Benefit of the doubt extended to the appellant due to errors and discrepancies in the prosecution's case.

JUDGMENT

(Prayer: Criminal Appeal has been filed under Section 374 Cr.P.C., r/w 36-B of NDPS Act, 1985 to set aside the conviction and sentence rendered by the Principal Special Judge of NDPS Act, Chennai dated 27.12.2011 in C.C.No.37 of 2005 in Crime No.97 of 2004 for offence under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act and may be pleased to acquit the accused.)

1. This Criminal Appeal by the sole accused was convicted for the offence under Section 8(c) r/w 20(b) (ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “NDPS Act”)

2. The case of the prosecution is that based on specific information received by the Sub Inspector of Police, NIB CID, Chennai on 04.08.2004 at about 10.00a.m., a team of NIB headed by N.G.Kumar proceeded to Vyasarpadi, Erukkancheri High Road, Ambedkar College and kept surveillance for the person mentioned in the information, who was supposed to come there to sell ganja. At about 11.15 hours, the intercepted person was carrying ganja bag on his left shoulder, who was identified by the informant as the person, who had come to sell ganja. The said person disclosed his name as Devaraj and his residence. The local public declined to be a witness for the search procedure. Hence, in the presence of Head Constables Muruganantham and Danachezhian, the accused Devaraj was informed about his right under Section 50 of NDPS Act to opt for being searched by a Gazettted Officer or Judicial Magistrate. The accused Devaraj declined to exercise the option and said no objection for the Sub Inspector to conduct the search. Thereafter, Gunny bag carried by the accused Devaraj was opened and they found that it contains ganja and it is 15.500 kgs. From out of the lot, two samples each 50 grams was taken separately and packed in two small polythin cover and sealed. The balance 15.400 kgs of ganja kept in the gunny bag, tied and sealed and the samples and the major contraband was labelled with details.

3. PW-1 [Tr.N.G. Kumar] seized the contraband under mahazar and arrested the accused for illegal possession of ganja and narcotic drug. The arrest of the accused informed to the mother of the accused. The contraband was submitted to the Inspector under Form-95 for further proceedings. The accused was remanded to judicial custody. The detailed report of search and seizure under Section 57 of NPDS Act was forwarded to the immediate Superior, the Inspector of Police. One of the samples was sent to the Forensic Science Laboratory and the Report was confirmed as cannabinoids. Final Report was filed and the accused was charged for the offence under Section 8(c) r/w 20(b) (ii)(B) of NDPS Act.

4. To prove the charges, the prosecution examined 4 witnesses and marked 13 exhibits. 3 Material Objects were marked.

5. The trial Court on considering the evidence found the accused guilty and sentenced him to undergo 2 years RI and fine of Rs.10,000/-, in default, to undergo 3 months RI. Being aggrieved by the sentence and conviction, the present Criminal Appeal is filed.

6. The learned counsel, who filed appeal on behalf of the accused/appellant withdrew his appearance and therefore, Mr.Cibi Vishnu, was appointed by the Legal Services Authority as Legal Aid Counsel on behalf of the appellant.

7. The learned counsel appearing for the appellant submitted that the case of the prosecution bristles with infirmity and it lacks corroboration. The seizure of contraband was not supported by any public witness. When PW-1 has admitted that near the place of seizure, they were several Government Offices and shops, none of them were called to witness for the search and seizure. It is unbelievable that when the several respectful persons of the locality were available, PW-1 has called a person in the pavement running a temporary puncher shop. Ex.P1 the alleged information reduced into writing states that the accused with contraband will come to the place mentioned between 10.45 to 12.30. Whereas Ex.P2 time of offering the option under Sec