A.K. Asharaf S/o Usman v. State of Kerala

Crl.Appeal No.936/2005 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942** ## **CRL.A.No.936 OF 2005** **AGAINST THE ORDER/JUDGMENT IN OTHERS 125/2004 DATED 26-05-2005 OF SPECIAL COURT (NDPS ACT CASES), VADAKARA** ## **APPELLANT/ACCUSED:** **A.K.ASHARAF S/O USMAN,ARABINTAVIDA HOUSE, PERINGATHUR,, PULLUKKARA, PANOOR.** **BY ADVS. SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENT/RESPONDENT:** **STATE OF KERALA CIRCLE INSPECTOR OF POLICE, PANOOR), REPRESENTED BY PUBLIC, PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-112020, THE COURT ON 11-11-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.936/2005 2 ## **JUDGMENT** ## **Dated this the 11[th] day of November 2020** The appellant is the accused in S.C. No. 125/2004 on the file of the Special Judge (NDPS Act Cases) Vatakara. The above case is chargesheeted against the appellant alleging offences punishable under Sections 20(b) (ii) (B) of the Narcotic Drugs Psychotropic Substances Act (for short NDPS Act). 2. The prosecution case is that on 19.1.2004 at 8.30 P.M., the accused was found in possession of 1.300 Kg Ganja meant for sale, in house No.VI/348 at Pullookkara in Peringathoor amsom. The said house was searched by the Additional Sub Inspector of Police, Chokli on the basis of secret reliable information. The said Ganja was seized by the Sub Inspector from the said house as per a search list. The admitted prosecution case is that the accused could not be arrested on the spot because he ran away and escaped on seeing the policemen. 3. To substantiate the case the prosecution examined PW1 to Crl.Appeal No.936/2005 3 PW12. Exts.P1 to P15 are marked on the side of the prosecution. M.O.1 to M.O.3 are the material object. Going through the evidence and documents, the trial court found that the accused committed the offence under Section 20(b) (ii) (B) of the NDPS Act. He is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for another period of six months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 4. Heard the counsel for the appellant and the learned Public Prosecutor. 5. The counsel for the appellant submitted that even if the entire prosecution case is accepted in toto, the offence under Section 20(b)(ii) (B) of the NDPS Act is not attracted. The admitted case of the prosecution is that the house belongs to the mother of the accused. According to the prosecution, the original owner of the house was PW5 and he transferred the house to the mother of the accused. The mother of the accused is not examined. But the father of the accused is examined. PW7 deposed that the accused occasionally used to come to the Crl.Appeal No.936/2005 4 house. The counsel submitted that the trial court convicted the accused based on the evidence that the accused ran away from the house and there is evidence from the father of the accused that the accused occasionally used to come in the house. The counsel submitted that, if this evidence is accepted in toto, it cannot be said that the accused was in conscious possession of the contraband article. The counsel submitted that the accused is entitled the benefit of doubt. 6. The Public Prosecutor submitted that this is a case in which there is oral and documentary evidence to prove that the accused was in conscious possession of the contraband article. The Public Prosecutor submitted that the detecting officer identified the accused and he ran away from the place. That itself is a circumstance to prove that the accused was in conscious possession of the contraband article. The Public Prosecutor submitted that the trial court after considering the entire oral and documentary evidence came to the definite conclusion that the accused committed the offence. The Public Prosecutor submitted that there is nothing to interfere with the conviction and sentence imposed by the trial court. Crl.Appeal No.936/2005 5 7. Altogether 12 witnesses were examined by the prosecution. PW1 is the detecting officer and PW6 is the officer accompanied PW1. According to prosecution, the detecting officer received reliable information that the accused is in possession of Ganja. They searched the house No.VI/348 of Pullookkara within Peringalam Grama Panchayat. A perusal of Ext.P2 shows that the detecting officer and others searched house No.VI/348 on 19.1.2004. The accused ran away from the place. Thereafter, the detecting officer in the presence of witnesses searched the house. According to the detecting officer, from the bed room, a plastic bucket was seen. When the plastic bucket was searched, a black polythene cover was seen in which Ganja was there. The Ganja was weighed and it was 1.300 Kg. Accordingly, as per Ext.P2 search list, the Ganja was seized. The prosecution examined PW5, PW7 and PW10 to prove the ownership of the house. PW5 is the former owner of the house bearing No.VI/348 in Pullookkara at Peringalam Grama Panchayat. He deposed that he assigned the property to the wife of PW7. PW7 also deposed that as per Ext.P7, his wife obtained the property including the building No.VI/348 within the Peringalam Grama Panchayat. The Secretary, Peringalam Grama Panchayat was Crl.Appeal No.936/2005 6 examined as PW10. Through him Ext.P10 residential certificate was marked. A perusal of Ext.P10 residential certificate will show that the building No.VI/348 is in the name of K.Balan who is examined as PW5. The explanation of the prosecution is that even though assignment deed is executed, in the records of the Grama Panchayat, the name of the owner is not changed. PW7 is the father of the accused. He specifically stated that he and his wife with children are residing in the house. It is also stated that occasionally the accused used to come to the house. 8. The trial court convicted the accused based on the evidence of PW7 that the accused used to come to the house occasionally. The trial court also relied on the evidence of the detecting officer that the accused ran away from the place when he saw the police. These are the circumstances relied by the lower court to believe that the accused committed the offence under Section 20 (b) (ii)(B) of the NDPS Act. I cannot agree with the above finding of the trial court. To prove the conscious possession of the contraband article, something more is necessary. Simply because, there is evidence of PW7 that the accused used to come to the house occasionally, that is not enough to prove that the accused was in conscious possession of the contraband article. Crl.Appeal No.936/2005 7 Moreover, PW5 is the original owner of the property. The document produced by the Panchayat Secretary which was marked as Ext.P10 will show that the owner of the property is K.Balan who is examined as PW5. Moreover, the evidence of PW7 will also show that he along with his wife and children are residing in the house and the accused also used to come there occasionally. Therefore, the members of the house are the father, mother and their children. The case of PW7 is that the accused occasionally come to the house and in such situation, this Court cannot conclude that the accused was in conscious possession of the contraband article seized by the detecting officer. This point is considered by this Court in the judgment dated 9.10.2020 in Crl.Appeal No.239/05. Paragraph 9 and 10 are extracted hereunder. “9. The prosecution case is that the contraband articles were seized from the backside of the house of the appellant with bearing No.13/563. According to the prosecution, the appellant was present in the house. Whether the appellant is in conscious possession of the property is a question to be decided in this case. This Court in Ravi's case (supra) considered this point. The relevant paragraphs are extracted hereunder: “22. Thus, it will be clear that only because of an article is found kept or stored in a building or house, the owner or occupier of such building cannot be said to have 'stored' the article, nor can it be said that he is in Crl.Appeal No.936/2005 8 'possession' of such article. There is also no presumption either on facts or in law that an article which is seen kept or stored in a building or house is 'stored' or 'possessed' by the owner or occupier of the building. Even if owner or occupier of the house was present in the house at the time of seizure, he cannot be presumed to be in possession of the article or stored the same. 24. Thus, the question whether a person 'stored' the article which is found kept in his house, or whether he is in 'possession' of such article does not depend merely on ownership or possession of the house. An owner or occupier of the building or house cannot be held liable for 'storing' or for 'possession' of such article, for the sole reason that he is the owner or occupier of the building or house.” 10. In the light of the above dictum that simply because some contraband articles seized near the house of the appellant, there is no presumption that the accused was in possession of the same. In this case, the prosecution only adduced evidence to the effect that the appellant was present in the house and certain contraband articles seized near to his house. In such situation, I am difficult to accept the case of the prosecution that the appellant was in conscious possession of the contraband article especially in the light of the judgment of this Court in Ravi's case.” 9. Another circumstances relied on by the prosecution is that the accused ran away from the place. This cannot be treated as evidence. This point is also considered by this Court in **Santhosh v. State of Kerala (2007 (1) KHC 1032** ). The relevant paragraph is extracted hereunder. Crl.Appeal No.936/2005 9 “10. In short, possession simpliciter alone is proved. Of course, there is a further indication that the petitioner took to his heels when he was intercepted by the police. Many persons in this country may resort to that course when confronted by the police even while performing legitimate and legal pursuits. That circumstance, by itself, cannot lead to a ready inference even at the stage of taking cognizance that the articles in question were possessed for the purpose of illicit manufacture of liquor.” 10. There is no other evidence available in this case. In such circumstances, the accused is entitled the benefit of doubt. Hence this Crl.Appeal is allowed. Conviction and sentence imposed on the accused as per judgment dated 26.5.2005 in S.C. No.125/2004 on the file of the Special Judge (NDPS Act Cases) Vatakara is set aside. The accused is set at liberty and the bail bond if any, executed by him is cancelled. Sd/- ## **P.V.KUNHIKRISHNAN** ## **JUDGE** Al/-+