Point of Law: Where accused is defended by a counsel, non-compliance with Section 279(1) or 281(4) of Code by itself would not render prosecution illegal. The non-compliance with Sections 279(1) or 281(4) of Code is an irregularity. Unless prejudice is caused to accused, that irregularity will not vitiate trial altogether.

JUDGMENT :

The appellant is the accused in S.C.No.5 of 2007 on the file of the Special Court (NDPS Act Cases), Vadakara. He was convicted and sentenced for an offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”). The sentence imposed was rigorous imprisonment for a period of three years and a fine of Rs.10,000/-with a default sentence of six months. The said judgment of conviction and the order of sentence are under challenge in this appeal filed under Section 374(2) of the Code of Civil Procedure, 1973.

2. The allegations against the appellant are that at about 4.35 p.m. on 01.01.2006, he was found in possession of 1.250 kg. of Ganja near the Palayam bus stand at Kozhikode, in violation of the provisions of the NDPS Act. PW1, the Sub Inspector of Police, Kasaba Police Station, on receipt of reliable information, reached the spot and caught the appellant red-handed. On a search, 1.250 kg of Ganja was found in his possession. After necessary formalities of preparation of seizure mahazar, sampling and sealing of both samples and the contraband, PW1 arrested the appellant.

3. During the trial, PWs.1 to 6 were examined and Exts.P1 to P12 were marked on the side of the prosecution. Mos.1 to 3 were identified. In the examination of the appellant under Section 313 (1)(b) of the Code, he took the stand that he was innocent and the case was foisted against him. No defence evidence was let in. The learned Special Judge did not accept the contentions raised by the appellant that he was innocent and evidence was insufficient to find him guilty. Accordingly, the appellant was convicted and sentenced.

4. On 15.02.2008, this appeal was admitted and the sentence imposed on the appellant was suspended. He was therefore directed to be released on bail on the conditions stipulated in that order.

5. Heard the learned counsel appearing for the appellant and also the learned Public Prosecutor.

6. PW1 is the detecting officer. PW2 is a police constable accompanied PW1 and witnessed the search of the person of the appellant and the seizure. PW1 while working as the Sub Inspector of Police, Kasaba Police Station, got the information that a person was selling Ganja near the bus stand at Palayam, Kozhikode. After entering the information in the General Diary and sending a report as stipulated in Section 42(2) of the NDPS Act, went to the spot. The appellant was found near the Milma booth in the premises of the bus stand at Palayam. He was informed about his right to have his person searched in the presence of a Gazetted Officer or a Magistrate. But he waived that right and endorsed so in Ext.P2 report. Accordingly, PW1 himself searched the body of the appellant, whereupon PW1 found Ganja in a plastic cover he was carrying. PW1 prepared two samples of 50 grams each from the said Ganja. The samples as well as the remaining Ganja in the possession of the appellant were packed, labeled and sealed before seizure as per Ext.P5 seizure mahazar. Recording the arrest of the appellant, PW1 has prepared Ext.P3 arrest memo and Ext.P4 inspection memo. In Ext.P3 as well as Ext.P5, signatures of witnesses were taken.

7. PW2 was the police constable who accompanied PW1. PW2 also deposed regarding the details of the search and seizure of the contraband and arrest of the accused. He is also a signatory to Ext.P5 seizure mahazar. Besides PW2, PW4 was examined by the prosecution to prove the search, seizure and arrest. He admitted that he had signed Ext.P5 at the precincts of the Palayam bus stand where he was selling newspaper. His signature in Ext.P3 as well as Ext.P5 is admitted to be that of him. He, however, denied having seen the arrest of the accused and the seizure of any object from him. Although in regard to the arrest of the accused and seizure of contraband, he did not support the case of the prosecution, his evidence would support the evidence of PWs.1 and 2 regarding the preparation of Exts.