IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 CRL.A.No. 290 of 2002() ----------------------- SC.108/2001 of SPL.COURT (NDPS ACT CASES), VADAKARA .................... APPELLANT/ACCUSED. ---------------------- P.P.SHAHIDA, W/O. NOUSHAD, PONMANICHIVALAPPU HOUSE, M.M.ROAD, THALASSERY. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT/COMPLAINANT/STATE. --------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. HEMA, J ----------------------------------- Crl.Appeal.No.290 OF 2002 ----------------------------------- Dated 7th February, 2011 J U D G M E N T This appeal arises from the conviction and sentence passed against appellant under sections 17(b) and 20(b)(ii)(A) of NDPS (Amendment) Act 2001. She was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.30,000/- in default of payment of fine to undergo simple imprisonment for six months under section 17(b) and to undergo simple imprisonment for four months under section 20(b)(ii)(A) of NDPS (Amendment) Act, 2001. Set off was also allowed. 2. According to prosecution on 9.5.2000 at about 4.55 pm, while PW1 was working as Sub Inspector of Police, got information at the police station that opium and ganja were being sold in the place where accused was residing. He recorded this information in the General Diary and also conveyed the information to Circle Inspector. A search memo was sent and thereafter at about 3.15 p.m. a search was conducted in the house of the accused in presence of witnesses. The kitchen was Crl.A. No.290/02 2 searched first and thereafter, bedroom situated on the eastern side of the kitchen was also searched. On the eastern side of the bedroom, a room was found locked and on enquiry made to the accused, she took out a key from her waste and opened the door. 3. In the above room, an iron almarah was found kept and on top of it, a suit-case (MO9) was found and on the suit-case there was a label inscribing appellant's name. Appellant opened the number lock of M09 on instruction by PW1 and it was found to contain ganja and also opium. Rs.18,780/- were also found in it. All those articles were seized, accused was arrested from the spot, samples were drawn, mahazar was prepared and a case was registered. Investigation was conducted and thereafter charge was laid by PW9, Circle Inspector. 4. To prove prosecution case, PW1 to PW10 were examined and marked Ext.P1 to P13 and MO1 to MO9. Accused denied entire allegations while questioned under section 313 of Code of Criminal Procedure. According to appellant, she is innocent of the allegations made. She was residing with two minor children and her mother and her mother's second husband in the house. The house was taken on rent by her mother, PW3 and her mother decided to vacate the house. A good amount was offered to her Crl.A. No.290/02 3 mother by landlady for vacating the house and also to see appellant vacates the house with her children. Proceedings were also initiated legally against appellant and her husband and injunction was also obtained. It is in this context that this case is falsely foisted against appellant by landlady with the help of her mother. Appellant has no room in the house which is in her exclusive possession. She is also not in possession of the key. There is no separate room for her in the house. 5. The trial court considered various aspects and the contentions raised by both sides and came to a finding that accused was in conscious and exclusive possession of contraband article seized in this case and thereby, appellant committed offence under section 17(b) and 20(b)(ii)(A) of NDPS Act. It was also found that court can draw presumption under section 54 of NDPS Act that accused have committed the above offence. 6. Heard both sides. Perused records in this case. As per allegations in the charge, on 9.5.2000 at 5.35pm, 80 gms of ghanja and 480 gms of opium were found kept unauthorisedly by appellant in the room in her occupation in the house. She is not alleged to be found dealing with the contraband article at the time of seizure at any time. Prosecution has no case that Crl.A. No.290/02 4 appellant was in physical possession of the contraband article but she is made liable for possession of the article since the article is seized from a room situated in the house which, according to prosecution is in exclusive possession of appellant. 7. Since appellant is admittedly, not in physical possession of the contraband article, prosecution will succeeded only if it could prove the place from where article was seized, was in exclusive possession of appellant. An attempt was made by prosecution to prove that appellant was in exclusive possession of the house. PW1, PW6 and PW7 are official witnesses to prove this aspect. They stated that that the room from which contraband article was seized was opened with a key which was in possession of appellant and hence, it is she alone has exclusive possession of the house from which contraband article s were seized. 8. But, evidence of PW3 and PW4 reveals otherwise. PW3 is the mother of appellant and she stated that she had taken the relevant house on rent and she was having a key of the house. According to her, she is having control over the house and also the key. According to her, the house was in her exclusive possession and key is also in her possession. Of course, she turned hostile to prosecution and she was declared hostile. But, Crl.A. No.290/02 5 according to accused PW3 was not on good terms with appellant and she was making all efforts to evict appellant and her minor children from the house, at the instance of the landlady. 9. PW3 admitted that she instituted several suits against appellant and her husband to prevent them from entering the house and a case is pending also. In such circumstances, it may not be said that PW3 was speaking relevant facts to support her daughter. Her evidence that the house is in her possession and key is also with her cannot be brushed aside lightly. 