Rasheed vs The Sub Inspector Of Police

Judgment in S.C.No.14/2011, dated 25.03.2014 on the files of the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act' hereinafter), Vatakara, is under challenge in this appeal filed under Section 374(2) of the Code of Criminal Procedure, at the instance of the sole accused.

Heard the learned counsel for the appellant/accused and the learned Public Prosecutor, in detail. Perused the verdict impugned along with the records of the Special Court.

The prosecution case is that, around 4 p.m. on 19.6.2010, PW8, the Sub Inspector of Perumpadappu Police Station had seized 150 grams of dry ganja from the conscious possession of the accused from the bye-lane on the eastern side of Jaz Jewellery and on the western side of Pathanpallippara road in Perimpadappu. On the same day, based on disclosure statement given by the accused, while he was in custody, 1900 grams of dry ganja was also recovered when it was taken and produced by the accused before the Sub Inspector from the bed room of the dwelling house occupied by the accused and his family members bearing door No.P.P.18/296 at Punnayurkulam. On this premise, the prosecution alleges commission of offence punishable under Section 20(b)ii(B) of the NDPS Act, by the accused.

In this matter, the Special Court framed charge for the aforesaid offence and proceeded with trial. During trial, PW1 to PW11 were examined, Exts.P1 to P19 and MO1 to MO6 were marked on the side of the prosecution. Exts.D1 and D2 were marked on the side of the defence. No oral evidence was adduced by the defence.

On appraisal of the evidence, the learned Special Judge found that the appellant/accused had committed offence punishable under Section 20(b)ii(B) of the NDPS Act. Accordingly, he was convicted and sentenced as under:

While assailing the verdict impugned, the learned counsel for the appellant/accused raised a vital point to unsustain the verdict. According to him, here, the contraband to the tune of 1900 grams of ganja was alleged to be possessed by the appellant/accused in a house owned by his mother, where according to the prosecution case, the accused, his mother and other family members had been living. In such situation, the conscious possession of the contraband at the helm of the appellant/accused could not be found individually against him, so that the possession of 1900 grams of ganja alleged by the prosecution is in the midst of doubts and in such view of the matter, the verdict would require interference.

In order to buttress his contention, the learned counsel for the appellant/accused has placed the decision of the Hon'ble Apex Court in Crl.A.No.1284/2003 in State of Rajasthan v. Dulichand where the Hon'ble Apex Court considered a judgment of acquittal recorded by the High Court after setting aside the sentence imposed against the appellant therein finding commission of offence punishable under Section 18 of the NDPS Act and in paragraph Nos.1, 2, 3 and 4 (paragraph Nos. not specifically found in the judgment produced) where the Hon'ble Apex Court held as under:

It is also submitted by the learned counsel for the appellant/accused that in the decision in Mohd.Alam Khan v. Narcotics Control Bureau & Another reported in [1996 (9) SCC 462], where the Hon'ble Apex Court considered the ingredients to apply Section 66 of the NDPS Act.

Whereas, the learned Public Prosecutor would submit that in this case, initially, the accused was nabbed on finding possession of 150 grams of dry ganja at 4 p.m. on 19.6.2010 and when he was questioned in custody, he had disclosed that he had kept ganja at his residential house disclosing its authorship of concealment and accordingly, the Investigating Officer followed him and the accused took 1900 grams of ganja from his bedroom of the dwelling house occupied by the accused and his family members, bearing door No.P.P.18/296 at Punnayurkulam. Therefore, the conscious possession of the same in case of contraband recovered under Section 27 of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’ hereinafter), cannot be disputed for any reason and the facts of the case dealt by the Hon’ble Apex Court in the decision in Dulichand’s case (supra) and the ratio therein have no application in the present case. Therefore, the prosecution successfully established the ingredients to find the commission of offence punishable under Section 20(b)ii(B) of the NDPS Act.

Adverting to the rival contentions, the points arise for consideration are;

The learned Special Judge mainly relied on the evidence of the Detecting Officer, who was examined as PW8 and PW1, the accompanying officer. PW7 was examined as an independent witness to corroborate the evidence of PW8 and PW1, in addition to the evidence of PWs 2 to 4. Apart from that, PW5, an independent witness residing close to the house of the accused even though turned hostile to the prosecution, he had admitted his signature in Ext.P3, the search and recovery mahazar.

