Full Judgment
M.R. Hariharan Nair, J.
1. The challenge in the appeal is with regard to the conviction entered against theappellant, who was the accused in S.C. No. 198/2000 of the Special Court for the trialof the NDPS Act Cases, Vadakara, for the offence under Section 20(b)(i) of the NDPSAct and the sentence of rigorous imprisonment for 18 months and fine or Rs. 10,000/- (indefault, simple imprisonment for 9 months) imposed therefor.
2. The prosecution case that at about 3.10 p.m. on 23.9.199 PW.1, who was theSub Inspector of Koylandy Police Station, in the course of his patrol, found the accusedstanding near the Koilandy Girls High School Junction; that on seeing the police party,the accused tried to run away; that he was chased and apprehended and that theaccused then revealed the contents of the bag held by him as ganja when it wasopened on instructions from PW.1, found acceptance by the trial court as it wascorroborated by PW.2, who is an independent witness, and also by the contents ofExt.P1 seizure mahazar and Ext.P12 FIR.
3. The appellant was represented by Advocate Sri. V.G. Gopu engaged on Statebrief. It is stated that the appellant is still undergoing imprisonment as directed in the judgment under appeal.
4. The learned counsel for the appellant submitted that the conviction isunsustainable for m ore than one reason. According to him, PW.1, is incompetent toeffect the search and seizure in so far as he was not the S.H.O. of the Station. It isalso pointed out that there is violation of a mandatory provision viz. Section 50 of the NDPSAct.
5. On the arguments advanced in the case, the points that arise for decision are:
(1) Whether the search was by a competent official?
(2) Whether there is sufficient evidence to conclude that the accused was found inpossession of 255 grams of ganja as alleged?
(3) Whether there is violation of Section 50 of the NDPS Act entitling the accused to get anacquittal?
(4) Reliefs and costs.
6. Point No. 1:- It is seen form the evidence of PW.1 that as on the date ofoccurrence viz. 23.9.1999, he was the Sub Inspector of Police, Koyilandy. The argumentof the learned counsel for the appellant that in the absence of proof that he wasS.H.O. of the Station he was incompetent to make the search is built upon the decision has beenin Souminin v. State of Kerala (2001 (2) KLT 546). The said decision has beenoverruled by a Bench of this Court in the decision in Sasi v. State of Kerala (2001)(3) KLT 396). It was further found that all officers of the rank of Sub Inspector of Policeare competent to effect search and seizure under Section 42 of the NDPS Act as far as thisState is concerned. The defence contention based on Soumini's case (2001 (2) KLT546). has therefore to fail.
7. Point No. 2:- PW. 1 has deposed that on seeing the police party led by himwhile near Girls High School Junction at about 3.10 p.m. on 23.9.1999, the accused,who was walking along the western side of the road, turned back and ran away. Hewas chased in the police jeep to some distance and could be apprehended when he felldown. Thereafter, he was questioned and asked about the contents of the bag held byhim. The accused did not answer. He was then directed to open the bag and to revealthe contents. There was a back plastic packet inside the bag. On further directionsfrom P.W. 1, the said packet was also opened and it was found that there was dryganja therein. P.W. 1 thereafter wanted to make a body search to see whether anyfurther contraband was concealed on his body. At that stage the accused was alertedabout his right under Section 50 of the NDPS Act and his option asked for. On the negativeanswer given by the accused, his body was searched by PW.1 himself; but nothingwas found concealed on his body. PW. 1 also about the procedural formalitiesfollowed by him in the matter of preparing the samples, seizure mahazar and the like.The above evidence of PW. 1 is sufficiently corroborated by PW. 2, who is anindependent witness. According to him, while he was going along with one Sasitowards Koyilandy, he saw that the accused had been kept under detention West ofBalakrishna Mandiram and East of the Railway Station. When he went over to thatspot, he saw the accused opening the bag held by him and revealing its contentspursuant to the directions from P.W. 1. The Sub Inspector after verifying the contents,stated that it was ganja. P.W. 2 also gave details of the procedural formalities followedby P.W. 1 in the matter of his asking for option of the accused regarding body searchand of the negative answer given by the accused. He has also supported P.W. 1 in thematter of evidence relating to preparation of samples and seizure mahazar etc.
8. The learned counsel for the appellant submits that the evidence of the twowitnesses is unacceptable in view of the contradiction appearing between their versionsin the matter of the time taken for completing the formalities. P.W. 2 stated that it tookmore than half an hour for the steps to be completed, whereas PW. 1 stated that it tookabout 1 1/2 hours. I do not think that this discrepancy is sufficient to reject the evidenceof these witnesses. It is pertinent in this regard that even P.W. 2 stated that he wasavailable at the spot until P.W. 1 left the place on completion of the procedural formalities.The sampling, preparation of mahazar etc., is bound to take considerable time andP.W. 2 may not be correct in his statement that the whole procedure was completed inhalf an hour. Whatever that be, with regard to the material aspects, there is nocontradiction and the version of PW. 1 is fully supported by the contents ofcontemporaneous document viz., Ext. P1 seizure mahazar and Ext. P2 FIR, both ofwhich have reached the trial court on the very next day of the occurrence. Thefinding of the trial court that the accused was found in possession of 255 grams of thematerial which on examination by the expert was found to be genuine gania as certifiedin Ext. P7 report has therefore to stand.
9. It is true that the accused was questioned about his option in the matter ofsearch only after the contraband in question had already been revealed by the accused.The appellant has a contention that even before directing the bag to be opened, P.W. 1was duty bound to alert the accused of his right under Section 50 of the N.D.P.S. Act andto call for his option. There is no merit in this contention. Jayaraj v. State of Kerala (2001 (2) KLT 936) is authority for the proposition that the requirements of Section 50 ofthe NDPS Act would come into play only when the search of a person is carried outand not in the case where it is seized from a bag by him. In the present case, onbeing asked to open the bag, the accused himself opened the bag and revealed thecontents. No body search as such was involved in the process. After finding thecontents of the bag, PW. 1 thought it fit to make a body search as well and at thatstage he followed the requirement of Section 50 of the NDPS Act. In the circumstances,I do not think that there is any procedural violation in the matter of the seizure effectedin the case.
10. Point Nos. 3 and 4:- In view of my finding on the aforesaid points theconviction entered against the appellant is not liable to be interfered with. The quantumseized is not a small quantity. When the quantum is considered, the sentence imposed,namely, rigorous imprisonment for 18 months and fine of Rs. 10,000/- also does notappear to be excessive.
The appeal, in the circumstances, is found to be without merit and it is dismissed.