IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

TUESDAY, THE 8^TH DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 CRL.A NO. 2466 OF 2006 AGAINST THE ORDER/JUDGMENT IN SC 11/2006 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA APPELLANT/ACCUSED:

RAJU @ WILSON, S/O.KUTTAPPAN, THOMBILTHARAYIL HOUSE, AMBALAMEDU KARA, THANKAMANI VILLAGE.

BY ADVS.

GEORGE MATHEW PRAVEEN S.

ELSA DENNY PINDIS M.D.SASIKUMARAN SUNIL KUMAR A.G DIPU JAMES MATHEW K.T. GEORGE K.V.

STEPHY K REGI RESPONDENT/COMPLAINANT:

STATE OF KERALA, C.I. OF POLICE, KATTAPPANA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

ADV. SUDHEER GOPALAKRISHANAN – PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

24.02.2022, THE COURT ON 08.03.2022 DELIVERED THE FOLLOWING:

J U D G M E N T

The appellant herein is the accused in S.C (NDPS) 11 of

2006 on the file of the Special Judge for NDPS Act cases, Thodupuzha. The aforesaid case arises from Crime No.430 of 2005 of Kattappana Police Station, which was registered against the appellant/accused for the offences punishable under Section 20(a) (1) of Narcotic Drugs and Psychotropic Substances (NDPS) Act.

2. The prosecution case in brief is as follows:

On 17.05.2005, upon getting information regarding the cultivation of ganja in the property of the appellant, the Sub Inspector of Police, Kattappana along with his police party conducted an inspection in the premises of the appellant at 12.00 noon on 17.12.2005. During the course of the said inspection, it was found that the appellant was cultivating 12 plants of ganja in his property and another four plants in gunny bags placed in his property. At the relevant time the appellant was found watering the said plants. On the basis of the same, the appellant was arrested, articles seized and out of the plants seized three plants were taken as sample which were properly sealed. The remaining plants were destroyed by burning. Later, the appellant was brought to the police station and crime was registered. The appellant was produced before the learned Magistrate. On the basis of the same, an investigation was conducted by the police and upon completion thereof, final report was submitted before the Court concerned and the trial conducted.

3. In support of prosecution case, PWs 1 to 13 were examined, Exts.P1 to P28 were marked and the sample plants seized from the premises were marked as MO1 series. After closure of prosecution case, the appellant was examined under Section 313 Cr.P.C. and the incriminating materials brought out during the course of trial were put to him. He denied the same and pleaded innocence. In support of his case, the appellant examined DW1.

4. After appreciating the materials available on record, the Sessions Court arrived at the conclusion that the appellant is guilty of offence punishable under Section 20 (a) (1) of NDPS Act. Consequently, he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.25,000/- with a default sentence to undergo rigorous imprisonment for six months. This appeal is filed by the appellant challenging the aforesaid order of conviction and sentence.

5. Heard Sri.S.Praveen, learned counsel appearing for the appellant and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State.

6. The learned counsel for the appellant would contend that the prosecution failed to establish the guilt of the accused and the mandatory stipulations contained in NDPS Act has not been followed. It is pointed out that, even though a report as contemplated under Section 42 of NDPS Act has been marked as Ext.P2, there is nothing on record to indicate that the same was forwarded to the superior officer of PW1. In the absence of the same, the entire prosecution is vitiated as there is no proper compliance of the statutory stipulation. It was also pointed out that, the prosecution failed to prove the possession of the property by the appellant, from which the articles were s