IMPORTANT POINTS" Prosecution has not proved compliance of the statutory requirements under Ss.42, 50 and 57 of the NDPS Act, or that there is evidence proving non-compliance of these provisions. Non-compliance of such mandatory requirements will constitute legal infirmities affecting the whole prosecution case- When such infirmities are there, the accused cannot be found guilty or convicted, whatever be the nature or the volume of evidence on factual aspects.
" There is no explanation why the Detecting officer did not send the required report to his immediate official superior, or how the Circle Inspector who took over investigation happened to send such a report to the Assistant Excise Commissioner-Gross non-compliance of the mandatory provisions of S.57 of the NDPS Act.

The appellant in Crl.Appeal No.126 of 2016 is the first accused in S.C.(NDPS) No.39 of 2015 of the Special Court for the trial of NDPS Act cases, Thodupuzha, and the appellant in Crl.Appeal No.894 of 2016 is the second accused therein. They challenge the conviction and sentence against them under S.20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

2. The prosecution case is that when the Excise Inspector of the Narcotic Special Squad, Adimali searched the house of the first accused on 29.8.2014 on the basis of secret reliable information, the first accused was found possessing 1.425 Kgs of dried ganja at the kitchen of his house, and the second accused was also seen there examining the quality of ganja as the person who came there to purchase ganja from the first accused. The Excise Inspector arrested the two accused on the spot, and seized the quantity of ganja as per a mahazar. On the basis of the arrest and seizure, he registered the crime and occurrence report, and investigation was taken over by a Circle Inspector of Excise. Another Circle Inspector of Excise of the Squad closed the investigation, and submitted final report in Court.

3. The two accused pleaded not guilty to the charge framed against them by the trial court under S.20(b)(ii)(B) of the NDPS Act, and claimed to be tried. The prosecution examined seven witnesses, and proved Exts.P1 to P17 documents in the trial court. Both the accused denied the incriminating circumstances, when examined under S.313 Cr.P.C. The second accused projected a defence that he has nothing to do with the ganja, and that he had not at any time come to purchase ganja from the first accused. The first accused projected a defence that he has no connection with the house searched by the Excise Inspector. In defence, the accused examined a witness as DW1, and proved Exts.D1 and D2 documents. The MO1 and MO2 properties were also identified during trial.

4. On an appreciation of the evidence, the trial court found both the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.50,000/-each under S.20(b)(ii)(B) of the NDPS Act. Aggrieved by the judgment of conviction dated 28.1.2016, the two accused have come up in appeal. The two appeals were heard together, and are being disposed of by this common judgment.

5. On hearing both sides, and on a perusal of the materials, I find that there is no satisfactory evidence or material as against the 2nd accused except that he was also seen at the house of the 1st accused, who was found possessing some quantity of ganja, and that even as regards the 1st accused, things are doubtful and that there are some legal infirmities, the benefit of which must go to the 1st accused.

6. This is a case where some quantity of ganja was seized by an Excise Inspector on search at the house of the 1st accused. PW5 is the Excise Inspector, who detected the offence, PW4 is the Excise Circle Inspector who conducted investigation, and PW7 is the Circle Inspector of Excise who closed the investigation and submitted final report. The main evidence in this case is that of PW5. Regarding the compliance of the statutory requirements also, the main evidence is that of PW5. Two independent witnesses examined by the prosecution as PW1 and PW2 turned hostile. They did not in any manner support the prosecution. PW6 is the Assistant Excise Commissioner examined to prove the reports under Ss.42 and 57 of the NDPS Act.

7. The evidence of PW5 as against the 2nd accused is only that when he reached the house of the 1st accused for search, he saw the 2nd accused also there examining the ganja kept by the 1st accused at the kitchen. It is not known why or on the basis of what material, PW5 would say that the 2nd accused came at the house of the 1st accused for purchasing ganja. If at all, it is true that he had come there for the purpose of purchasing some quantity of ganja, that itself ca