IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.UBAID TUESDAY ,THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940 CRL.A.No. 1146 of 2015 AGAINST THE ORDER/JUDGMENT IN SC 487/2012 of ADDL. D.C. &

SESSIONS COURT - VII, ERNAKULAM DATED 21-10-2015 CRIME NO. 492/2012 OF Ernakulam North Police Station , Ernakulam APPELLANT/ACCUSED:

NASSAR, S/O.ABDUL MANAF VADAKKATH HOUSE, MANAPPATTIPARAMBU, KALOOR, ERNAKULAM.

BY ADV. SRI.SANIL KUMAR RESPONDENT/COMPLAINANT:

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

OTHER PRESENT:

SRI.SANTHOSH PETER-PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON

04.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

J U D G M E N T

The appellant herein challenges the conviction and sentence against him under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act (for short “the NDPS Act”) in S.C. No. 487 of 2012 of the Court of Session, Ernakulam. He faced trial before the learned Additional Sessions Judge-VII, Ernakulam, on the allegation that at about 3.30 p.m. on 19.03.2012, he was found possessing 59 ampules of Buprenorphine injection having a total quantity of 118ml, constituting commercial quantity. The offence was detected by the Sub Inspector of Police, Ernakulam Town North Police Station, on the basis of secret reliable information. He saw the accused near the Accountant General's Office at Kaloor, Ernakulam, in suspicious circumstance, with a bag in his hands. He told the accused that he would like to search his body in the presence of a gazetted officer. As required by the accused, the Sub Inspector procured the presence of the Excise Circle Inspector, Ernakulam, and in his presence, the body of the accused was searched. Nothing could be seized on body search. When the Sub Inspector opened and examined the carry bag in his hands, he found 59 ampules of Buprenorphine injection. He arrested the accused on the spot, and seized the contraband articles. From out of the 59 ampules the Sub Inspector took 5 ampules as sample. Without delay, he produced the accused in court, but the properties were produced in court only on 17.10.2012. Investigation was taken over by the Circle Inspector. After investigation, he submitted final report in court.

2. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined four witnesses, and proved Exts.P1 to P13 documents in the trial court. The MO1 to MO4 properties were also identified during trial.

3. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., and projected a defence of total denial. In defence, he examined two witnesses as DW1 and DW2. Of them, DW1 is his mother, and DW2 is his neighbour.

4. On an appreciation of the evidence, the trial court found the accused guilty under Section 22(c) of the NDPS Act. On conviction, he was sentenced to undergo rigorous imprisonment for ten years, and to pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction dated

21.10.2015, the accused has come up in appeal.

5. On hearing both sides, and on a perusal of the materials, I find that the accused cannot be found guilty under Section 22(c) of the NDPS Act for the reason that evidence would not show that he was found in possession of commercial quantity of psychotropic substance.

6. Of the four witnesses examined in the trial court, PW2 is the Sub Inspector who detected the offence, and PW3 is the Excise Circle Inspector in whose presence the body of the accused was searched by PW2. PW4 is the Circle Inspector of Police who investigated the case. PW1 is an attestor to the seizure mahazar prepared by the detecting officer. He identified his signature in the mahazar, but he did not state anything about the seizure of any sort of drug or substance from the possession of the accused. Thus, the evidence of PW1 is of no help to the prosecution practically. Then what is av