JUDGMENT :

1. The appellant was the accused in S.C.No.12 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”). He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/-, failing which to undergo rigorous imprisonment for a further period of three months. The legality and propriety of the said judgment are under challenge in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973.

2. The appellant stood trial on a charge that at about 11.15 a.m. on 28.07.2006, he was found transporting 1.1 kgs. of Ganja in a bag carrying in a scooter bearing Reg.No.KL-13-D-4468, which he was riding from Kannur Government Hospital to Thayyil.

3. The Special Court recorded evidence of PWs.1 to 7 and marked Exts.P1 to P11. MOs.1 to 8 were the objects identified. During the examination of the appellant under Section 313(1)(b) of Cr.P.C., apart from denying all the incriminating circumstances that appeared in evidence against him, he set up a defence that he was a pedestrian having no connection with the scooter or the contraband seized by PW3 and that he was falsely implicated in the case. The Special Judge did not accept the case of the defence, but held that the prosecution proved beyond doubt the guilt of the accused.

4. As per the order dated 24.01.2008, the sentence imposed on the appellant was suspended and he was granted bail. The appeal was admitted to file on the same day.

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

6. The learned counsel appearing for the appellant would contend that this is a case where not only evidence is lacking to prove complicity of the appellant with the alleged crime, but also there is a slew of procedural infirmities in the case of the prosecution. PWs.3 and 4 are the witnesses, who spoke about the seizure of the contraband and the arrest of the accused. Although PWs.1 and 2 were examined to prove the incident, they did not support the case of the prosecution by deposing that they did not see the arrest of the accused or seizure of anything from his possession. They only had stated before the court that while riding on a motorcycle they were asked by the police to stop at the place of occurrence and as required by the police personnel, they had signed Ext.P1 mahazar. Thus, the independent witnesses cited by the prosecution took a stand that they did not witness the appellant riding the motorcycle carrying the contraband or the seizure. The appellant would contend that the evidence of PWs.3 and 4 is insufficient, in the absence of any independent evidence, to establish the complicity of the appellant, especially, in the light of the procedural lapses.

7. The procedural lapses pointed out are that,-

(i) Ext.P4 arrest memo does not contain signature of any witness, and the process of arrest thereby violated the provisions of Section 41-B of the Code;

(ii) the contraband was weighed using a balance taken from a nearby shop, which is not a duly certified one;

(iii) no sample from the Ganja allegedly found in the pocket of the pant worn by the appellant was taken;

(iv) the scooter was not produced in court;

(v) Ext.P2 report sent under Section 42(2) of the NDPS Act does not satisfy the statutory requirement inasmuch as it does not contain reasons supporting the satisfaction of PW3, requiring him to have a search; and

(vi) Provisions of Section 50 of the NDPS Act are not complied with.

8. PW3 deposed in detail regarding the circumstances under which he happened to search the person of the appellant and also the scooter driven by him. He got reliable information regarding transportation of Ganja and it was on the basis of that information, he went to the place of occurrence. He deposed that he had entered the information