Procedural non-compliance under the NDPS Act does not invalidate a conviction if substantial evidence supports the prosecution's case.

JUDGMENT :

(C.S. SUDHA, J.)

In this appeal filed under Section 374(2) Cr.P.C. the appellant who is the sole accused in S.C.(NDPS) No.15/2012 on the file of the Court of the Special Judge for Narcotic Drugs and Psychotropic Substances Act Cases, Thodupuzha, challenges the conviction entered and sentence passed against him for the offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act).

2. The prosecution case is that on 23/06/2010 at 03:20 p.m. PW4, the Excise Inspector, Excise Enforcement and Anti-narcotic Special Squad, Kottayam found the accused in possession of 29 ampules labelled Buprenorphine injection IP, Lupigesic, each ampule containing 2ml. The place of occurrence is stated to be in front of Rotary Club, Changanassery near the Bypass junction Palathara, Vazhappally kara by the side of M.C. Road. Hence as per the final report, the accused was alleged to have committed the offence punishable under Section 22(c) of the NDPS Act.

3. Crime no.5/2010, Excise Enforcement and Anti- narcotic Special Squad, Kottayam was registered by PW5, Circle Inspector, Excise Enforcement and Anti-narcotic Special Squad, Kottayam, that is, Ext.P14 crime and occurrence report when the accused, contraband and the documents prepared contemporaneously was handed over to him by PW4. PW6, the Circle Inspector, Excise Enforcement and Anti-narcotic Special Squad, Kottayam, the investigating officer in the case, conducted the investigation and on completion of investigation submitted the final report alleging the commission of the offence punishable under the above-mentioned section.

4. On appearance of the accused before the trial court, a charge under Section 22(c) of the NDPS Act was framed, read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution PW1 to PW6 were examined and Exts.P1 to P17 and MO.1 to MO.3 were marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.

6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused.

7. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 22(c) of the NDPS Act and hence sentenced him to rigorous imprisonment for 17 years and to pay a fine of Rs.1,50,000/- and in default to rigorous imprisonment for one year. Set off for the period from 23/06/2010 till 17/05/2011 and from 14/03/2013 till the date of judgment has been granted. Aggrieved, the accused has come up in appeal.

8. The only point that arises for consideration in this appeal is whether the conviction entered, and sentence passed against the appellant/accused by the trial court are sustainable or not.

9. When the matter was taken up for hearing, there was no representation for the accused. Hence Adv. Athul Paulose was appointed as State Brief. Heard both sides.

10. It was submitted by the learned counsel for the appellant/accused that there has been a total non-compliance of the mandatory provisions of Section 52A as well as Section 57 of the NDPS Act and hence the accused is entitled to be acquitted. In support of this argument, reference was made to the dictums in Union o