IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 CRL.A.No. 1241 of 2007() ------------------------ SC.1176/2005 of SPL.COURT (NDPS ACT CASES), TRIVANDRUM .................... APPELLANT(S): APPELLANT/ACCUSED -------------------------------- SANDANAM SUBASH @ UDAYARAJ @ UDAYA, AGED 30 YEARS, S/O. SANDANAM, SRILANKAN NATIONAL, RESIDING AT VII/194, NEAR KAIRALI JUNCTION, KAIRALI ROAD, ATTINGAL. BY ADV. SMT.SANGEETHA LAKSHMANA RESPONDENT(S): COMPLAINANT --------------------------- THE STATE OF KERALA, REPRESENTED BY THE INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU, REGIONAL INTELLIGENCE UNIT, THIRUVANANTHAPURAM, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SRI.C.P.UDAYABHANU,SPL.PP FOR NDPS CASES THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ------------------------------------ Crl.Appeal.No.1241 OF 2007 ------------------------------------- Dated 12th January, 2011 J U D G M E N T The appellant was convicted and sentenced under sections 21(c), 27-A, 28 and 29 of Narcotic Drugs and Psychotropic Substances Act ('NDPS Act' for short) by learned Special Judge for trial of cases under NDPS Act. The said conviction and sentence are challenged in this appeal. 2. According to prosecution, two persons were arrested from K.S.R.T.C bus station on 10.6.2005 at about 7 am, on finding them in possession of 2.325g of heroin, a Narcotic Drug. An enquiry revealed that appellant supplied the said drug to them and he was in possession of five Kilograms of heroin and out of this, he handed over 2.325 gm to those persons. The balance of heroin was kept in a two storied house, by appellant. 3. On getting the above information, PW7, Superintendent, Narcotic Control Bureau and PW4, Intelligence Officer conducted search in the house based on the description given by other accused on the same day, after complying with legal formalities PW4 and PW7 along with independent witness, PW1 came to CRA.1241/07 2 house No.7/194. The appellant was present there, along with other family members who are females. The appellant took out two bags and on seeing secret chamber in those bags, it was ripped open with knife when it was found to contain heroin, which were kept in polythene covers. 4. In the two bags, 1495 grams and 1485 grams of heroin respectively were found. Accused was told he had a right under section 50 to be searched his person either in the presence of a Judicial Magistrate or a gazetted officer. Ext.P11 notice was also given and PW3 explained the right to him in Tamil. The body of accused was searched since he did not want to avail such right. Nothing was seen seized from his personal possession. 5. Samples of heroin were taken and a mahazar was prepared for seizure of the same. Accused was given summons to appear before PW4. Two samples having five grams each were taken sealed and sealed. Mahazar was also prepared. The articles were seized. The statement of appellant was recorded under section 67 of the Act on 10.6.2005 and also on 11.6.2005. He was arrested on 11.6.2005. After investigation charge was laid against appellant. A complaint was filed by PW8 Intelligence CRA.1241/07 3 Officer, NCB, alleging offence under sections 21(c), 27-A, 28 and 29 of NDPS Act. According to prosecution, accused also committed criminal conspiracy to procure 5Kg of heroin from Mumbai and transported, exported and possessed heroin of large quantity. He was found in possession of 2.980 Kg of heroin on 10.6.2005. 6. To prove prosecution case, prosecution examined PW1 to PW8 and marked Ext.P1 to P28 and MO1 to MO11 on its side. Accused did not adduced any evidence but denied the entire allegations made against him. According to him, he is innocent of the allegations made. He was not in possession of the house from where contraband article was seized. During the relevant period he was constructing a house and had also taken steps to take a house on rent and Rs.3,000/- was also given as advance. Till shifting his residence to rented house, he was staying in the house of Mohanraj, one of his friends. The said person was arrested in a case involving offence under NDPS Act. The house, from where articles seized belonged to Sri.Mohanraj but appellant was only a guest in the said house. 7. The trial court, after analysis of the oral and documentary evidence in this case, held that accused was acting in pursuance CRA.1241/07 4 of criminal conspiracy as alleged by prosecution and he was arrested by NCB officials while he was executing their alleged plan to transport to Tamil Nadu 5 Kg of heroin, which he had procured from Mumbai, through the carriers by name Ashok and Chellamuthu for exporting to Sreelanka. Accused failed to account for his possession of 2.980 Kg of heroin and hence presumption under section 54 of the NDPS Act was drawn against him and he was convicted for offence under section 21(c), 27 A, 28 and 29 read with section 8(c) of the NDPS Act. 8. Heard both sides. Perused records. Accused was charge sheeted for offence under section 21(c), 27A, 28 and 29 of NDPS Act. At the very outset, I would say that evidence on record do not reveal any evidence to establish that appellant transported, imported, exported or committed criminal conspiracy at the different places referred to in the charge, during the month of June, 2005. The seizure was effected on 10.6.2005 and no evidence is adduced to show appellant had gone to any of those places or contacted any persons residing at Mumbai or Sreelanka and committed criminal conspiracy. 9. The date, time and place where criminal conspiracy were hatched are also not stated in the charge. It appears from the CRA.1241/07 5 charge that charge was laid for offence under section 28, 29 and 27A of NDPS Act on mere guess and not on any materials placed before court. There are only some allegations in the charge but there is no evidence to establish any of the ingredients of offence under sections 27A or 28 or 29 of NDPS Act and hence, conviction entered against appellant for the said offences cannot be sustained. 