Procedural violations under the NDPS Act, including failure to comply with Sections 42 and 57, can lead to the acquittal of the accused due to lack of reliable evidence.

J U D G M E N T

This appeal is at the instance of the sole accused in S.C.No. 149 of 2008 on the file of Sessions Judge, Ernakulam, challenging his conviction and sentence under Section 20 (b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act), as per judgment dated 24.11.2008.

2. The prosecution allegation is that, on 10.11.2007 at 03.35 p.m., the accused was found in possession of 1.535 kg of dry ganja, in contravention of the provisions of the NDPS Act. PW1, the Sub-Inspector of Police, Central police station Ernakulam, as directed by Assistant Commissioner of Police, reached the place of occurrence near Udaya Colony at Karshaka road, Kadavanthra, and seized the contraband from the accused which was kept in a bag. Samples were drawn from the contraband, mahazar was prepared for the seizure, and the accused was arrested. Crime No. 491 of 2007 of Kadavanthra police station was registered, and on completing investigation, charge was laid against him under Section 20 (b)(ii)(B) of the NDPS Act.

3. On appearance of the accused before the trial court, charge was framed under Section 20 (b)(ii)(B) of the NDPS Act, to which he pleaded not guilty, and claimed to be tried. PWs1 to 6 were examined, Exts.P1 to P8 were marked, and MOs 1 to 9 were identified. On closure of prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record and pleaded innocence. Exts.D1 and D2 were marked from defence side.

4. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the accused guilty under Section 20 (b)(ii)(B) of the NDPS Act, and he was convicted and sentenced to undergo rigorous imprisonment for two years, and fine of Rs.10,000/-, with a default sentence of rigorous imprisonment for three months. Aggrieved by the conviction and sentence, the accused has preferred this appeal.

5. Heard learned counsel for the appellant, and learned Public Prosecutor.

6. The challenges against the impugned judgment are manifold. Learned counsel for the appellant submitted that, the search and seizure conducted by PW1 was in violation of Section 42 (1) and 42(2) of the NDPS Act. Section 57 of the NDPS Act also has not been complied with. The delay in producing the contraband article before court, is not explained. No evidence is there as to who was in possession of the contraband, till it was produced before court or under what condition, it was kept. The seizure mahazar does not contain the specimen impression of the seal with which the sample packets were sealed. The link evidence, that the sample analyzed before the lab, was the sample drawn from the contraband seized from the possession of the accused at the place of occurrence is not proved. Learned counsel for the appellant would argue that the trial court, without taking into account these material aspects, convicted and sentenced the accused and so, the impugned judgment is liable to be set aside.

7. PW1, the Sub Inspector of Police, Central police station, Ernakulam, deposed that he was informed by Assistant Commissioner of Police, that shadow police had intercepted a person within the limits of Kadavanthara police station, and since Sub Inspector, Kadavanthara, was on leave, he was directed to proceed to that place for appropriate action. Ext.P2 seizure mahazar will show that, the shadow police informed the Assistant Commissioner of Police that, on suspicion, they prevented one Mr.Sivakumar, and on examining the bag which was found in his possession, they realized that it contained dry Ganja. That information was passed on to PW1 by the Assistant Commissioner of Police. So, before proceeding to the place of occurrence, PW1 was having reliable information, that Mr.Sivakumar was possessing dry Ganja. If so, PW1 ought to have recorded the information received by him and copy of the same could have been forwarded to his immediate s