Failure to comply with evidentiary and procedural mandates does not inherently invalidate a case unless it undermines confidence in the evidence.

JUDGMENT

In this appeal filed under Section 374(2) Cr.P.C., the appellant who is the accused in S.C. No.37 of 2010 on the file of the Court of the Special Judge (NDPS Act Cases), Vatakara, challenges the conviction entered and sentence passed against him for the offence punishable under Section 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act).

2. The prosecution case is that on 19/06/2010 at 17:00 hours, PW1, the Sub Inspector of police, Koyilandy, found the accused in possession of 4.900 kilograms of ganja in a bag. The accused was apprehended with the contraband from the public way leading to Balussery road, south of new bus stand, Koyilandy. Hence, the accused as per the final report is alleged to have committed the offences punishable under Section 8(c) read with Section 20 (b)(ii)(B) of the Act.

3. Crime No.511/2010, Koyilandy police station, that is, Ext.P5 FIR, was registered by PW1, the detecting officer. PW8, Circle Inspector, Koyilandy, was the investigating officer who on completing the investigation submitted the final report/charge sheet alleging the commission of the offences punishable under the above mentioned sections by the accused.

4. On appearance of the accused before the trial court, copies of all documents relied on by the prosecution were furnished to him. After hearing the accused, the trial court framed a charge under Section 20 (b)(ii)(B) of the Act, which was read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution, PWs 1 to 8 were examined and Exts.P1 to P15 and Mos 1 to 4 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.

6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused.

7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 20 (b)(ii)(B) of the Act and hence sentenced him to undergo ₹

rigorous imprisonment for three years and to a fine of 75,000/- and in default of payment of fine to rigorous imprisonment for one year. Set off under Section 428 Cr.P.C. has also been allowed.

Aggrieved, the accused has come up in appeal.

8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court are sustainable or not.

9. Heard both sides.

10. It is submitted by the learned counsel for the appellant/accused that the evidence on record is totally insufficient to prove the prosecution case. There is only the testimony of PWs 1 and 2, who are none other than police officials. Their testimony is not supported by any independent witnesses. There is no specimen of the seal alleged to have been affixed in the samples and the contraband in Ext.P4 seizure mahazar. PW8, the investigating officer, himself has suspicions whether the incident occurred at the place of occurrence. Hence, in these circumstances, the benefit of doubt ought to have been given to the accused and acquitted. However, the trial court grossly erred in convicting the accused, goes the argument.

Per contra

11. , the learned Public Prosecutor submitted that there is ample and sufficient evidence