1 and M.O. 2 series on their side. The learned Sessions Judge (Special Judge) on examining the evidence, both oral and documentary, came to the conclusion that the appellant has committed an offence under S. 43 of the N.D.P.S. Act punishable under Ss. 20(b)(i) of the Act and sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of Rs. 1000/- in default of payment of fine he shall undergo a further imprisonment for two months. He shall also set off the period already undergone by the appellant in the jail towards the sentence of imprisonment, under S. 428 of the Cr.P.C. Now the above conviction and sentence rendered by the Sessions Judge are being challenged in this appeal. The point for consideration is whether the conviction and sentence recorded by the Sessions Judge can be sustained or not.

3. The learned Counsel appearing for the appellant advanced his argument that as per the prosecution case the offence said to have been committed by the appellant comes under S. 42 of the Act, in accordance with which the information received by the police officer or any other officer empowered under the Act shall reduce the information into writing and send one copy of the same without delay to his immediate superior of