Point of Law : NDPS Act – Search and seizer of Contraband - Hostility of independent witnesses was not something new to criminal court and such hostility by itself cannot deliver any advantage to the accused

JUDGMENT :

This is an appeal filed under Section 374(2) of the Code of Criminal Procedure challenging conviction and sentence imposed on the accused in S.C(NDPS).No.7 of 2005 on the file of the Special N.D.P.S Court, Thodupuzha dated 05.08.2006. Appellant is the sole accused in the above case, where State of Kerala represented by the Public Prosecutor is the respondent.

2. Heard the learned counsel for the appellant and the learned Public Prosecutor.

3. Prosecution case in nut shell is as under:

In this matter, the Sub Inspector of Police received information as to possession of ganja at the residential place of the accused and accordingly he had searched the residence of the accused in the presence of the accused on 30.07.2005 at 6.20 a.m and 31.5 kg of ganja was recovered. Accordingly, the accused was nabbed and crime No.118/2005 alleging commission of offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `NDPS Act' for short) was registered. On investigation, charge laid against the accused.

4. On appearance of the accused before the special court, after completing pre-trial formalities, charge alleging commission of offence under Section 20(b)(ii)(c) of the NDPS Act was framed and read over to the accused, to which he pleaded not guilty. As a sequel, the Special Court tried the matter. During trial, PWs 1 to 9 were examined and Exts.P1 and P21 were marked. MO1 to MO11 series were also marked.

5. The accused was questioned under Section 313(1)(b) of the Cr.P.C and the incriminating circumstances in evidence brought to his notice and his explanation was recorded. Thereafter Exts.B1 and B2 were marked on the side of the accused.

6. The learned Special Judge appraised the evidence after hearing both sides and finally found that the accused was guilty for the offence punishable under Section 20(b)(ii)(c) of the NDPS Act, thereby he was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1 lakh and in default of payment of fine, to undergo rigorous imprisonment for one more year, while granting set off.

7. The above conviction and sentence are put under challenge in this appeal. The learned counsel for the appellant pointed out a pertinent legal question in this case regarding non compliance of Section 41(2) of the NDPS Act. It is argued by the learned counsel for the appellant that as per Section 41(2) of the NDPS Act, any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. He pointed out that in this case, initially the Deputy Superintendent