IMPORTANT POINT
The prosecution must prove its case beyond reasonable doubt in NDPS Act cases, and non-compliance with statutory provisions vitiates the trial.

JUDGMENT :

These appeals are at the instance of accused Nos.1 to 3 in CC No.5 of 2005 on the file of Special Judge for NDPS Act cases, Thodupuzha, challenging 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 24.05.2006.

2. The prosecution allegation is that, on 07.01.2002, at 4.30 a.m, while PW1, Forester attached to Kanthalloor Forest Station, was doing vehicle checking duty at Palar checkpost, along with other forest officials, KL-6-9010 jeep came from Koviloor side, and on checking, they found some packets inside the jeep, and when they realised it as ganja packets, they stopped further checking and informed PW2-Deputy Ranger, through wireless message. He came to the spot and conducted search in the jeep, from which, 13 packets of dried ganja weighing 15½ kilograms in total were seized. There were four persons in the jeep including the driver, and all of them were arrested. After taking them to Kanthalloor Forest Station, OR No.3 of 2002 was registered against them. Subsequently, on the basis of their confession statements, A4 was deleted, and three other persons were included, as accused Nos.4 to 6. Thus, final report was filed against six persons, for having committed offences punishable under Section 20(b)(ii)(B) of the NDPS Act.

3. On appearance of the accused before the Special Court, charge was framed against them under Section 20(b)(ii)(B) of the NDPS Act, to which, all of them pleaded not guilty and claimed to be tried. PWs 1 to 4 were examined, Exts. P1 to P13 were marked, and MOs 1 and 2 series were identified.

4. On closure of prosecution evidence, all the accused were questioned under Section 313 of Cr.P.C. They denied all the incriminating circumstances put to them, and pleaded innocence. According to them, they never possessed ganja and they were not arrested from the place, as alleged by the prosecution. But no defence evidence was adduced.

5. On analyzing the facts and evidence and on hearing the rival contentions from either side, the trial court found A1 to A3 guilty under Section 20(b)(ii)(B) of the NDPS Act and each of them was convicted and sentenced to undergo rigorous imprisonment for four years and fine of Rs.30,000/-, with a default sentence of rigorous imprisonment for six months.

6. Accused Nos.4 to 6 were found not guilty and they were acquitted under Section 235(1) of Cr.P.C.

7. Aggrieved by the conviction and sentence under Section 20(b)(ii)(B) of the NDPS Act, the 1st accused preferred Crl.Appeal No.1051 of 2006 and accused Nos.2 and 3 preferred Crl.Appeal No.1086 of 2006.

8. Heard learned counsel for the appellant in Crl.Appeal No.1051 of 2006 and learned State Brief Adv.Sri.Chethan Krishna R for the appellants in Crl.Appeal No.1086 of 2006. Learned Public Prosecutor advanced his arguments in both the appeals, for the respondent-State.

9. Learned State Brief submitted that PW1-Forester was not an empowered officer under Section 42 of the NDPS Act, and so he was not a competent officer to conduct search and seizure. In the case on hand, though PW1 intercepted the vehicle, the search and seizure were conducted by PW2-the Deputy Ranger of Kanthalloor Forest Office. There is no dispute with respect to the fact that, PW2-Deputy Ranger was a competent officer under Section 42 of the NDPS Act. As per S.R.O No.386/96 dated 26.04.1996, Government of Kerala empowered all officers, of and above the rank of Deputy Forest Range Officers of the Forest Department, to exercise all the powers conferred by Section 42 of the NDPS Act. So, obviously, PW2 was an empowered officer, competent to conduct search and seizure under Section 42 of the NDPS Act.

10. The next contention advanced by the appellants is that, there was violation of the statutory mandates under Sections 42(1) and 42(2) of the NDPS Act in conducting search and seizure, which will vitiate the trial.

11. Learned Public Prosecutor woul