Point of law: NDPS ACT – Search and seizer - Noncompliance of Section 50 NDPS Act – Entitled for acquittal.

JUDGMENT :

MARY JOSEPH, J.

1. This is a case of seizure of some prohibited properties from the possession of the appellants which in the analysis held at the Chemical Examiner’s Laboratory were identified and certified as Diazepam and Buprenorphine and they were chargesheeted by Sub Inspector of Police, Sulthanbathery for the offences punishable under Sections 22(b), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’).

2. Appellant is accused No. 2 in S.C. (NDPS) No. 70/2012 registered on the files of Special Judge (NDPS Act Cases), Vatakara (for short ‘the trial court’) on the basis of the charge-sheet laid against him.

3. The appellant faced trial. He was defended by a counsel appointed on his own and was found guilty for the offences for which charge was framed against, convicted and sentenced with rigorous imprisonment for ten years and fine of Rs. 1,00,000/- and rigorous imprisonment for six months as default sentence for an offence under Section 22(c) NDPS Act. He was also found guilty, convicted and sentenced to undergo rigorous imprisonment for eight years and pay fine of Rs. 25,000/- for an offence under Section 22(b) NDPS Act and rigorous imprisonment for three months as default sentence. Being aggrieved thereby, the appeal on hand is preferred.

4. As per the prosecution case, the seizure of the contraband was at 11.30 A.M. on 22.12.2011 on the basis of a reliable information received by the Sub Inspector of Police Sulthanbathery Police Station that some prohibited drugs are being transported by the appellant alongwith one Mr. Askaf. The reliable information obtained was recorded by the Sub Inspector in the General Diary and report of it was prepared and sent to his immediate official superior. Thereafter himself alongwith other officials of the police station proceeded to the spot and found the appellant and the other accused travelling in a motorcycle bearing Registration No. KL-12/8304. The vehicle was intercepted and Tahsildar, Sulthanbathery was called to the spot as requested by the accused and their body search was held in his presence. From the body of the first accused, 30 ampules bearing label Diazepam IP Empose and from the body of the 2nd accused 100 similar ampules and 120 ampules of Buprenorphine IP Lupigesic were seized after complying with all procedural formalities mandated by various provisions of NDPS Act and narrating those in a seizure mahazar prepared as a contemporaneous document. Both accused were arrested from the spot after duly informing them that by possessing the ampules they have committed offences punishable under the NDPS Act. Crime No. 956/2011 was registered against both accused and the investigation was proceeded with. Concluding the investigation a final report was also laid charge-sheeting them. The accused were summoned and on the basis of the materials furnished by the prosecution against them and after hearing the learned counsel representing him and the learned Public Prosecutor, charge was framed by the court alleging commission of offences punishable under Sections 22(b), 22(c) and 29 NDPS Act. First accused availed the services of a counsel appointed on legal aid and the appellant, that of a counsel engaged on his own.

5. Charge framed was read over to the accused and both of them pleaded not guilty of the offences and thereby subjected themselves for trial. Prosecution examined PWs. 1 to 7 and marked Exts.P1 to P13 and MOs 1 to 8. During examination under Section 313(1)(b) Cr.P.C. the appellant took a stand of false implication and absolute innocence. On conclusion of trial, the trial court found the appellant guilty of the offences and convicted and sentenced both of them for the offences punishable under Sections 22(b) and 22(c) NDPS Act.

6. Appeal preferred against was allowed. The judgment assailed was set aside and the case was remanded to the trial court for denovo trial to the extent of recalling and re-examining PWs. 1 and 2.

7.