This appeal is filed by the appellant-accused under

Section 374(2) of Cr.P.C. for setting aside the judgment and

order of conviction and sentence passed by the Principal District

and Sessions Judge, Mysuru in Spl.C.No.69/2010 dated

16.11.2011 for having found guilty, convicted and sentenced to

undergo imprisonment for a period of 5 years and to pay fine of

Rs.50,000/- for the offence punishable under Section 20(b)(i)

of Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short 'N.D.P.S. Act').

2.

Heard the learned counsel for the appellant and

learned High Court Government Pleader for the respondent-

State.

3.

The rank of the parties before the Trial Court is

retained for the sake of convenience.

4.

The case of the prosecution is that PW.9-Nagaraju,

ACP who received credible information from unknown persons

on 22.07.2010 at 10.30 a.m., that a person near the St.

Philomena's College compound, Mysore was making an attempt

to sell Ganja to the college students. On the said information,

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immediately, the ACP secured two panchas i.e., PWs.4 and 5

and went to the spot along with PWs.1 and 2, apprehended the

said persons and on enquiry, the accused person revealed his

name as Ramesh and he was in possession of a bag and the

ACP offered the option to search before the Gazetted Officer

and he also introduced himself as Gazetted Officer. The

accused gave consent to search by himself, accordingly on

search, they found 7 kg 300 grams of ganja in possession of

the accused and then, he has seized the same under

panchanama as per Ex.P.1, taken out the samples and then

prepared the complaint as per Ex.P.5 and sent the complaint

through PW.8-Ramaraju. In turn, ASI-PW.2-Ramesh received

the complaint, registered the FIR, thereafter, handed over the

investigation to PW.9 and once again, PW.9 further investigated

the matter and handed over the same to PW.6-Lolakshi. In

turn, PW.6-Police Inspector filed charge-sheet. The trial Court

took cognizance and framed the charges against the accused.

The accused denied the same, hence, the prosecution called up

to adduce the evidence. Accordingly, the prosecution examined

9 witnesses as per PWs.1 to 9 and got marked 6 documents as

per Exs.P.1 to P.6 and Material Objects as per MOs.1 to 3. After

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hearing the arguments after completion of evidence, the

statement of the accused under Section 313 of Cr.P.C. was

recorded and the case of the accused is one of the total denial

but not entered any defense. Accordingly, after hearing the

arguments, the Trial Court found the accused guilty and

convicted and sentenced to undergo imprisonment as stated

above. Being aggrieved with the same, the appellant is before

this Court.

5.

Learned counsel for the appellant strenuously

contended that PW.9-ACP has violated the mandatory provision

of Section 42 of the N.D.P.S. Act. He has visited the spot,

secured the panchas and seized the same without giving option

of search before the Gazetted Officer. Though he himself is the

Gazetted Officer, but he has not given option in writing to the

accused, thereby, he has violated the provision of Section 50 of

the N.D.P.S. Act. Even in the cross-examination, PW.9 has

stated that there was small packets containing 3 milligram of

ganja in his pocket, but he has not stated in the panchanama

and once he had a personal search, it is mandatory to follow

Section 50 of the N.D.P.S. Act and no independent witnesses

have supported except PWs.1, 2 and 9. There is no other

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independent witness supported the prosecution case. The Trial

Court has committed error in accepting the evidence and

convicting the accused. Hence, prayed for setting aside the

conviction and sentence.

6.

Per contra, learned High Court Government Pleader

supported the judgment of the Trial Court and contended that

the accused was found in possession of ganja and the same

was seized by the Investigating Officer in presence of panchas.

Though the panchas have not supported the case, but PW.1

ac