Full Judgment
M.R. Hariharan Nair, J.
1. The appellant herein stands convicted by the Special Court for trial of NDPS Act cases, Kozhikode, for the offence punishable Under Section 20(b)(i) of the NDPS Act. He was also sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 10,000/- (in default, rigorous imprisonment for one year).
2. Sri James Mathew, who appeared for the appellant as State Brief, has submitted, at the outset, that the appellant has already suffered the full term imposed by the trial Court and that: he would, nevertheless, argue the case on the merits.
3. The learned counsel highlighted three aspects. According to him, (1) the conviction has to fail for non-compliance with the mandatory provision of Section 42 of the NDPS Act. (2) There is violation of Section 50 of the NDPS Act and as such, the accused is entitled to be acquitted. (3) There is no satisfactory evidence to find that the accused has been properly identified.
4. The contention based on Section 42 of the NDPS Act has to fail in view of the fact that the information that P.W. 1 received did not relate to the availability of the accused in a building, conveyance or enclosed place. The information was only that he was standing at the road. Section 42 of the NDPS Act cannot apply to such a fact situation. The psition is also clarified by the Supreme Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat AIR 2000 SC 821 : (2000 Cri LJ 1384). Hence the accused is not entitled to get an acquittal based on Section 42.
5. As regards compliance with Section 50, P.W. 1 deposed before Court that when the police party reached near the main gate of the office by name Vanasree soon after 12-10 p.m. on 3-6-1996, the accused, who was standing there, tried to run away from the place that he was detained and told that his body was going to be searched as possession of ganja was suspected and asked whether he required the search to be made in the presence of a Gazetted Officer or a Magistrate. He was also told of his right to be searched in the presence of any such officer. The accused's reply was that he was not in possession of any ganja and that for carrying out the search the presence of any other officer was not necessary. The learned defence counsel submits that in the absence of any corroboration, the said version cannot be believed. Here is a case where the aforesaid version of the accused finds a place in the FIR prepared immediately after the occurrence. It is seen that the FIR has also reached the Magistrate at 8-15 p.m. on the very same day. Thus, there is corroboration forthcoming from the contemporaneous record and as such, the version of P.W. 1 on the above aspect cannot be disbelieved. There is also corroboration forthcoming from P.W. 2 on the above aspect. It follows that the accused has not established that there is violation of the provisions in Section 50 of the NDPS Act.
6. As regards the aspect of identification, P.W. 3, who is a resident of the same place where the accused belongs, has deposed that he had witnessed the accused being detained at the time and place mentioned in the charge and that his body was searched after complying with the usual procedures. The cross-examination of the witness has not brought anything to suspect the version of the independent witness which affords full corroboration to the evidence of P.W. 1 and other occurrence witnesses. Hence, there is no merit with regard to the contention based on identification also.
7. I am satisfied that the Court below has proceeded to convict the accused on sufficient evidence. The sentence imposed is also reasonable and hence the appeal is dismissed.