The crucial evidence in this case is that of the Detecting Officer, who was examined as PW8. He deposed regarding the detection and seizure of ganja from the accused on 19.06.2010. He testified that on 19.06.2010, he was working as the S.I. of Perumbadappu Police Station. On that day, at 15.30 hours, a person had informed him over the official mobile phone that a young man wearing a dhoti and a green-coloured shirt was standing with a plastic cover for selling ganja in a bye-lane situated on the eastern side of Jas Jewellery and on the northern side of Puthanpallipara Road. The information had been recorded in the General Diary and its extract had been sent to the C.I. of Valanchery, who was in charge of his superior officer on that day. The extract of the information was marked as Ext.P6. Thereafter, this witness and the police party had reached the aforesaid place at 16.00 hours and identified the accused as the person mentioned in the information. His name and address were ascertained. PW8 informed the accused that they had reached the place on receiving information that he was in possession of ganja and that his person as well as the plastic cover in his possession had to be searched. He further informed the accused that he had a legal right to be searched in the presence of a Magistrate or a Gazetted Officer. The accused stated that he did not require the presence of a Magistrate or a Gazetted Officer and that PW8 himself could conduct the search and the accused gave Ext.P7 written declaration to that effect in his own handwriting. Thereafter, in the presence of two independent witnesses, after informing them of the circumstances, PW8 and the said witnesses conducted search of their persons and satisfied themselves that no contraband had been concealed on them. PW8 then searched the person of the accused, but no contraband was found on his person. On examining the plastic cover held in the right hand of the accused, a paper packet was found inside it and, on opening the same, it was found to contain ganja. The accused was arrested for possessing ganja. The arrest and inspection memo prepared in that regard was marked as Ext.P8. Thereafter, PW8, along with the accused and the witnesses, proceeded to Aiswarya Jewellery nearby and, with the assistance of a goldsmith, weighed the ganja using an electronic balance. The ganja alone weighed 150 grams. 20 grams from the same were taken as sample for chemical analysis and packed in a polythene cover, to which a signature slip bearing the signatures of the accused, PW8 and the independent witnesses were affixed. The polythene cover was thereafter packed in white paper, and another signature slip bearing the said signatures was affixed. The packet was tied, sealed with the SHO's seal and marked as S1. The remaining 130 grams of ganja was packed in another polythene cover following the same procedure adopted for taking the sample, and the packet was packed and sealed and marked as P1. The cover in which the ganja had been kept and the newspaper in which it had been packed by the accused were separately taken into custody. Those articles were not sealed. The seizure mahazar prepared in respect of the same was marked as Ext.P5. Thereafter, they returned to the police station along with the accused, material objects and documents, and registered Crime No.164/2010 under Section 20(b)(ii)(A) of the NDPS Act. The FIR was marked as Ext.P9. Thereafter, on questioning, the accused while in custody, he had given disclosure statement that more ganja had been kept at his house and that, if he would be taken there, he would show the same. Accordingly, led by the accused, they proceeded to House No.18/296 at Punnayur Kulam in Andathur. Then at 18.30 hours, the accused took out from the eastern room of his house a paper packet and a polythene-covered packet. On opening both the packets and examining their contents, the same found to be ganja. In the presence of the goldsmith, the ganja was weighed using an electronic balance. The ganja contained in the newspaper packet weighed 905 grams, whereas the ganja contained in the polythene-covered packet weighed 995 grams. 100 grams were taken as a sample from the same for chemical analysis and packed in a polythene cover, to which a signature slip bearing the signatures of PW8, the accused and the independent witnesses was affixed. The packet was thereafter packed in white paper, and a signature slip bearing the said signatures was affixed. It was tied with twine, sealed and marked as S2. The remaining 805 grams of ganja was also packed and sealed following the same procedure and marked as P2. From the ganja contained in the polythene-covered packet, 50 grams was taken as a sample for chemical analysis, packed following the same procedure and marked as S3. The remaining 945 grams of ganja was also packed and sealed following the prescribed procedure and marked as P3. The plastic cover and the newspaper in which the ganja had been kept were also packed and sealed and marked as B1. A contemporaneous seizure mahazar was prepared in respect of all these articles and was marked as Ext.P3. The relevant portion of the confession statement of the accused, which had ultimately led to the detection of 1900 grams of ganja was marked as Ext.P10. The seized materials were brought to the police station and kept in the safe custody of PW8 on that day and were thereafter produced before the court along with two property lists. The property list relating to the articles seized as per Ext.P5 was marked as Ext.P11, and the property list relating to the material objects seized as per Ext.P3 was marked as Ext.P12. He also deposed about the production of the contraband before the court on the very next day. The detection of the case had been reported to the C.I., and the report under Section 57 of the NDPS Act was marked as Ext.P13. The remaining ganja, after taking the sample in respect of the seizure covered by Ext.P5, was identified by this witness and marked as MO1. The remaining ganja from the plastic cover seized as per Ext.P5 mahazar was marked as MO2. The remaining ganja seized as per Ext.P3, after taking the sample, was marked as MO3. The 995 grams of ganja taken from the polythene-covered packet, which had been seized as per Ext.P3, was marked as MO4. The plastic cover in which the accused had kept the ganja in his house was marked as MO5. The Siraj newspaper in which the ganja had been packed and which had been seized as per Ext.P5 was marked as MO6. Thereafter, the investigation of the case was taken over by the C.I.