10. According to prosecution, appellant had procured 5.35 Kg of heroine and hatched criminal conspiracy and pursuant to that, imported, transported, exported the same to Sreelanka. Out of the said quantity of heroin, 2.980Kg were allegedly seized from possession of appellant on 10.6.2005. As per the charge, contraband article was not seized from the personal possession of the appellant. Prosecution has no case that appellant was physically carrying contraband article or that such article was in his physical possession at the time, when he was apprehended. 11. Prosecution has no case that appellant was dealing with heroin, in any manner when he was found in the house from where the contraband article was seized. The case of the prosecution is that 2.980 Kg of heroin were seized from house no.7/194. The evidence of PW1, who is an independent witness CRA.1241/07 6 to seizure and PW4, who is the intelligence officer who was involved in the seizure of the contraband article gave evidence that they went to house no.7/194 and knocked the door. When accused came to the door and opened the same, after conveying the intention to search the house, PW4 told appellant that he had received information that Narcotic Drug was kept hidden “in the house”. Both PW1 and 4, who are the witnesses to search and seizure categorically stated that this was the query made to appellant and in reply, appellant affirmed the same. It is relevant to note that neither the official nor appellant referred to any heroin being possessed by appellant personally. 12. When the query was made and after affirming that contraband article was kept in the house, appellant went to the room and took out two bags and handed over the same stating that heroin was kept hidden in the bags. Both these bags were seized. From the above evidence, the only conclusion possible is that appellant took out two bags and handed over the same to PW4, when the later enquired whether any contraband article (narcotic drug) was kept hidden in the “house”. It is relevant to mention here that no query was made to the appellant whether he had kept any contraband article in the house or whether he CRA.1241/07 7 was in possession of any contraband article. Therefore, from the evidence given by PW1 and PW4 regarding what transpired at the time when PW4 went to the house for search, it cannot be said that production of contraband article by appellant alone would prove possession of the same by him. 13. However, the evidence of PW1 and 4 would clearly establish that 2.980 Kilograms of heroin were seized from house no.7/194 and at the time of seizure, appellant was also present there. His conduct in handing over the bags containing Narcotic drug is also established by PW1 and PW4. There is nothing in the evidence of PW1 and PW4 to disbelieve this evidence regarding what transpired in the house regarding search and seizure. But the question is whether a person who was present in a building at the time of seizure can be said to be in possession of contraband article seized from the building or not. 14. It is needless to say that if an article is seized from a building, the article is presumed to be in possession of the owner or the person who is in possession of the building. This is for the reason that such a person is presumed to be the person who is having control and domain over the articles kept in such building to the exclusion of others. The owner of the house was examined CRA.1241/07 8 as PW5. He gave evidence that house no.7/194 belonged to him. According to him, the said house was given on rent to two different persons. The house is a two storied one and the first floor is rented out to one Lal, who is residing there and ground floor was let out to one “Mohan”, who is also called as “Surya”. This rental arrangement was made by the end of 2005 through a broker, Rajan. PW5 also produced rent deed executed by “Surya” in favour of him and it is Ext.P22. 15. If the evidence of PW5 is believed, he an be exonerated from the possession of any article, which is seized from the house, as owner of the property. But, then, tenant can be said to be in possession of the house and the articles kept in the house to the exclusion of PW5 and others. But the tenant Mohan @ Surya is not examined in this case. He was not even questioned by the officers of NCB. When a building is given on rent to a particular person, it is the law that such person will be said to be in possession of the house. He will also be presumed to be having domination and control over the articles kept in the house. 16. Even if the tenant is not the person who is having possession dominion or control over any particular property kept in the house, he will be the first person who can state the same. CRA.1241/07 9 But, the tenant is not before he court. He is neither questioned, not examined in this case. The best evidence would have been that of the tenant and he alone could have said that accused was in possession of contraband article or that he was in possession of the house despite execution of the rent deed. If he was examined, he could have explained in what manner appellant came in possession of the house or article kept in the house. 17. It is also relevant to note that the person who is residing on the first floor of the same building is another tenant of PW5. He was also not examined to prove whether appellant was residing in the house or whether he was in possession of the house in any capacity. It is not understood and there is no explanation why the most relevant witnesses are with held by prosecution to establish that appellant was in possession of the house or that he had domination control over the articles which are seized from the house. It is also pertinent to note that even the broker was not examined to state that appellant was in possession of the house at the relevant time. 18. To establish possession, prosecution has to prove that accused had domination control over the contraband article. In a case in which contraband article is seized from a building, the CRA.1241/07 10 best way to prove possession is to establish who was in possession of the building, because the person who is in possession of the building at the time of seizure will be presumed to be the person who is in possession of the articles kept in the house. In the absence of adducing best of evidence to establish possession of the building, by any particular person, the only statement given by PW5 that appellant was residing in the house on rent cannot be accepted. 