JUDGMENT: The appellant was convicted by the III Additional Sessions Judge, Pondicherry in S.C.No.3 of 1993 for an offence punishable under Sec. 20(b)(i) of N.D.P.S. Act, 1985 and was sentenced to undergo R.I for 3 years and to pay a fine of Rs.5,000, in default, to undergo S.I for 6 months and hence this appeal.

2. P.W.3 - Inspector of Police, Muthialpet, Pondicherry, after receiving information from P.W.2 - Superintendent of Police, Special Branch, Pondicherry over phone, rushed to Indira Gandhi Park, Solai Nagar, Muthialpet, Pondicherry with P.W.1 and Manjini @ Krishnan and along with other police party at 3.30 p.m on 6.9.1992 and found the appellant and other accused possessing bags. After ascertaining their names and enquiring them, he was satisfied that they were selling Ganja. Therefore, he took them along with the witnesses to P.W. 2’s office at about 4.00 p.m. and in the presence of P.W.2, the appellant and others were examined and 950 grams of Ganja leaves in 378 packets found in a polythene bag was recovered from this appellant. An amount of Rs. 15.50 was also recovered from the appellant. Certain amounts of ganja were also seized from A.2 and A.3 also with which were are not concerned presently. The Mahazar has been marked as Ex.P.1, attested by P.W.1. and another witness.

3. P.W.3 thereafter took samples from the packet under Ex.P.4 Mahazar attested by P.W.1. and later took the accused to the Police Station; registered a case in Crime No. 209 of 1992. The next day he forwarded the appellant for remand. On the instructions of P.W.2, another Inspector of Police took up investigation.

4. P.W.4 took up further investigation on 28.9.92; examined P.W.1. and Manjini @ Krishnan and recorded their statements. He also received Ex.P.7 - Analyist Report from Public Health Laboratory, Pondicherry. After completing investigation, he laid final report on 5.11.1992 against the appellant and others.

5. P.W.3 - Inspector of Police, Muthialpet, Pondicherry, after receiving information, took P.W.1. who was working as Watchman in Public Works Department, Pondicherry to Indira Gandhi Park, Solai Nagar, Muthialpet. The Sub Inspector of Police and other constables also accompanied. P.W.3’s evidence that he found the appellant and others in possession of ganja was corroborated by P.W.1. an independent witness. It is the further evidence of P.W.1. that P.W.3 took them along with the accused to P.W.2, and the appellant admitted the offence before P.W.2. P.W.1. corroborates the evidence of P.W.3 regarding seizure of 950 grams of ganja in 378 packets found in polythene bag and he also corroborates recovery of an amount of Rs. 15.50. P.W.1. identifies M.O.1 series-Ganja packets and M.O.2 - series of currency notes.

6. From the evidence of P.W.1. and P.W.3, possession of ganja of 950 grams in 378 small packets kept in a polythene bag by the appellant has been proved. Insofar as the samples are concerned, according to Ex.P.7 - report, they were found to contain ganja (cannabis). Therefore, I hold that the prosecution has proved possession of ganja by the appellant as held by the learned Sessions Judge.

7. The main thrust of argument of the learned counsel appearing for the appellant is that Sec. 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 has not been properly followed, since search was not made in the presence of an independent gazetted officer. In support of his contention, he relied on a ruling of the Calcutta High Court reported in Kartick Shaw and another v. State of West Bengal (2001) 4 C.C.R. 382.

According to the learned counsel, P.W.3 taking the accused to a Gazetted Officer of the same Department is not sufficient compliance of Sec. 50 of N.D.P.S. Act. A Full Bench of Calcutta High Court in Jadunandan Roy v. State of West Bengal, (2000) C.C.R. 165 relied on in the earlier ruling held that once an option is exercised, the accused is required to be taken to the nearest Gazetted Officer or the Magistrate, but the said provision wo

Click Here to Read the rest of this document