PW1, the accompanying police officer and A.S.I. of Perumbadappu Police Station, deposed that on 19.06.2010, while he was working at the station, the S.I. had called him and stated that one person was selling ganja in the lane near Jas Jewellery, on the northern side of the road at Perumbadappu Para. Along with other police officers, they had left the station at 15.30 hours and reached the said place at 16.00 hours, where they identified the accused. This witness corroborated the evidence of PW8 with regard to the detection and also with regard to informing the accused of his legal right under Section 50 of the NDPS Act. PW8 had asked the accused whether he opted to exercise his legal right to be searched in the presence of a Magistrate or a Gazetted Officer. The accused had not opted for the same and had given a consent letter to PW8, the S.I., permitting him to conduct the search. Thereafter, PW8 had detected 150 grams of ganja from the possession of the accused, from which 20 grams had been taken as a sample, packed and sealed, as stated by PW8. The sample had been packed in a polythene cover and white paper, and the SHO's seal had been affixed along with signature slips. The sample was marked as S1 and the packet containing the remaining ganja was marked as P1. This witness also stated that the accused had been arrested at 16.45 hours in front of Jas Jewellery. Thereafter, they had proceeded to the police station along with the accused and reached there at 18.00 hours. The S.I. had registered a case against the accused, and a seizure mahazar had also been prepared at the place of occurrence. When the accused was questioned by PW8, he had disclosed that the remaining ganja, which had been kept for sale, was at his house in Punnayur Panchayat. Accordingly, they had proceeded to Punnayur, led by the accused. At 18.30 hours, they had reached the house of the accused. The accused had pointed out the eastern bedroom and, from beneath the cot, had taken out a plastic cover containing a blue plastic cover, which was packed in a red plastic cover. On examination in the presence of two witnesses, the contents were found to be ganja. The ganja had thereafter been weighed. This witness had fully corroborated the evidence of PW8 regarding the detection of ganja from the house.

PW2, the Village Officer of Perumbadappu, proved Ext.P1 sketch plan showing the place of occurrence in the bye-lane. PW3, the Village Officer of Punnayurkulam, proved Ext.P2 sketch plan showing the house of the accused, where from 1900 grams of ganja was seized.

PW7, the independent witness, corroborated the evidence of PW8 and PW1 with regard to the seizure. He deposed that at about 4.00 p.m. on 19.06.2010, in front of the road near Jas Jewellery at Perumbadappu Para, the accused was found holding a cover in his hand. When PW8 examined the cover, it was found to contain ganja. The ganja was thereafter divided into two packets and seized by the police, and a seizure mahazar was prepared in respect of the same. This witness had also affixed his signature to the seizure mahazar. He identified his signature therein, which was marked as Ext.P5.

