IMPORTANT POINT
Possession of narcotics must be proven beyond reasonable doubt, and procedural safeguards under the NDPS Act are critical for valid convictions.

JUDGMENT :

(Sophy Thomas, J.) :

These appeals are at the instance of accused Nos.1 and 2 respectively in SC (NDPS) No.3 of 2006 on the file of Special Judge for NDPS Act cases, Thodupuzha against their conviction and sentence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as ‘the NDPS Act’), as per judgment dated 22.07.2006.

2. Prosecution case is that, on 06.05.2005, at about 6.45 a.m, the accused were found in possession of dried ganja concealed in their body beneath the shirt, while they were travelling in PPK bus bearing registration No.KL 7K 7003 plying in Kanthalloor-Aluva route.

3. PW1, CI of Police, Munnar, on getting secret information that two persons are transporting ganja in PPK bus, after sending that information in writing to his superior officer, proceeded to Nallathanni, and intercepted the bus and checked the passengers and their luggage along with other police officials. The accused persons were suspected of having concealed something beneath their shirt and so, PW1 and police party wanted to conduct their body search. The accused were informed of their right to be searched in presence of a gazetted officer in compliance with the provisions of Section 50 of the NDPS Act. Since the accused expressed their intention to be searched in presence of a gazetted officer, PW3 Tahsildar was asked to be present to witness their body search. On conducting their body search in presence of the Tahsildar, a pink cover containing 1½ kgs of dried ganja tied on the abdomen was seized from A1 and a pink cover containing 1 kg of dried ganja tied on the abdomen was seized from A2. On completing the procedural formalities of arrest of the accused, sampling, labeling etc., the accused were produced before Munnar Police Station where crime No.88 of 2005 was registered against them.

4. On appearance of the accused before the Special Court, charge was framed under Section 20(b)(ii)(B) of the NDPS Act. They pleaded not guilty to the charge and claimed to be tried.

5. PWs 1 to 9 were examined, Exts.P1 to P21 were marked and MOs 1 to 10 were identified, from the side of the prosecution.

6. On closure of prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. They denied all the incriminating materials brought on record, and pleaded innocence. Exts.D1 and D2 were marked from their side.

7. On analysing the facts and evidence and on hearing the rival contentions from either side, the Special Court found both the accused guilty under Section 20(b)(ii)(B) of the NDPS Act and they were convicted thereunder. They were sentenced to undergo rigorous imprisonment for five years each and to pay fine of Rs.25,000/- each with a default sentence of rigorous imprisonment for six months each. Aggrieved by the conviction and sentence, the 1st accused preferred Crl.Appeal No.1477 of 2006 and the 2nd accused preferred Crl.Appeal No.387 of 2007.

8. Heard learned counsel for the appellants and learned Public Prosecutor.

9. Learned counsel for the appellants would submit that, the accused are absolutely innocent of this crime. According to the appellants, transporting ganja in private buses plying from Marayoor, Kanthalloor etc. is a usual practice. Sometimes Police might have seized unclaimed ganja packets from PPK bus. The 1st accused who was standing in the bus stop and the 2nd accused who was travelling in that bus carrying vegetables were falsely implicated in this case.

10. Learned counsel for the 2nd accused would contend that, there was no connection between accused Nos.1 and 2 and the prosecution failed to prove any kind of conspiracy, or any common intention between them. The ganja allegedly seized from the possession of the 2nd accused was only 1kg and so he was not liable to be punished under Section 20(b)(ii)(B) of the NDPS Act and the provision applicable was Section 20(b)(ii)(A) for which the sentence prescribed as on the date of the incident i.e. 06.05.2005 was only rigorous