Compliance with statutory provisions is essential in establishing guilt under the NDPS Act.

JUDGMENT :

P.G. AJITHKUMAR, J.

1. This is an appeal against conviction and sentence filed under Section 374 of the Code of Criminal Procedure, 1973. The 1st accused in S.C. No. 20 of 2015 on the files of the Special Court for NDPS Act, Vatakara is the appellant. He assailed the conviction and sentence for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The sentence imposed is rigorous imprisonment for three years and a fine of Rs. 15,000/- (Rupees Fifteen thousand only).

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

3. Case was originated on a complaint filed by PW-11, Excise Circle Inspector, Nilambur. PW-2 is the Excise Inspector, Kalikavu Excise Range who detected the offence. At about 8.00 p.m. on 20.12.2013, he along with his colleagues were checking vehicles near Amarambalam bridge on the Vaniyambalam-Anjam mile road. Two persons came riding the motorcycle bearing Registration No. KL38-3228. The 2nd accused was the rider and the 1st accused was on the pillion. PW-2 intercepted. Though stopped about 15 meters away, the 2nd accused soon took on his heels and ran away. The 1st accused had a plastic bag on his lap. On inspection, the bag contained 3.5 kgs of Ganja. His body was searched after giving him a notice informing him about the right to be searched before a Magistrate or a Gazetted officer and on his non insistence for the presence of a gazetted officer or a Magistrate. Nothing, except Rs.150/-, was obtained from this person. After preparing samples and necessary formalities of packing and sealing, the contraband was seized and the 2nd accused was arrested. Registration of the crime and necessary investigation were followed resulting in filing of the complaint.

4. Among PWs. 1 to 11 examined on the side of the prosecution, PW-2 and 3 are the detecting officers and the officer accompanied. PWs. 5 and 9 are witnesses to the search and seizure. Among them, PWs. 2 and 3 deposed in detail about the interception of the accused, search and the seizure. PW-5 stated that he signed Exts.P2 and P3 which are the Arrest memo, and Mahazar under which the contraband was seized at the place of occurrence. He also admitted the signatures on the seal affixed on MOs 1 and 2 which are the residue of Ganja and remnants of the samples. He is an auto rickshaw driver and stated that he voluntarily put those signatures. He however, did not identify the appellant-1st accused or the 2nd accused before the court. PW-9 on the other hand totally resiled from his statement before the investigating officer and deposed that he did not see the search or seizure. He admitted Ext.P3, but took the stand that he signed those documents at the office of the excise officer.

5. The appellant was produced before the court and also the material objects without delay. A report as contemplated in Section 57 of the NDPS Act was sent on the very next day. The sample received in the court was forwarded to the chemical examiners’ laboratory along with Ext.P9 forwarding note. The report of the chemical examiner, Ext.P18 evidences that the sample was received by the expert in an intact condition and that the sample was found to be Ganja.

6. The investigating officer had recorded the confession statement from the appellant. It is Ext.P6. The court below by placing reliance on the evidence brought on record through the witnesses to the occurrence and others as also Ext.P6 confession statement found the appellant guilty and the 2nd accused not guilty.

7. The learned counsel for the appellant would submit that the seizure is illegal for non compliance of Section 50 of the NDPS Act. It is his contention that the bag was on the lap of the appellant and therefore it was an inextricable part of his body, and hence before inspection of the said bag, provisions of Section 50 should have been complied with. The learned counsel further submitted that the bag in which the contraba