IMPORTANT POINT
The prosecution must establish guilt beyond reasonable doubt, and strict compliance with procedural requirements and foundational facts is essential for conviction under the NDPS Act.

JUDGMENT :

The appellants are accused Nos.1 and 2 in S.C No.9 of 2007 on the file of the Special Judge, (NDPS Act Cases), Vadakara. They are challenging the conviction and sentence imposed on them for the offence under Section 20 (b)(II)(c) of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act).

2. The prosecution case is that on 20-05-2003 at 4.45 p.m, when the Excise Circle Inspector at Excise Check Post, Muthanga, inspected vehicle bearing registration No.TN-60/7595, a secret cavity was seen under the seat behind the driver seat and 23 packets containing a total 72 Kgs of ganja was seized and it is alleged that the first accused was the driver of the vehicle and the second accused was a passenger and they were found transporting the ganja and they are thereby alleged to have committed the offence as aforesaid.

3. When the accused persons appeared before the trial court, after hearing both sides, charge was framed under Section 20(b)(II)(c) of the NDPS Act and when the accused persons pleaded not guilty, PWs1 to 9 were examined, Ext.P1 to P12 and MOs 1 to 5 series were marked from the side of the prosecution. No evidence was adduced from the side of the defence. After hearing both sides and considering the oral and documentary evidence on record, the learned Special Judge as per the impugned judgment dated 31-01-2008 convicted and sentenced the accused persons to undergo Rigorous imprisonment for ten years and to pay a fine of Rs.1 Lakh each and in default of payment of fine to undergo Rigorous imprisonment for six months each for the offence under Section 20(b)(II)(c) of the NDPS Act.

4. Heard Sri.R.Anil, the learned counsel for the appellant and Sri.Sanal P.Raj, the learned Public Prosecutor for the State and perused the records.

5. The point that arises for consideration in this appeal is whether the conviction and sentence passed against the accused are legally sustainable.

6. The main contentions raised on behalf of the appellants are as follows :

(i) The trial court has not considered the statement filed by the accused under Section 233(2) Cr.P.C while appreciating the evidence of material witnesses who supported the prosecution case.

(ii) The trial court has not considered the discrepancy regarding the time of occurrence in Ext.P5 Crime and Occurrence report and Ext.P6 Report for correction of the time of occurrence in Ext.P5.

(iii) There is non-compliance of Sections 52 and 57 of the NDPS Act and the same caused prejudice to the accused and resulted in failure of justice.

(iv) No satisfactory evidence is adduced to prove the manner of sampling as well as its safe custody in tamper free condition.

(v) Admittedly, sample was taken only from one packet out of the 23 packets and there is no evidence regarding the total quantity of ganja in the packet from which the sample was taken.

7. The learned Public Prosecutor argued that the evidence of PWs1 and 2 regarding the arrest and recovery of the contraband items from the possession of the accused is credible and trustworthy and it is also pointed out that drugs like ganja can be identified by their colour, texture and smell and that Sections 52 and 57 come into operation after the arrest and seizure under the Act and even if there is no strict compliance of any of these provisions which contain procedural instructions that by itself will not invalidate the trial or the conviction.

8. PW1 deposed that he was the Excise Circle Inspector at Excise Check post, Muthanga on 20-05-2003 and that day evening while he was inspecting the vehicles coming from Karnataka side, vehicle bearing Registration No.TN60/7595 came from Karnataka side and apart from the driver, there was only one passenger and when he questioned them on suspicion their answers were contradictory and on further inspection a secret cavity was seen under the seat behind the driver seat. According to PW1 when the said secret cavity was opened, it was found that the same contained 23 packets and when the pack