Important points:
No violation of Section 50 of the NDPS Act-The declaration given by the accused under Section 50 of the NDPS Act-No reason to interfere with the finding of the trial court about the violation of Section 50 of the NDPS Act.

JUDGMENT :

The appellant is the accused in S.C. No. 50/2004 on the file of 1st Additional District and Sessions Court, Ernakulam. The above case is chargesheeted by the Intelligence Officer, Directorate of Revenue, Kochi against the appellant alleging offence punishable under Section 8(C) read with Section 20 (B) of The Narcotic Drugs and Psychotropic Substances Act, 1985(NDPS Act for short).

2. The prosecution case is that the Officers of the Revenue Intelligence Unit found the accused in front of a closed shop, Cochin Tractors, Shop No. 1, GCDA Stadium Complex, near KSRTC bus stand, Ernakulam, in possession of 930 grams of Hashish Oil kept for sale, concealed in a carry bag, with a print on both sides as “Royal Tex”. It was on 04.01.2004. Hence it is alleged that the accused committed the offence under Section 20(B) of the NDPS Act.

3. The Court framed the charged under Section 8(c) read with Section 20 (B) of the NDPS Act.

4. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P13 are the exhibits marked on the side of the prosecution. Ext. D1 is also marked on the side of defence. MO1 to MO3 are the material objects.

5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 20 (b) of the NDPS Act.

6. Thereafter, the appellant/accused was sentenced under Section 20 (A) of the NDPS Act. He was sentenced to undergo rigorous imprisonment for a period of six months and also to pay a fine of Rs.7,000/-. In default of payment of fine, the accused was directed to undergo simple imprisonment for a further period of one month. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

7. Heard the learned counsel for the appellant and learned Standing Counsel for the Directorate of Revenue Intelligence.

8. The point for consideration in this appeal is whether the conviction and sentence imposed on the appellant by the trial court is sustainable.

9. On perusal of the court charge, in my opinion, the trial court has not correctly framed the charge. The trial court framed charge in the following manner.

“I, N. Sadanandan, B.A., L.L.B., I Additional Sessions Judge, Ernakulam hereby charge you:

V.V.Tomy, S/o Varkey Devassia Vayalil

veedu, Mullarikudi P.O., Kailasam,

Nedumkandam,

Idukki District.

as follows:-

That you accused V.V.Tomy on 4-1-2004 at about 5.30.p.m., Cws 3 to 5 the Intelligence Officers of Directorate of Revenue Intelligence Regional Unit and partly found you infront of a closed shop 'Cochin Tractors' Shop No.1, GCDA Stadium Complex, near KSRTC bus stand Ernakulam in possession of 930 grams of Hashish Oil kept concealed in a carry bag 'Royal Tex' printed on both sides.

That you, accused 1 to 4, have thereby alleged to have committed the offence punishable under Section 8(c) r/w Sec. 20(B) of the N.D.P.S.Act.

And I direct that you accused be tried for the aforesaid offence within the cognizance of this court.

Dated this the 2th day of June, 2004.”

10. It is to be noted that the respondent submitted the complaint alleging offence under Section 8 (C) read with Section 20 (B) of NDPS Act. The Section 20 of the NDPS Act, which was in existence as on the date of alleged seizure is extracted here under;

“20. Punishment for contravention in relation to cannabis plant and cannabis- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:-

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable-

(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to sub-clause (b),-

(A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which ma