Narendran Purakunnel House v. State of Kerala Narcotic Enforcement Squad

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 CRL.A NO. 360 OF 2008** **AGAINST THE JUDGMENT DATED 16.02.2008 IN S.C.(NDPS) NO.8/2007 OF THE SPECIAL COURT (NDPS ACT CASES),** **THODUPUZHA** ## **APPELLANT/ACCUSED:** **NARENDRAN PURAKUNNEL HOUSE, MAMMATTIKANAM KARA, RAJAKKADU, UDUMBANCHOLA TALUK.** **BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.PRANOY K.KOTTARAM** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA NARCOTIC ENFORCEMENT SQUAD, ADIMALI, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.SANAL P. RAJ, PUBLIC PROSECUTOR.** **THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 01.07.2022, THE COURT ON 15.07.2022 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.360 of 2008 ## **JUDGMENT** The appellant was convicted and sentenced by the Special Court for trial of NDPS Act cases, Thodupuzha, for an offence punishable under Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”). He has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973, challenging his conviction and sentence. 2. The appellant was tried on the charge that he has planted seven cannabis plants on his property, at a distance of about 300 metres away from his house, which is situated at Mammattikkanam. The Circle Inspector of Narcotic Enforcement Squad, Adimaly detected the offence on 26.02.2005, whereupon, he arrested the appellant and initiated the case. 3. The Special Judge for the trial of NDPS Act cases, Thodupuzha, after framing the charge under Section 20(a)(i) of the NDPS Act held trial. PWs.1 to 6 were examined and Exts.P1 to P16 were marked on the side of the prosecution. MO1 was identified. Exts.D1 and D2 were marked on the side of the appellant. 3 ## Crl.Appeal No.360 of 2008 4. The case set forth by the appellant was that the cannabis plants were not standing on his property. He contended that from Ext.D1 and other circumstances obtained from the evidence on record, it is evident that the property where the cannabis plants were seen planted does not belong to him. The trial court did not accept the said case of the appellant. Finding that the prosecution has succeeded in proving its case, the court below convicted and sentenced the appellant as per the judgment dated 16.02.2008. 5. On 18.02.2008, this appeal was admitted. The sentence imposed on the appellant was suspended and he was granted bail, subject to the conditions contained in the order in Crl.M.A.No.1575 of 2008. 6. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor, Sri.Sanal P.Raj. 7. PW1 is the Circle Inspector of Narcotic Enforcement Squad, Adimaly, who detected the offence. On getting reliable information, he along with his subordinates went to the spot and searched the house of the appellant. His personal search also was conducted. Nothing objectionable could be found. On 4 Crl.Appeal No.360 of 2008 verification of his property, PW1 located seven cannabis plants cultivated among coffee plants. Accordingly, the appellant was arrested. Before this, one cannabis plant was packed, sealed, and labelled as a sample and the other six plants were uprooted, packed, sealed, and labelled separately, following the statutory requirement. Ext.P7 is the seizure mahazar. 8. PW2, accompanied PW1 to the place of occurrence. He also deposed in terms of what has been stated by PW1. PW2 was an Excise Guard working in the Narcotic Enforcement Squad, Adimaly. PWs.3 and 4 are independent witnesses cited by the prosecution to prove the seizure. But they did not support the case of the prosecution. While PWs.3 and 4 admitted their signature in Ext.P7 mahazar, took a stand that they did not see the arrest of the accused and seizure of the contraband. They are persons hailing from the same locality. When they having admitted the signature in Ext.P7 and affixed it at the place of occurrence, they deviated from the statement given to the investigating officer, PW6, it would reveal their intention of helping the appellant. Since they deposed in court deviating from their previous 5 Crl.Appeal No.360 of 2008 statement, they cannot be said to be reliable witnesses. However, their evidence admitting their signature in Ext.P7 and that they put the signature in it at the spot, that evidence renders sufficient support to the oral testimonies of PWs.1 and 2 that they went to the spot on 26.02.2005 and inspected the property from where the cannabis plants were seized. 9. The evidence on record would reveal that the sample prepared by PW1 at the place of occurrence was produced in court without any delay and the same was sent to the Chemical Examiners' Laboratory along with Ext.P11 forwarding note. Ext.P16 is the chemical analysis report. From the report, it is seen that the sample, which was received in the laboratory intact, was part of the cannabis plant. There is nothing on record to doubt the said evidence. Therefore, the finding of the court below that the plants found by PW1 on the land near the house of the appellant are cannabis plants, cultivation of which without permission is punishable, does not suffer from any infirmity. 