IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 1^ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 CRL.A NO. 993 OF 2023 CRIME NO.1/2016 OF KALPETTA EXCISE CIRCLE OFFICE, WAYANAD AGAINST THE JUDGMENT IN SC 291/2020 OF THE COURT OF ADDITIONAL SESSIONS JUDGE - II, KALPETTA, WAYANAD APPELLANT/ACCUSED:

MANOJ, AGED 52 YEARS S/O.VAMADEVAN, PARACKAL HOUSE, MAILAMBADI P.O, APPAD DESOM, PURAKKADI VILLEGE, SULTHAN BATHERY, WAYANAD DISTRICT-673591.

BY ADV. SUNNY MATHEW RESPONDENTS/COMPLAINANT:

1 STATE OF KERALA REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUKAM - 682031

2 EXCISE CIRCLE INSPECTOR EXCISE CIRCLE OFFICE, SULTHAN BATHERY, WAYANAD DISTRICT-673592.

BY P.P. SRI.G SUDHEER THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

“C.R.”

K.BABU, J.

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Criminal Appeal No.993 of 2023 ---------------------------------------

Dated this the 1^st day of February, 2024 JUDGMENT The appellant is the accused in S.C No.291/2020 on the file of the Additional Sessions Court-II, Kalpetta. He has been convicted under Section 20(b)(ii)(B) of the NDPS Act as per the impugned judgment.

2. The prosecution case is that on 21.04.2016 at 10.45 a.m, the accused was found in possession of 1.3 kg of dried Ganja, a narcotic drug, on the concrete road junction leading to Mailampadi Paniya colony. The accused was arrested from the place of occurrence along with the contraband substance.

3. The Investigating Officer submitted the final report. The accused appeared in response to the summons. He pleaded not guilty, and therefore, he came to be tried by the Trial Court. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P17 and MOs

1 and 2. The Trial Court found the accused guilty of the offence alleged and passed the impugned judgment of conviction and sentence.

4. Heard Sri.Sunny Mathew, the learned counsel appearing for the appellant/accused and Sri. G.Sudheer, the learned Public Prosecutor appearing for the respondents.

5. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:-

(i) The samples of the seized contraband were not drawn in the presence of the Magistrate, and the inventory of the seized contraband was not duly certified by the Magistrate.

(ii) The detecting officer ought not to have drawn the sample from the bulk quantity of the contraband substance seized at the scene of occurrence, and he should have drawn the sample in the presence of the Magistrate as provided in Section 52A of the NDPS Act.

(iii) The prosecution failed to explain what happened to the rest of the contraband after taking the sample allegedly seized from the possession of the accused.

6. The Excise Inspector, Sulthan Bathery detected the crime.

On 21.04.2016, after getting information from the Commissioner's Squad, the Excise Inspector (PW2) proceeded to the place of occurrence. He reached the Appad Mailampadi colony. He found the accused holding a plastic cover. PW2 took the plastic cover from the possession of the accused and found that it contained 1300 grams of Ganja wrapped with a newspaper. After complying with the statutory formalities, PW2 seized the contraband substance from the possession of the accused. He drew 25 grams of Ganja from the contraband seized to be used as sample. PW2 prepared Ext.P5 seizure mahazar. He wrapped the sample with a plastic cover and sealed and labelled it.

7. The learned counsel for the accused submitted that there is non-compliance with Section 52A of the NDPS Act, which vitiates the entire proceedings. The learned counsel submitted that as per sub-section (2) of Section 52-A of the NDPS Act, the detecting officer should have forwarded the contraband substance to the officer empowered under Section 53 of the NDPS Act, who shall prepare an inventory of the same. The learned counsel further contended that the sample ought to have been tak