Sujitha U. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 2ND DAY OF NOVEMBER 2017/11TH KARTHIKA, 1939** **Crl.MC.No. 5278 of 2017 () ---------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 441/2017 of J.M.F.C.-II,TRIVANDRUM CRIME NO. 1/2016 OF TRIVANDRUM EXCISE CIRCLE OFFICE , THIRUVANANDAPURAM** **PETITIONER(S)/3RD ACCUSED :** **--------------------------** **SUJITHA .U AGED 23 YEARS, D/O USHA RESIDING AT ADDUPPUKOOTAN PARA, TC VP-11/956 PERROORKADA VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.A.CHANDRA BABU SMT.S.S.LOVE LI N SITHARA** **RESPONDENT(S)/STATE :** **---------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. THE CIRCLE INSPECTOR OF EXCISE, THIRUVANANTHAPURAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.SURESH BABU THOMAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 3010-2017, THE COURT ON 2/11/2017 PASSED THE FOLLOWING:** **Crl.MC.No. 5278 of 2017 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------ANNEXURE A CERTIFIED COPY OF THE FINAL REPORT DATED, 24.05.2017.** **ANNEXURE B TRUE COPY OF THE ID CARD ISSUED BY THE KIMS HOSPITAL, THIRUVANANTHAPURAM.** **ANNEXURE C TRUE COPY OF THE ATTENDANCE LOG REPORT OF THE KIMS HOSPITAL, THIRUVANANTHAPURAM.** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.5278 of 2017** - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of November, 2017 ## **O R D E R** The 3[rd] accused in Crime No. 1/2016 of the Excise Circle Office, Thiruvananthapuram for offences punishable under section 20 (b) and 20(a) of the NDPS Act 1985, challenges the final report filed to the extent of implicating her in the above crime as the 3[rd] accused. 2. The prosecution allegation is that, on 16/1/2017 at about 3 p.m. the first accused was found in possession of 60 grms of ganja at her house and was in the process of wrapping it into small packets. She was arrested on the spot. After investigation, final report was laid arraying the brother of the petitioner herein as the second accused and the petitioner herein as the 3[rd] accused. 3. The petitioner herein, contending that she was not involved in the above offence, that she is permanently employed at KIMS Hospital, Thiruvananthapuaram and that on the relevant day, she was on duty at the hospital, seeks to quash the proceedings against her. 4. It is asserted by her that, apart from the fact that she is the 2 Crl.M.C.No.5278/2017 co-owner of the house from where the mother was apprehended, she was not in conscious possession of ganja, directly or indirectly. Hence, it was contended that, no criminal liability can be fastened on her on the mere premise that she is the co-owner, along with the other siblings. 5. Vehemently, opposing the application, learned Additional Director General of Prosecution submitted that, the father of the petitioner herein was residing in that house and he was involved in 35 crimes, of which 8 were under the NDPS Act. He was convicted in three cases. The mother of the petitioner was involved in two criminal cases under the NDPS Act including the present one. The brother of the petitioner herein was also involved in one case. It was contended by the learned ADGP that, the petitioner, herein being a co-owner and residing in that house, was conscious about the entire transactions and cannot feign ignorance regarding the storing and handling of ganja carried out in the house. It was further contended that hence she was in conscious possession of ganja. 6. It appears that , the house originally belonged to the father of the petitioner herein and consequent to his death, the right devolved on the wife and the children by succession. Records also reveal that petitioner had two brothers, both of whom were also the co-owners. One of the brothers was arrayed as accused,whereas on the finding that the other accused was residing Crl.M.C.No.5278/2017 3 elsewhere and that his whereabouts are not known, he was not arrayed as an accused. Notices were issued to the second and third accused, calling upon them to cooperate with the investigation, which they did not. It also appears from the record that, the petitioner herein is employed at KIMS Hospital, Thiruvananthpuram, as a staff nurse Grade - II. According to the learned counsel for the petitioner, she is not involved in any other crime. She was studying in the Nursing College for several years and thereafter got employment in KIMS Hospital. It is contended that, she being a young woman who is educated and earning her livelihood from the employment, could not have in any manner associated herself with the ganja business. It was further contended that, she was on duty from 16/7/2016 to 17/11/2016, She relied on Annexure C, which is the Attendance Log report, which shows that she marked her attendance on 16/1/2016 at 7.04 hours. She continued to be in office on the next day, till 19.59 hours on 17/1/2016. It seems that, she left the place only at that time. Consequently, she was in the hospital on duty during the relevant time. 7. It is pertinent to note that, notice was issued to her informing that she was the co-owner of the house and she was called upon to explain as to why she should not be implicated as an accused for storing 60 grms of ganja. She seems to have received the notice, but did not respond. According to her, notice itself 4 Crl.M.C.No.5278/2017 indicates that there was absolutely no material gathered by the investigating agency to connect the petitioner herein with the crime, except the fact that she was the co-owner of the property by the law of succession. It was contended that the investigating agency also did not get any information from any person, to implicate the petitioner herein, with the allegation of conscious possession of ganja. Evidently, prosecution has no case that she was personally present in the house at the time of interception. It was contended that even assuming that she was conscious of storing of ganja alone, being a co-owner, offence attributed to her can only be under section 25 of the NDPS Act. Even then there must be evidence to show that she has a domain over the property or had permitted consciously to the storing of the contra band. Learned counsel contended that as a mere co-owner of the property, the petitioner cannot be attributed with the criminal liability. 8. Learned counsel for the petitioner relied on the decision reported in **Ravi v. State of Kerala (2011 (3) KLT 627)** , wherein the learned Single Judge of this Court held that, only because the article prohibited under the Abkari Act was 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 possession of such articles. This decision was reiterated by another learned Single Judge of this Court in Crl.M.C.No.5278/2017 5 **Rajappan V.P.v.State of Kerala (2015 (5) KHC 895)** , wherein the court held that merely because accused is the owner of the house, he is not liable to be convicted for offence under section 55 (g) of the Abkari Act. It was held that the prosecution should prove that accused was having domain over contraband articles seized so as to infer that he was in conscious possession of the article seized or to infer even that he was in constructive possession of the article. It was contended by the counsel that the corresponding provision under the Abkari Act was in pari materia with the relevant provision under the NDPS Act. 9. In **Harikumar v. State of Kerala (2015 KHC 839)** while dealing with the identical situation under the provisions of the NDPS Act, learned Single Judge of this Court held that, mere presence of the accused in the property from where the ganja was seized is insufficient to attribute conscious possession of the contraband with him. The burden lies upon the prosecution to prove by cogent and reliable evidence that the accused was in exclusive possession of the seized ganja. 10. The facts available in this case indicate that, there is absolutely no material to link the petitioner herein with the crime except that she is co-owner of the house from where the ganja was recovered. This fact itself is not sufficient to cast the criminal liability. She has no criminal antecedent. Hence, I feel that criminal proceedings as against the petitioner herein cannot Crl.M.C.No.5278/2017 6 survive and is liable to be quashed. In the light of the above facts, I am inclined to allow the Crl.M.C. Accordingly, Crl.M.C.is allowed. All further proceedings pursuant to Cc No. 441/2017 of JFCM-II, Thiruvananthapuram in NDPS Crime No. 01/2016 of Excise Circle Office, Thiruvananthapurm as against the 3[rd] accused/petitioner herein stands quashed. ## **Sd/-** **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge.