Compliance with Section 42 of the NDPS Act is not mandatory when recovery occurs in a public place, as per Section 43.

JUDGMENT :

(A. BADHARUDEEN, J.)

1. The sole accused in S.C. No.7/2005 on the files of the Special Court for the trial of Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter referred as ‘NDPS Act’ for short], Vadakara, has come up in appeal, challenging the conviction and sentence imposed by the Special Judge, as per the judgment dated 28.11.2006, whereby the accused was found guilty for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act and accordingly he was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.10,000/-. Further, the accused was sentenced to undergo rigorous imprisonment for a period of nine months in default of payment of fine. The State of Kerala, represented by the Public Prosecutor is arrayed as the sole respondent herein.

2. Heard the learned counsel for the appellant as well as the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the trial court.

3. Parties in this appeal shall be referred as ‘accused’ and ‘prosecution’ hereafter, for easy reference.

4. In this matter, the prosecution allegation is that, at about 04.15 p.m. on 28.01.2005, the accused was found in possession of 1.500 Kilogram of Ganja, near the Railway gate at Thekkile Peedika, Kannur, for the purpose of sale. On the basis of a secret information, the Sub Inspector, Kannur City Police reached the place of occurrence. Thereafter, in the presence of Tahsildar, on search of the bag possessed by the accused, 1.500 kilogram of Ganja was seized. After the investigation, the Sub Inspector, Kannur City Police Station has filed the Final Report.

5. After, framing charge for the offence under Section 20(b)(ii)(B) of the NDPS Act, the trial court recorded evidence and tried the matter. PWs 1 to 7 were examined and Exts.P1 to P14 and MOs 1 to 7 were marked on the side of the prosecution. After examination of the accused under Section 313(1)(b) of Cr.P.C. DWs 1 to 3 were examined and Exts.D1 to D3 were marked on the side of the accused. That apart, Ext.X1 was also marked as court exhibit.

6. On appreciation of evidence, the trial court convicted and sentenced the accused as stated hereinabove.

7. While assailing the conviction and sentence imposed by the trial court, it is argued by the learned counsel for the appellant/accused that, in this matter, Section 42 of the NDPS Act was not properly complied and Ext.P1, the information report under Section 42 and Ext.P6, detailed report under Section 57 of the NDPS Act were not produced before the trial court in time. Later, after starting examination of PW1 and deferring his further examination, those documents were produced. It is argued by the learned counsel for the appellant/accused further that, the case of the accused before the trial court is that, since Sri.Nandakumar, the Probationary Sub Inspector of Kannur City Police, who is familiar with the accused was inimical towards the accused, in the matter of not giving bribe for the purpose of cutting trees from the property of the accused, he falsely fabricated the case and implicated the accused in this crime, without support of any materials, after getting him into custody on 25.01.2005 and keeping him in detention till 28.01.2005. Ext.X1, call details in between telephone numbers of the Probationary Sub Inspector and the house of the accused is given much emphasis by the learned counsel for the accused, in this regard. Therefore, the learned counsel for the appellant/accused would submit that the accused is entitled to get acquittal, since the prosecution case is in the midst of doubts.

8. Per contra, the learned Public Prosecutor would submit that compliance of Section 42 of the NDPS Act would not arise in this case, since the recovery was from a public place, dealt under Section 43 of the NDPS Act. It is also pointed out by the learned Public Prosecutor that, by producing Ext.X1 itself, it could not be said that the Probationary Su