VIMALAKUMARI W/O THULASEEDHARAN v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, 1945** **CRL.A NO. 365 OF 2015** **CRIME NO.212/2006 OF Chadayamanagalam Police Station, Kollam AGAINST THE ORDER/JUDGMENT SC 430/2007 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, KOLLAM/ V ADDL.MACT - APPELLANT/A 2:** VIMALAKUMARI W/O.THULASEEDHARAN, SANTHOSH BHAVAN, AKAMON,AYOORMURI, IDAMULAKKAL, KOLLAM DIST. BY ADVS. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM - 682 031. ## **OTHER PRESENT:** PP -M.C.ASHI **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. APPEAL No.365 of 2015 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. APPEAL No.365 of 2015** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of December, 2023 ## **JUDGMENT** The appellant is the 2[nd] accused in Crime No.212/2006 of Chadayamangalam Police Station alleging commission of offences punishable under section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) along with accused Nos. 1 and 3. 2. The prosecution allegation is that on 27.06.2006 at 10. a.m., the police party coming to know that ganja is in a shop room in Edamulakkal Panchayath, came to the spot and opened the shop room with the assistance of the 3[rd] accused. It was found that there was a sack containing 25 kg and 700 gms of Ganga inside the shop room. Later on the 2[nd] accused, the present appellant was arrested on the allegation that the shop room of the Panchayat was bid by the appellant during the auction. 3. To prove the case of the prosecution, PWs 1 to 9 were CRL. APPEAL No.365 of 2015 :3: examined, Exts.P1 to P11 were marked and MOs 1 to 6 were identified. The trial Court found the 2[nd] accused guilty and convicted the appellant/2[nd] accused to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of one year. The trial Court acquitted accused Nos.1 and 3 on finding that they are not guilty and also allowed set-off for the appellant for the period already in judicial custody in this case. 4. The learned counsel appearing for the appellant assailed the order of the trial Court on the following grounds: There is violation of Section 52A of the NDPS Act inasmuch as the samples were not taken in the presence and supervision of the Magistrate. Yet another contention raised by the appellant is that she has been convicted solely on the allegation that she has taken the shop on rent from the Edamulakkal Grama Panchayat, from where the alleged contraband was seized and relying solely on Ext.P1 certificate and the evidence of PW3, the trial court found the appellant guilty. CRL. APPEAL No.365 of 2015 :4: 5. As per the prosecution case, the Sub Inspector of Chadayamangalam got information regarding the possession of ganja by the 1[st] accused and others inside the shop room of Ayur market and after reducing the said information in the General Dairy and also preparing Ext.P2 information, sent it to the Circle Inspector, Kadakkal and obtained permission to proceed with the investigation. The said Sub Inspector, who was examined as PW9 stated that after Ext.P2, he prepared Ext.P4 search memo and went to the spot since he could not obtain permission from the court for want of time. In the meanwhile, he managed to arrange to bring the Junior Superintendent of Edamulakal Panchayath to the spot and he went to the spot along with his patrol party including PW4 and PW5 and saw the 3[rd] accused in front of the shop room and opened the shop room with the help of the 3[rd] accused. The said shop room was bid by the 2[nd] accused(the appellant herein) during that period, who is the mother-in-law of the 3[rd] accused and found a rexine bag inside the shop room. The bag contained a plastic cover wherein ganja was found filled. On inspection the said Sub-Inspector recovered 22 plastic covers CRL. APPEAL No.365 of 2015 :5: kept beneath the roof portion of tile which contain ganja. He opened all the plastic covers and mixed the entire ganja and it was weighed and found to be 25.700kgs. He took 200 gm each, in three packets as sample, twined, labelled and sealed them properly. The said sample packets were marked as MO6 series. He has also filed Ext.P8 report, through which he has corrected all the entries to the effect that MO1 is a leather bag is wrong and actually it is a rexine bag. The remaining ganja 25.100 kg was marked as MO4. The said ganja was placed inside a plastic cover, MO3 and has kept the same inside MO2 bag. MO5 is the 22 covers wherein ganja was found beneath the roof of tile of the shop room. He arrested the 3[rd] accused from the spot at 12 pm and prepared Ext.P5 search list and came back to the police station and registered Ext.P6-FIR against all the accused. Ext.P7 is the property list prepared and he arrested the 2[nd] accused at 5 pm on 27.06.2006 with the assistance of Women Police Constable-PW5. Ext.P9 is the custody memo of the 2[nd] accused and Ext. P10 is her arrest memo. Ext.P11 is the chemical analysis report wherein it is certified that the sample contains ganja. PW4, CRL. APPEAL No.365 of 2015 :6: who is the police constable, accompanied with