The appellant is the 2^nd accused in S.C.

No.23/2009 disposed by the Additional Sessions

Judge/Special Judge for the Trial of NDPS Act

cases Thodupuzha as per the judgment dated

18.01.2010. The gist of the prosecution

allegations is that the appellant along with

the three other accused persons alleged to

have committed offence punishable under

Section 20(b)(ii)B of NDPS Act. The

prosecution allegation is that the Police

Officer is found a pick-up van No.KL 06 C 228

in a suspicious circumstances and they stopped

the vehicle and according to the prosecution

the accused No.2 who is travelled in the

vehicle, ran away from the place of occurrence

and on search they found 7 packets of dried

Ganja of 2 Kgs which were hidden between the

CRL.APPL.No.120/2010 3

Engine and the Bonnet. According to the

prosecution, after complying all formalities

they have seized the articles and the accused

No.1 was arrested from the spot.

2.

After investigation, the final report

was submitted before the court below and the

learned Sessions Judge has taken cognizance as

S.C. (NDPS) No.23/2009.

3.

During the trial, prosecution has

examined PW1 to PW16 to prove the prosecution

case and marked Ext.P1 to Ext.P22 as the

prosecution exhibits and MO1 to MO9 were also

marked. On the side of defence, the accused

was examined as DW1. After trial, the accused

Nos. 1 and 2 were found guilty for offence

punishable under Sections 20(b)(ii)B and 29(1)

of NDPS Act and they were convicted and

sentenced to undergo RI for five years each

and a fine of Rs.10,000/- each in default to

CRL.APPL.No.120/2010 4

undergo RI for three months under Section

20(b)(ii)and 29(1) of NDPS Act. Highly

aggrieved by the conviction and sentence, this

appeal has been preferred by the 2^nd accused

therein, who is the appellant herein.

4.

According to the appellant herein, the

trial court was heavily relied on the evidence

of the interest of testimony of official

witness to convict the appellant. The identity

of this appellant was not properly established

by the prosecution. The prosecution has

miserably failed to prove the detection,

search, seizure, sampling, sealing and

labeling done by the officials. The

prosecution has not produced any material to

substantiate the search and seizure of the

contraband from the vehicle. The court below

ought to have found that even if, Ext.P9 and

Ext.P10 were accepted for the sake of

CRL.APPL.No.120/2010 5

argument, it is not enough to prove the

complicity of the accused. On the ground as

urged above the appellant prays of setting

aside the judgment and conviction of the court

below and sought for acquittal of the accused.

5.

Now the question to be considered is

whether the finding of the court below that

the appellant/2^nd accused is guilty of offence

under Sections 20(b)(ii)and 29(1) of NDPS Act.

6.

The definite case of the prosecution is

that the accused four in numbers including

appellant herein alleged to have committed

offence punishable under Sections 20(b)(ii)and

29(1) of NDPS Act. As per the final report, on

06-12-2007 at about 6 pm at Adappoothazham in

Kumaramangalam Village CW26 found A1 and A2 in

possession of 14 kgs of dried Ganja

transporting in a pick-up van owned by the 1^st

accused bearing No.KL 06 C 228 hiding in

CRL.APPL.No.120/2010 6

between the engine and the bonnet which was

entrusted with them by the 3^rd accused, who has

kept it in his residence situated in the

property comprised in Sy.No.195/82 85-1 195/28

in Rajakkadu Village to handover the same to

the 4^th accused, who was a previous convict in

an NDPS case and in that the accused were

alleged to have committed the above offence.

7.

According

to

the

prosecution,

PW16(CW26) along with PW1(CW3) and other

Police officials were on petrol duty found a

pick-up van No.KL 06 C 228 in a suspicious

circumstances