19. Though PW5 would state that Ext.P22 was a rent deed executed by one Mohan @ Surya in respect of the building from where the contraband articles were seized, he gave evidence contrary to documentary evidence. It is to be mentioned here that PW5 being the owner of the property he will be the first person who will be responsible for the contraband article kept in the house and hence he will always be cautious to make any statement to exonerate himself from the criminal liability. His anxiety will be to shift his responsibility on some other person's shoulders. It is not comprehensible why PW5 gave evidence that appellant was residing in the house on rent, even though Ext.P22 the rent deed shows that house was given on rent to Mohan @ Surya. CRA.1241/07 11 20. According to appellant, “Mohanraj” is the friend of his and appellant was residing in the house only as a friend on the date of seizure. The officials came there and seized the contraband article from the house and he is not liable for possession of such article, is his contention. It is submitted by learned counsel for appellant that though contraband articles were seized from house, there is nothing in the bag to indicate whether appellant had anything to do with the bag. No documents or material objects were seized from the bag which contained Narcotic drugs to show that those bags belonged to appellant. 21. In such circumstances, prosecution failed to establish that house from where contraband articles were seized belonged to appellant or that those were taken from the possession of appellant, at the time of seizure or that he had any dominion or control over the contraband article which were seized from the house. Of course, statement under section 67 of the NDPS Act is recorded. The said statement is recorded in Tamil and English translation is produced. But learned counsel for appellant submitted that it is not a true translation of the Tamil version. This fact was pointed out to the trial court, but no effort was taken CRA.1241/07 12 to get the correct translation of the Tamil version. On comparing Tamil version and the English translation, I find that in the Tamil statement figures “1985” is written in one place but, it is not there in the English translation. 22. At any rate, the very presence of a person in a house from where the contraband articles were seized alone will not be sufficient to establish possession of the article with such person. Of course, a person who is not residing in a house also can said to be in possession of a particular article which is seized from the house, under certain circumstances but, to make such conclusion prosecution has to establish that accused was having control and domination over the article which was seized from the house. 23. But as pointed out by me earlier, circumstances under which accused took out two hags and handed over to PW4 will reveal that he was only handing over contraband article which were hidden in the house. But that by itself will not incriminate him with possession of contraband article, seized from the house, particularly since the question put to him was whether there was any contraband article hidden in the house, to which he answered in the positive and handed over the articles. This conduct may not be sufficient to hold that he was in possession of the articles. CRA.1241/07 13 24. Now coming back to the statement recorded under section 67 of the N.D.P.S act, it can be seen that accused had given statement that officials came in uniform “to my house”. But the evidence adduced in this case is contrary to what he had stated in statement under section 67 of the Act. The owner and tenant of the house are two other different persons as per evidence of PW5 and Ext.P22. There is nothing to show that contraband articles seized were belong to appellant or that he was in his possession at he time of search. 25. If as a matter of fact, appellant had taken house on rent in some other person's name and he was actually occupying the house, prosecution ought to have examined the person who took the house on rent or at least the broker who dealt with the rent transaction. In the absence of the same, it is not possible to hold that search was conducted in the house belong to the appellant or which was in his possession. Therefore, no value can be attached to the statement under section 67 of the evidence Act to conclude that contraband articles were seized from the house which belonged to the appellant as stated in the said statement. 26. It is relevant to note that appellant was not questioned regarding the rental arrangement with Mohan @ Surya which is CRA.1241/07 14 revealed from Ext.P22. If the house was actually rented out to Surya and accused did it deliberately, he would have definitely come forward with such defence while questioned under section 67 of the Act. But the fact that the statement does not contain such facts itself raises a doubt whether the said statement was given by appellant. Taking all the facts into consideration I find that prosecution failed to establish the case beyond reasonable doubt that article seized from house no.7/194 was in possession of the appellant. As per the charge framed by the court, there is no whisper that contraband articles were seized from the personal possession of the accused. But it is alleged that the articles were seized from his house and thereby he is in possession of contraband article. But, prosecution failed to prove seizure of contraband article from possession of accused. In the result, the following order is passed: (i) The conviction and sentence passed against appellant under sections 21(c), 27-A, 28 and 29 of NDPS Act are set aside. (ii) The appellant is found not guilty and he is acquitted of offences under sections 21(c), 27-A, 28 and 29 of NDPS Act. CRA.1241/07 15 (iii) The appellant is set at liberty forthwith. (iv) The appellant shall be released from prison forthwith, unless he is required in any other case. (v) Registry shall issue release order forthwith. This appeal is allowed. K. HEMA, JUDGE. Sou.