IMPORTANT POINTS
The investigating officer himself, is keeping silent about the compliance of Section 42(2), it is doubtful whether the report under Section 42(2) is received by PW8-There is no presumption about the compliance of Section 42(2)-The prosecution has to prove by adducing evidence that there is a report under Section 42(2), and that is received by the superior officer- It is the fundamental duty of the prosecution to prove the case beyond reasonable doubt. As far as the mandatory provisions of NDPS Act are concerned, the oral and documentary evidence of the officer concerned is material. In this case, that is lacking-The accused is entitled benefit of the doubt.

JUDGMENT :

The above appeal is filed by the accused in SC.No.105/2004 on the file of Special Judge(NDPS) cases Vadakara.

2. The accused was charge sheeted by the Kannur City Police alleging offence punishable under Sections 20(b)(ii)(A) and 18(c) of the Narcotic Drugs and Psychotropic Substances Act. (herein after referred as NDPS Act for short)

3. The prosecution case is that on 19.9.2003 at about 12.40 p.m, the Sub Inspector of Police, Kannur City searched House No.22/45 in Ward No.22 of Kannur Municipality belonging Ayishu, who is the mother of the accused. It is the further case of the prosecution that the accused was found in possession of 395 grams of opium, and 18 grams of ganja meant for sale, as concealed in the drawer of a table kept in a bedroom of the said house. The accused was arrested by the Sub Inspector of Police, and contraband articles were seized as per a search list. The case was registered by the Sub Inspector against the accused, and the case was later investigated by Circle Inspector of Police, Kannur City. After investigation, the police submitted the final report.

4. After the appearance of the accused, the court framed a charge against the accused under Sections 17(b) and 20(b)(ii)(A) of the NDPS Act. Later charge was altered to Section 20(b)(ii)A and under Section 17(b) or alternatively under Section 18(c) of the NDPS Act. To substantiate the case, the prosecution examined PW1 to PW8. Exts.P1 to P13 are exhibits marked on the side of the prosecution. MO1 to MO9 are marked as material objects. D1 is marked as Exhibit on the side of the defence.

5. Going through the evidence and documents, the Trial Court found that the accused committed the offence punishable under Sections 20(b)(ii)(A) and 18(c) of the NDPS Act. The accused is sentenced to undergo rigorous imprisonment for six months under Section 20(b)(ii)(a) of the NDPS Acts and rigorous imprisonment for five years and to pay a fine of Rs.20,000/-(Twenty Thousand) under Section 18(c) of the NDPS Act. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for one year. Aggrieved by the convictions and sentence this Criminal Appeal is filed.

6. Heard Advocate Vipin Narayan, the counsel for the appellant and B.Jayasurya, the Public Prosecutor. The counsel for the appellant raised only one point. According to him, there is a violation of Section 42(2) of the NDPS Act, and hence he is entitled to the benefit of the doubt. According to the counsel, even though the prosecution produced Ext.P1, which is alleged to be a report under Section 42(2) of the NDPS Act, there is no evidence to show that the same is received by PW8, who is the superior officer of PW1 in this case. According to the counsel, the prosecution has to prove that a report prepared under Section 42(1) of the NDPS Act is received by his immediate official superior. The counsel contended that there is an intention behind section 42(2)of the NDPS Act. The counsel submitted that, unless it is proved that the report is received by the immediate official superior, it cannot be presumed by the court. The counsel also submitted that Ext.P1 is not produced along with the final report. The copy of the same is not supplied by the court to him under Section 207 Cr.PC. The counsel also submitted that the compliance of Section 42(2) of the NDPS Act is not even put to the accused as an incriminating circumstance under Section 313 of Cr.PC. In such cases, the court cannot rely on such evidence and convict the accused. It is the sum and substance of the argument of the counsel for the appellant.

7. The Public Prosecutor submitted that there is substantial compliance of Section 42(2) of the NDPS Act. The Public Prosecutor submitted that PW1 deposed before the court that he send the report to his immediate official superior. He also deposed that there is an initial of the immediate official superior of PW1 in Ext.P1. Therefore, the court can safely presume that Section 42(2) of the