JUDGMENT

The appellant is the accused in S.C. No.639 of 2012 on the files of the court below. The appellant was convicted and sentenced by the court below under Section

20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act').

2. The prosecution allegation is that on 16.11.2012 at about 4.15 p.m., the appellant was found in possession of 1.6 Kg of ganja, for the purpose of sale at a place on the pathway leading to Panan Colony, Kalvathy, Fort Kochi, in contravention of the provisions of the NDPS Act.

3 . A report has been submitted by the learned senior Public Prosecutor stating that the appellant had already undergone the sentence awarded by the court below. However, since this being an appeal against the conviction and sentence passed by the court below under Section 20(b)(ii)(B) of the NDPS Act, I am inclined to dispose of the appeal on merits.

4. The offence was detected by PW4. He arrested

the appellant and seized the contraband as per Ext.P3 Seizure Mahazar. The investigating was conducted by

PW5. After completing the investigation, the final report was filed before the court below.

5. In trial, PW1 to PW5 were examined and

Exts.P1 to P20 were marked for the prosecution, besides identifying MO1 to MO3.

6. Heard.

7. The evidence of PW4 is that on 16.11.2012, he proceeded to the place of occurrence along with the police party on getting prior information. When he reached the place of occurrence at about 4.15 pm, he saw the appellant with a plastic kit in his hand. The appellant was intercepted and he was informed of his right of being searched in the presence of a Magistrate or a Gazetted Officer. On the request of the appellant, PW4 made request in this regard to PW5, who was the Circle Inspector of Police, Fort Kochi Police Station. PW5 reached the place and searched the body of PW4. Thereafter, PW4 searched the body of the appellant. The plastic kit carried by the appellant contained 1.6 Kg of ganja wrapped in a brown paper. Two samples, each of 150 ml each, had been taken from the contraband. The said samples were sealed. PW5 also supported the evidence of PW4 in all material aspects. PW3 was an independent witness, who was examined to prove the occurrence.

PW3 could identify the appellant. He also admitted his signature in the documents. However, he denied to have seen the recovery of the contraband from the appellant.

8. PW1 was the Village Officer, who prepared

Ext.P1 site plan. One of the two sample was forwarded to the laboratory by PW4 as per Ext.P19 Forwarding Note. PW2 was the Chemical Examiner, who issued Ext.P2 Certificate of Chemical Analysis, which would show that the sample analysed in the laboratory was identified to be ganja (Canabis Sativa).

9. The learned counsel for the appellant has argued that since there was inordinate and unexplained delay in producing the contraband and the sample before the court, the appellant is entitled to benefit of doubt. It has been further argued by the learned counsel for the appellant that since the seal affixed in the forwarding note was not the seal affixed on the sample, the appellant is entitled to benefit of doubt on that ground as well.

10. PW4 produced the contraband and the sample before the court. PW4, in his re-examination, stated that the contraband and the sample were produced before the court only on 28.11.2012. PW4 stated during his cross- examination that there was no specific reason for the delay in producing the contraband and the sample before the court. In this case, the seizure was effected on 16.11.2012.

Ext.P18 Property List would also show that the contraband and the sample were produced before the court only on

28.11.2012. The delay as such, is not always fatal to the prosecution case. However, if the de