PW4 identified the signature appearing in the seizure mahazar, which was marked as Ext.P13, while stating that he had signed the mahazar in front of his house. He further stated that the Investigating Officer had not questioned him. PW4 turned hostile to the prosecution except for admitting his signature in Ext.P13. Therefore, he was cross-examined by the learned Public Prosecutor to impeach his credibility.

In this case, the evidence of PW8 would show that initially, 150 grams of dry ganja was seized from the conscious possession of the appellant/accused, for which, Ext.P9 FIR in Crime No.164/2010 alleging commission of offence punishable under Section 20(b)(ii)(A) of the NDPS Act was registered and after arresting and questioning the accused in custody, he disclosed about authorship of concealment of ganja from his dwelling house and as led by the accused, they reached to his residential house bearing No.P.P.18/296 at Punnayur Kulam in Andathur and at about 18.30 hrs., the accused had taken one paper packet and a polythene cover packet from the eastern bed room of his house and produced before the Investigating Officer, upon opening both these packets on smelling, the officer found the same was ganja. Accordingly, in the presence of the goldsmith, a electric balance was brought and the ganja was laid, when it was found that the ganja therein wrapped in a newspaper packet was 905 grams of ganja and in the polythene cover was 995 grams.

The main challenge raised by the learned counsel for the appellant/accused to unsustain the verdict impugned is by pointing out the fact that when 1900 grams of dry ganja was alleged to be seized from the residential house where the accused along with his mother and other family members had been living, its conscious possession could not be attributed against the appellant/accused in exclusion of the other residents in the family. According to him, in the said circumstances, conscious possession of 1900 grams of dry ganja by the appellant/accused, as alleged by the prosecution, is in the midst of doubt and therefore, the appellant/accused is entitled to get benefit of doubt.

Even though this argument appears to be impressive at first blush, on examining the evidence of PW8 regarding the mode of recovery of 1,900 grams of ganja, the said argument becomes feeble and unsustainable. That is to say, PW8 categorically deposed that, after the arrest of the accused, when he was found in possession of 150 grams of dry ganja while in police custody, he made a disclosure statement that more ganja had been kept at his house and that he would show the same if he would be taken to the place of occurrence. On the basis of the said disclosure statement, PW8 followed the accused and proceeded to his residential house at 18.30 hours. The accused took out one paper packet and one polythene-covered packet from the eastern bedroom of his house, which contained 1,900 grams of ganja. Thus, the recovery in this case was effected by the accused in terms of Section 27 of the Evidence Act, after disclosing the fact of concealment of the contraband and voluntarily taking out the same from his own room, where he had concealed it. In such a case, conscious possession of 1,900 grams of ganja could not be attributed to any others residing in the same house other than the accused. Being so, the contention raised by the learned counsel for the appellant/accused that conscious possession of 1900 grams of ganja by the appellant/accused could not be established would necessarily fail. Thus, in the facts of the case, the ratio in the decision in State of Rajasthan v. Dulichand reported in [(2009) 12 SCC 84] placed by the learned counsel for the appellant/accused also could not be applied.

In fact, no doubts could be found from the prosecution evidence, as argued by the learned counsel for the appellant/accused to unsustain the same. Being so, this Court has no hesitation in holding that the learned Special Judge rightly appreciated the evidence and arrived at the conclusion that the appellant/accused committed the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. Therefore, the conviction is liable to be confirmed.

Coming to the sentence, in response to the argument tendered by the learned counsel for the appellant/accused to reduce the sentence, I am inclined to reduce the sentence for a period of two years while maintaining the fine, as such, and by reducing the default sentence for a period of six months.

In the result, this appeal is allowed in part. The conviction imposed by the learned Special Judge is confirmed. The sentence is modified as under:

The appellant/accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.75,000/- (Rupees Seventy Five Thousand only) and in default of payment of fine, to undergo rigorous imprisonment for a period of six months.

The order suspending sentence and granting bail to the appellant/accused stands cancelled and the bail bond executed by the appellant/accused also stands cancelled. The appellant/accused is directed to surrender before the Special Court, forthwith to undergo the modified sentence, failing which, the Special Court is directed to execute the sentence, without fail.

Registry is directed to forward a copy of this judgment to the Special Court, forthwith, without fail, for information and compliance.