The main legal point established in the judgment is the interpretation of S.80 of the Act, which clarifies the relationship between the provisions of the Drugs Act and the N.D.P.S. Act, and the applicability of the procedure for taking and sending samples for analysis.

The first accused in Sessions Case 165 of 1991 before Sessions Court, Thodupuzha is the appellant. Along with the second accused. He was charged for the offence under S.20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act (for short the act). The prosecution case is that the accused persons along with one Kuttappan were found cultivating 1089 cannabis plants which were aged about 5 months in an area of about 2 acres of revenue land at Pappanpara Thavalam in Chathurangappara Village. The Circle Inspector of Police Nedumkandam along with a police party proceeded to that place on getting credible information that illicit cannabis cultivation was seen at Pappanpara Bhagoni at about 4p.m. on 2-1-1990. The police party reached the place, found the cultivation and the two accused persons and one Kultappan watering, manuring and doing spade work (here. On seeing the police party all the three person attempted to escape. The second accused and Kuttappan succeeded in their attempt. But appellant, the first accused was nabbed by the police. Three cannabis plants were plucked by Pw-2 and taken into custody and the remaining plants were destroyed. The sample ganja plants were forwarded to judicial First Class Magistrate, Nedumkandam which on analysis was found to be genuine ganja plants known as cannabis saliva. The first accused who had been arrested by the police was also produced before court. The second accused surrendered before the Magistrate. Charge sheet was laid after completion of investigation. The court below framed charge against both the accused under S.2(a)(i) of the Act. After trial the court found the first accused guilty of the offence, convicted him and sentenced him to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 25,000/- and on default to pay the fine to undergo R.I. for another period of one year. The second accused was found not guilty and acquitted. The first accused has come up in appeal.

2. Heard counsel for appellant and Public Prosecutor.

3. The conviction and sentence arc assailed on various grounds. The grounds raised are:

i) The provisions of the Drugs and Cosmetics Act, 1940 and the Rules framed thereunder had not been followed.

ii) The property from where the ganja plants were taken has not been proved to be either owned or possessed by appellant.

iii) There is violation of the mandatory provision contained in S.42(1) of the Act. iv) The trial is vitiated on account of the committal of the case by the Magistrate.

4. The main contention advanced by Sri. Prabhakaran, learned counsel for the appellant is based on S.80 of the Act which reads:

"The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder".

According to counsel the provisions of the Drugs and Cosmetics Act (Drugs Act for short) are incorporated into the N.D.P.S. Act by reference into the later Act and the provisions of the Drugs Act had thus become part and parcel of the N.D.P.S. Act as if they had been bodily transposed into it. Attention is drawn to the following statement made by Lord Esher M.R. quoted by G.P. Singh in "Principles of Statutory Interpretation". The statement reads:

"If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act as if they had been actually written in it with the pen, or printed in it".

5. In the light of the principle referred to in the foregoing paragraph three aspects arise for consideration.

i) What is meant by live phrases "in addition to" and "not in derogation of contained in S.80 of the

Act?

ii) Is there an incorporate in of the provisions of the Drugs Act into the N.D.P.S. Act?

iii) Are the officers authorised or empowered under the N.D.P.S. Act bound to comply with the provisions of the Drugs Act? .

6. The Act does not conta