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

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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

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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

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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 available to prove the

facts is only the evidence of the detecting

officer. The evidence of PW3 is that as required

by the Sub Inspector, he reached the spot of

detection, and the body of the accused was searched

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by the Sub Inspector in his presence. On body

search, nothing could be seized by the Sub

Inspector. He does not know what happened later.

He had not witnessed the seizure of anything from

the hands of the accused, and he does not know what

all things were contained in the carry bag found in

the possession of the accused. Thus, PW3 is only a

witness to