10. PW4 who is the landlady also gave evidence corroborating evidence of PW3. She stated that she gave the relevant house on rent to PW3. According to PW4, there was only a kitchen and a hall in the house. PW3 also stated this fact. PW 4's evidence reveals that a notice was issued for evicting PW3 from the house and as per details shown in the notice also, there is only a kitchen and a hall. 11. If this fact is accepted, the prosecution case that there was another room in appellant's possession is doubtful. However, PW4 tried to explain this discrepancy and stated that a partition was effected to the hall after letting out. But, she also admitted that such fact was not stated by her to the police. Any way, claim Crl.A. No.290/02 6 made by prosecution that the house is in exclusive possession of appellant is inconsistent with the evidence adduced. 12. It is also come out from evidence that appellant's husband is also residing there. PW1 himself stated that he was also residing there. One of the independent witnesses also stated that appellant's husband is also residing in the house. It has also come out in evidence that appellant's husband was a convict in a case involving narcotic drug. In such circumstances, it cannot be said that appellant is in exclusive possession of the house. 13. It is also to be noted in this context that the key which is allegedly used by appellant to open the room and which was allegedly in her exclusive possession is not produced in this case. It is also not seized and no reason is stated why the said key was not seized in this case. No effort was made by investigating officer to seize the key of the room though it is alleged to be in the exclusive possession of appellant. 14. Prosecution made an attempt to show that the particular room from where article was seized is in exclusive possession of appellant. But, evidence in respect of a layout of the house, the room etc, is contradictory. PW1 stated that there are only two doors on the veranda for entrance to the house. But, PW6 who is Crl.A. No.290/02 7 also an official witness gave evidence that there is only one door on the northern wall from the veranda to the room. The evidence of PW3 and 4 and also PW8, Circle Inspector would show that apart from the door opening from verandah to the eastern room from where article was seized, there is entry to the said room from the bedroom, which was used by PW3. That is from the center room and there is a passage from that room to the room from where the article was kept. 15. Evidence of PW3 clearly shows that the said room was not exclusively kept for possession of appellant. PW9 clearly stated in his evidence that from the eastern room (PW3's room) to the east, there is a passage on the eastern wall. It is clear from evidence that there are two rooms lying on the eastern side of kitchen connected with a passage. In the re-examination, PW8 clarified that said passage connects two rooms on the western side to the room from where article was kept. 16. There are also a lot of contradictions in the evidence regarding where the kitchen is situated. While the official witness would say there is one kitchen on the western side and there are two bedrooms on the eastern side of the kitchen, evidence of PW4, the landlord would show that the kitchen, which was there Crl.A. No.290/02 8 originally when it was let out was converted and it was occupied by PW3. PW4 also gave evidence that another kitchen was constructed by PW3 for her own purpose and a kitchen was used by appellant. Thus, It has come out in evidence that there are two kitchens. 17. Thus, altogether, evidence is quite shabby regarding the exclusive use of the room from where article was seized. It cannot be concluded from the nature of the evidence adduced in this case that appellant was in exclusive possession of the room from where the article was kept. I find it also difficult to hold that appellant herself opened the room by using a key, in the absence of seizure of the same. It is also clear from evidence that even without opening front door, search can be conducted by entering relevant room through other rooms, as evident from the testimony given by official witnesses themselves. 18. Regarding the bag, from where article was seized, it cannot be held that it was also in exclusive possession of appellant. Only because bag contained the sticker showing the name of appellant, it cannot be concluded that the bag belonged to appellant exclusively. PW3, her own mother stated that she was also using the same bag, MO9 for keeping clothes etc. Crl.A. No.290/02 9 According to her the bag is the only place where articles were kept by both mother and daughter. 19. PW3 also stated that the money which was allegedly seized from the bag belongs to her. According to her, she had opened the drawer of the table and handed over the money to police. PW3 stated that money was sent from abroad and that it belonged to appellant's mother. Taking all these facts into consideration, I find that prosecution has not established that the room and the bag from where article was seized belonged exclusively to appellant. Hence she cannot be attributed possession of article kept in the room or possession of the bag. 20. Learned counsel for appellant argued that there is some discrepancy in the chemical analysis report and he also raised some other points relating to small quantity, nature of test conducted in this case, lack of evidence to show that whether the article was opium and opium derivatives etc. In the light of what I have already held, I do not think it necessary to deal with them in detail. Any way, the conviction and sentence passed against appellant as per the impugned judgment are unsustainable. Hence, the following order is passed: (i) The conviction and sentence passed against Crl.A. No.290/02 10 appellant under sections 17(b) and 20(b)(ii) (A) of NDPS (Amendment)Act are set aside. (ii) The appellant is found not guilty of offences under sections 17(b) and 20(b)(ii)(A) of NDPS (Amendment)Act and she is acquitted of said offences. (iii) The appellant is set at liberty forthwith. This appeal is allowed. Sd/-K. HEMA, JUDGE. Sou. /True copy/ P.A to Judge