IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 56 of 2009()
1. VINEESH.V.T., S/O.THAMPAN,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE PUBLIC
... Respondent
For Petitioner :SRI.SUNIL NAIR PALAKKAT
For Respondent : No Appearance
The Hon'ble MRS. Justice K.HEMA
Dated :06/01/2011
O R D E R
K.HEMA, J.
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Crl. Appeal No. 56 of 2009
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Dated 6th January, 2011.
JUDGMENT
This appeal arises from the conviction and sentence passed
against the appellant under Section 20(b)(ii)(B) of the Narcotic
Drugs and Psychotropic Substances Act (‘N.D.P.S. Act’ for short) to
undergo rigorous imprisonment for 3 years and to pay fine of
Rs.25,000/-, in default of payment of fine to undergo rigorous
imprisonment for 6 months.
2. According to prosecution, on 5.7.2007 at about 4 p.m. the
Sub Inspector of Police received secret information that ganja was
kept in house no.5/15 of Kanichar Panchayat in Kanichar village
and after, complying with the legal requirements, he proceeded to
search the house. The appellant, who was present in the house, ran
away on seeing the police party. He fell down and he was taken into
custody. The house was searched in the presence of the accused
and his mother. From the office room of the house, ganja, which was
kept in a sack, was seized, The ganja was found to weigh 4.100 Kg.
Samples were taken and the articles were seized and labelled. F.I.R.
was registered and, after investigation, charge-sheet was laid
against the petitioner for possession of ganja.
[Crl. Appeal No.56/2009] 2
3. To prove the prosecution case, PWs. 1 to 10 were examined
and Exts.P1 to P12 and MOs. 1 to 4 were marked. The accused did
not adduce any evidence, but pleaded innocence. The trial court,
after analysis of the evidence, found that there is no violation of any
of the relevant provisions in the N.D.P.S. Act and the evidence
satisfactorily proved that the accused and his mother were residing in
the house from where the article was seized and that the accused
was in possession of ganja.
4. PW1, the S.I. of Police, is the detecting officer. PW2 and
PW6 were the officials, who were present along with PW1 at the time
of detection of the crime, search and seizure. PW2 is the A.S.I. and
PW6 is the Police Constable. All of them gave evidence more or less
consistent with the prosecution case on the fact that accused was
present in the house from where ganja was seized. According to
them, the accused ran away from the house on seeing them and
ganja was seized from the office room.
5. On going through the evidence of PWs 1, 2 and 6, it is clear
that appellant not was found dealing with ganja. Ganja was not
seized from the physical possession of the appellant. The evidence
discloses mere presence of accused person in the house from where
ganja was seized. Can accused be made liable for possession of
ganja which was seized from a house where he was present?
[Crl. Appeal No.56/2009] 3
6. According to the prosecution, the house stands in the name
of the mother of appellant. PW1, the detecting officer and PW10,
the investigating officer, did not take any steps to ascertain
existence of any document or seize any documents to prove
possession of the house.
7. The ration card or the voter’s list are not seized. On the
other hand, ownership of the house is proved to be with the mother of
the appellant by producing Ext.P10 ownership certificate issued by
the village officer concerned. In the light of the above facts,
possession of the contraband article cannot be attributed to the
appellant (Vide Radhakrishnan v. State of Kerala (2009 (2) KLT
SN 56 (Case No.61). The appellant cannot be convicted for
possession of ganja, which was seized from the house which
belonged to his mother in the absence of anything to show that he
was in possession of the house. The mere presence of the accused in
the house is insufficient to establish possession of an article seized
from the house.
8. Learned counsel for appellant argued that appellant ‘s
mother was not cited as a witness and hence it is fatal to the
prosecution. He also argued that somebody would have kept the
article in the house, since the police party ran after the appellant
when he ran out of the house. It is also argued that copy of the search
[Crl. Appeal No.56/2009] 4
list was not given to the owner of the house. I do not find any merit
in any of the arguments advanced. But, in the light of the findings,
which I have already entered, the conviction and sentence are liable
to be set aside.
In the result, the following order is passed:
1) The conviction and sentence passed against the
appellant under Section 20(b)(ii)(B) of N.D.P.S. Act
are set aside.
2) The appellant is found not guilty and he is acquitted of
the offence under Section 20(b)(ii)(B) of N.D.P.S. Act.
3) Appellant is set at liberty forthwith.
4) The Registry shall Issue release order forthwith.
Appeal is allowed.
K. HEMA, JUDGE.
krs.