PW9 in the patrol duty witnessed all the incidents and adduced evidence in tune with PW9. PW9 entrusted Ext.P4/search memo to PW4 to be submitted before the Judicial First Class Magistrate concerned and PW4 went to the court by bus from the spot. PW5 is the Women Police Constable who accompanied PW9 in the patrol duty and she adduced evidence in tune with the evidence adduced by PW9. According to her, she saw the 3[rd] accused at the spot, in front of the shop room No. 14/6 and the 3[rd] accused opened the door of the shop room with a key kept with him and they entered the shop room. She also identified Mos. 1 to 6 recovered from the shop. She has witnessed the recovery of ganja in MO1 bag as well as the plastic covers kept beneath the roof of the shop room. PW3 is the Secretary of the Edamulakal Grama Panchayath, who issued Ext.P1 certificate, wherein it is stated that old stall No.6 of Edamulakal Panchayath Ward No.14 was auctioned to the appellant herein, who is the 2[nd] accused. The said Ext.P1 certificate was issued on 03.07.2006 in which it is stated that during that period the shop room was in possession of CRL. APPEAL No.365 of 2015 :7: the appellant/2[nd] accused, who was the bidder of the said shop. 6. Going by the case of the prosecution, the shop room from which the alleged contraband(ganja) was seized, was auctioned in favour of the 2[nd] accused and to substantiate the same, Ext.P1 was produced and PW3, who issued Ext.P1 was also examined. It is the further case of the prosecution that the 3[rd] accused, who was standing nearby the shop, when he reached the place of occurrence, opened the door of the shop with the key which was in his possession and on a search conducted, seized the alleged contraband. On the basis of the same, it is the contention of the prosecution that accused Nos. 1 to 3 have committed the offence as alleged. The trial Court entered a finding that though the 1[st] accused(husband of the 2[nd] accused) and the 3[rd] accused who is the son-in-law of the appellant/2[nd] accused, were arrested, the prosecution could not produce any other evidence to show the direct involvement of accused Nos. 1 and 3 in possessing the alleged contraband inside the shop room. Though the specific case of the prosecution is that the door of the shop room from where the alleged contraband was seized was opened with a key CRL. APPEAL No.365 of 2015 :8: which was in the possession of the 3[rd] accused, the prosecution could not produce the key before the Court. Though the case of the prosecution is that the Junior Superintendent of the Panchayat was present all throughout the search and the seizure and he was an attesting witness to Ext.P5 search list and he was cited as CW4, he was not examined as a witness and for which absolutely no explanation was given on the side of the prosecution. Yet another witness who is a witness to Ext.P5 search list, who was examined as PW1, turned hostile to the case of the prosecution and deposed that he denied having put his signature in Ext.P5. The only witness to prove the search and seizure had turned hostile and other witnesses have not been examined by the prosecution. Though the trial court found that due to the above-said circumstance, the prosecution could not prove the case against accused Nos. 1 and 3 by adducing cogent evidence, the trial court convicted the appellant/2[nd] accused solely on the basis of Ext.P1 certificate and the evidence of PW3, who issued the said certificate. So, the question to be considered is as to whether the appellant could be convicted solely on the CRL. APPEAL No.365 of 2015 :9: basis of Ext.P1 and the evidence of PW3. 7. Ext.P1 certificate dated 03.07.2006 only states that the said shop room bearing No.6 of ward No.14 of the Edamulakkal Grama Panchayat, which is inside the market, was taken in auction by the appellant/2[nd] accused. There is no mention in Ext.P1 regarding the period during which the shop room was auctioned by the appellant. Evidence of PW3, through whom Ext.P1 was marked, is only to the effect that the shop number bearing number '6' inside the Panchayat market in ward No.14 was taken in auction by the appellant herein and the auction was for a period of one year from 01.04.2006. But he admits in crossexamination that in Ext.P1 the period during which the shop room was in possession of the appellant after it was taken in auction, is not mentioned. He would further submit that in the auction register, the name of the appellant is entered. However it is seen that the auction register is not seen produced and marked in the present case. Yet another aspect to be considered is the evidence of PWs 5, 7 and 9 that the shop room was opened by the 3[rd] accused using a key which was in his possession. Admittedly, the CRL. APPEAL No.365 of 2015 :10: auction register is not produced and marked by the prosecution. Ext.P1 certificate issued by PW3 though produced and marked, will not show the period during which the shop room was taken in auction by the appellant. Even going by the prosecution case, the door of the shop was opened by the 3[rd] accused by using a key in his possession. Even though the prosecution has a case that it is using the key in the possession of the 3[rd] accused that the door of the shop was opened, the said key has not been produced and marked by the prosecution. Though CW4, who is the Junior Superintendent of Edamulakkal Grama Panchayat came to the spot as intimated by PW9 and though he was a witness to Ext.P5 along with other three witnesses, he was not examined. Furthermore, the only witness examined to prove Ext.P5, search and seizure - PW1, has turned hostile and denied having signed in Ext.P5. The appellant relies on the judgment in _**Ravi v. State of Kerala [2011 (3) KLT 627]**_ to contend for the position that only for the reason that the article 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 CRL. APPEAL No.365 of 2015 :11: “possession” of such article. This court in paragraphs 24, 27 and 28 of the said judgment held as follows: _“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._ _25. xxx xxx xxx_ _26. xxx xxx xxx_ _27. Legislature treated “possession” and “storing” as different acts. The court shall not therefore, proceed as if “possession” and “storing” connote the same thing. It shall first ascertain from the case records, what exactly is the overt act alleged against the particular accused. The court shall not proceed on any assumption or presumption that owner or occupier of such building has stored it or he is in possession, only because a contraband article is allegedly seized from a building or house belonging to him._ _28. The detecting officer and the Investigating officer also shall not proceed on any assumption that the owner or occupier of the building would have stored or is in possession of the contraband article which is found in a building. It is the duty of the detecting officer to satisfy_ CRL. APPEAL No.365 of 2015 :12: _himself, before a person is arrested that he has committed a particular act which makes him liable for an offence. The investigating officer also shall investigate into the relevant aspects and confirm whether the accused committed any act or omission in respect of the contraband article which makes him liable for any offence under the Act.”_ Except for producing Ext.P1, which does not contain the period during which the shop was in possession of the appellant, after being taken in auction and the evidence of PW1, there is absolutely no evidence adduced by the prosecution to prove that the seized article was kept in the shop or she was in conscious possession of the contraband at the time of the alleged seizure. 8. Even going by the prosecution case, the shop was opened using the key given by the 3rd accused who was present at the spot. Admitedly, the key is not produced and marked in the trial. PW3 when examined admits that the period for which the shop was auctioned to the appellant is not mentioned so as to prove the period during which the appellant was in possession of the property after having taken the shop in auction. But PW3 would depose that the said certificate has been issued on the basis of CRL. APPEAL No.365 of 2015 :13: the entry in the auction register. The said auction register would have been the best evidence to prove the period of possession of the shop room by the appellant but the same has not been produced and marked. Apex Court in _**Gangadhar @ Gangaram**_ _**v. State of Madhya Pradesh**_ , **(2020) 9 SCC 202** has held in paragraph 12 as follows: _“12. The appellant had produced the sale agreement, Ext. P-28 with promptness the very next day. It was never investigated for its genuineness by the police and neither were the panchayat records verified. The panchayat records are public documents and would have been the best evidence to establish the ownership and possession of the house. Despite the best evidence being available the police considered it sufficient to obtain a certificate, Ext. P-37 signed by PW 14 who acknowledged her signature but denied knowledge of the contents of the certificate. The voters list entry of 2008 being prior to the sale is of no consequence. It is not without reason that the co-accused had absconded.”_ Therefore, Ext.P1 cannot be relied on to conclude that the appellant is in possession of the property or custody of the property, after taking the said shop room in auction. Since materials produced by the prosecution is not sufficient to connect CRL. APPEAL No.365 of 2015 **==> picture [20 x 9] intentionally omitted <==** the appellant to the alleged incident, I find that the appellant is entitled for the benefit of doubt and the conviction is liable to be interfered with. 9. In the result, the Crl. Appeal is allowed, setting aside the conviction and sentence passed by the court below and the appellant/2[nd] accused is acquitted of the charges levelled against her. The bail bond shall stand cancelled and she is set at liberty. Needless to say, if the appellant/2[nd] accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the appellant in accordance with the law. Sd/- **VIJU ABRAHAM JUDGE** sm/