10. The learned counsel appearing for the appellant would contend that the prosecution did not prove that the 6 ## Crl.Appeal No.360 of 2008 land from where the cannabis plants were seized belonged to the appellant or has been in his possession. The prosecution relies on the oral testimonies of PWs.1, 2 and 5 together with Ext.P14 to establish that fact. Ext.P14 is the possession certificate issued by PW5, the Village Officer. PW5 deposed in court that he had inspected the property where the cannabis plants were standing and found that it had been in the possession of the appellant, although it was not the land covered by the _Patta_ issued in his favour. The area of land in question is said to be unassigned land. The version of the prosecution is that that area lies contiguous to the _Patta_ land of the appellant and has been in his possession. On that premises, the prosecution alleges that it was the appellant, who cultivated the cannabis plants. 11. In **Alakh Ram v. State of U.P. [(2004) 1 SCC 766],** a similar question was considered by the Apex Court. The appellant therein was prosecuted for the cultivation of 17 Ganja plants on the land allegedly in his possession. The Apex Court held that “there is no evidence that the appellant cultivated these Ganja plants. Having regard to the extent of 7 ## Crl.Appeal No.360 of 2008 the property and the number of plants recovered from that property, it cannot be said that these plants had been the result of cultivation.” 12. This Court in **Harikumar v. State of Kerala [2015 (4) KLJ 352]** has confronted with a similar issue. There also, the appellant faced trial for the allegation that he planted four Ganja plants behind his residential house. This Court, after referring to the position of law as laid down in a few other decisions, held that “when prosecution alleges the possession of the land by a particular person, the initial burden is upon the prosecution to show that the seized ganja was cultivated by the appellant. The relevant intention of the occupier of the premises, from where the ganja seized is material for proving the culpable possession of the property. The possession consists of two elements. The physical control of the property and the animus part of its control”. 13. Here, the property where the cannabis plants were seen cultivated does not form part of the _patta_ land of the appellant. The adjoining property belongs to one Surendran. Ext.D1 is a copy of the crime and occurrence report initiated 8 Crl.Appeal No.360 of 2008 by PW1. In that, the name of the accused was stated as Surendran. Later, a report was filed before the court correcting the name as Narendran, who is the appellant. A similar correction crept in Ext.P14, the possession certificate issued by PW5 as well. Of course, PW5 deposed in court that it was a clerical error and it was corrected by him. Thus there is no reason to disbelieve PW5 to the extent that it was he himself who corrected the name. But when the fact that the property is an unassigned land, and there is no other evidence, except the oral testimonies of PWs.1, 2 and 5, who do not have any prior acquaintance with the appellant or that property, to prove the possession of the land by the appellant, the said corrections become relevant. 14. The above circumstance has to be considered in the light of the proposition of law laid down by the Apex Court and this Court in the aforementioned decisions. PW5 deposed that from his inspection of the property, he could understand that the area where the cannabis plants were seen cultivated also had been in the possession of the appellant. What was the basis for such inference has not been stated by him in the 9 ## Crl.Appeal No.360 of 2008 certificate or in the court. It is a land lying contiguous not only to the appellant's property but also to the lands on either side, which belong to different persons. There is absolutely no evidence to show that the appellant planted or nurtured the cannabis plants. From Ext.P14 certificate and the oral testimonies, which have been referred above, the prosecution wants the court to find that the said property has been in the possession of the appellant. As pointed out above, there is no direct evidence to show that the appellant has cultivated the cannabis plants. 15. Regarding the planting or rearing of the plants by the appellant there is no evidence. Of course, if it is proved that the land where the said plants were found is in possession of the appellant, an inference regarding the commission of the offence by him may be possible under Section 35 of the NDPS Act. But the evidence let in by the prosecution to prove the possession of the property was with the appellant is not wholly reliable for the reasons stated above. 16. In the above circumstances, I am of the view that 10 Crl.Appeal No.360 of 2008 the prosecution failed to prove beyond doubt that it was the appellant, who planted and reared the plants in question. Therefore, the finding of the court below that the appellant has committed the offence of cultivating cannabis plants found by PW1 is unsustainable in law. The judgment dated 16.02.2008 in S.C.(NDPS) No.8 of 2017 of the Special Court (NDPS Act Cases), Thodupuzha is, therefore, liable to be set aside. I do so. Consequently, the appeal is allowed. The appellant is found not guilty of the offence under Section 20(a)(i) of the NDPS Act and acquitted. He is set at liberty. **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr