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Judgment
A. Subbulakshmy, J.—A complaint was lodged against the accused under Sections 29 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 8(c) of the said Act as the accused during 19th February and June 1987 along with Manohar Panduray Kalpa agreed and conspired to do an illegal act to acquire, possess, transport and sell Heroin, a narcotic drug and in pursuance of the said agreement and conspiracy, the accused acquired the said heroin at Bombay possessed the same and transported it to Madras and sold a portion of the same.
On 24.6.1987 at 6.30 p.m. the accused was found in possession of 1.200 Kgs of Heroin (Brown Sugar) a narcotic drug in Room No.404, Bhagyam House Lodge, No. 11, Sunkurama Street, Madras - 1. PW1 was the Intelligence Officer, Narcotics Control Bureau, South Zone, Madras. On 24.6.1987 at about 6.30 p.m. he proceeded along with other officers to Bhagyam House Lodge in Sunkurama Chetty Street, Madras. He contacted the Assistant Manager there and he perused the register of arrival and asked about this accused and he was told that the accused was staying in room No.404 in that lodge. PW1 asked the Assistant Manager to bring a witness, who brought the witness by name, Krishnan and they all went to the room and the accused opened that room. That room was occupied by two persons. PW1 informed the accused and the other occupant that he would be searching the room. On searching, PW1 found a plastic bag M.O.1 on a stool inside the room. He found three biscuit pockets M.Os. 2 to 4 inside the bag. They opened M.Os. 2 to 4 which contain plastic packets containing brown sugar MOs 5 to 7. They were seized in the presence of PW2. On their questioning, the accused and the other occupant told them it was brown sugar. They were jointly having the brown sugar. They both also told that it belonged to them. Each of the pockets weighed 400 grams of brown sugar. PW1 seized M.Os. 1 to 7 under Mahazar Ex.P. 1 signed by witnesses. He gave copy of Ex.P. 1 to the accused and the other occupant and both of them received the same and acknowledged. M.Os. 5 to 7 were sealed in the presence of the accused and the witnesses. The receipt Ex.P.2 was also given to the accused. The accused wrote the statement in kanaris language, which is marked as Ex.P.3 and the English translation of the same is Ex.P.4. The accused has signed in Ex.P.3. PW1 has given a copy of the same to the accused. The accused was arrested and produced before the Magistrate. PW1 prepared the list of properties Ex.P. 5 and sent it to the Court and he also gave requisition Ex.P.6 for taking the sample and the sample was taken in the open Court and sent to the Laboratory.
PW3 received the contraband sample of heroin and analysed it and on analysis, he found the presence of diacetylmorphine and he issued the Analyst''s report Ex.P. 11. The Deputy Director, Narcotic Control Bureau, South Zone, Madras preferred complaint against the accused.
The case was tried by the Principal Sessions Judge and he found the accused not guilty and acquitted him. In arriving at such conclusion, the learned Judge has taken the view that from the mere fact M.Os. 1 to 7 were on a stool inside the room, it is not possible to hold that the accused alone was in possession of those articles and it is also not possible in this case to hold that Ex.P.3 is the voluntary statement of the accused and if the averments in Ex.P.3 are excluded then there is no evidence to prove that the accused was in conscious possession of MOs. 1 to 7 or that he conspired with Manohar Panduray Kalpa. The learned Judged has further found that PW3 has not estimated the percentage of Diacetylmorphine and the Chemical Examiner''s report Ex.P. 11 is silent about the same and so, the Prosecution has not established that the sample contains more than 0.2% diacetylmorphine.
Basing on the reasoning and conclusion arrived at by the learned Sessions Judge, the learned counsel for the respondent submitted that the order of learned Sessions Judge is sustainable and it cannot be interfered with. The learned counsel for the complainant /appellant submitted that the accused and the other person Manohar Panduray Kalpa were both found in possession of this contraband and they transported this from Bombay and they took the room in the lodge and they both were found in possession of this contraband. At the time when PW1 inspected the room No.404 in the Bhagyam House Lodge at Sunkurama Street, Madras, PW1 had found mat the room had been occupied by two persons and PW1 has told the accused and the other occupant that they would be searching the room. Accordingly, he searched the room in the presence of PW2. PWs. 1 and 2 found M.0.1 plastic bag on the stool in the room which contained M.Os. 2 to 4 in that M.Os. 5 to 7 plastic covers were found there which contained the heroin, PW1 also had weighed the heroin and has found that it weighed 1.200 Kgs. PW2 had found Ex.P2 receipt in the bag of the accused and for the seizure of those articles Ex.P. 1 mahazar was prepared in the room itself in the presence of PW2 and he has signed in the mahazar. So the evidence of PWs 1 and 2 proves mat M.Os. 1 to 7 were seized in the lodge in room No.404 which was in occupation of the accused and another person.
Ex.P.l mahazar and the evidence of PW1 prove that the appellant and one Manohar Panduray Kalpa were occupying room No.404 at the time of incident. Since the other accused Manohar Panduray Kalpa could not be apprehended, the case against him has been split up. The evidence of PW1 and Ex.P.l prove that the accused and the other person Manohar Panduray Kalpa were occupying the room and they identified themselves. Ex.P. 1 proves that both the accused and the other occupant Manohar Panduray Kalpa on enquiry by the officers replied that it was heroin and in their presence both admitted the ownership of the said brown sugar suspected to be narcotic drug. The accused and the other person Manohar Panduray Kalpa had also stated before the officers that they had jointly purchased the brown sugar and only then the officers conducted the personal check of the accused and the other occupant Manohar Panduray Kalpa and recovered Ex.P2 bill. The officers have searched the articles in the presence of PW2. PW2 was present at the time of seizure and has signed the mahazar Ex.P.l. So it is well evident that the contrabands were seized from the room where the accused and the other person Manohar Panduray Kalpa were in occupation of the room. The accused has also given the statement Exs.P.3 and P.4 before the officers. His friend Manohar Panduray Kalpa told him that doing business in brown sugar heroin is a very profitable business and they both invested amount and purchased that and came to Madras as they came to know that there is good market for brown sugar in Madras and they also said it to a Srilankan through a broker at Mannady area of Madras on a previous occasion and showed the profit.
In the statement, the accused has further stated that on 21.6.1987 himself and Manohar Panduray purchased 1.200 Kgs of brown sugar for Rs.32,000 and they reached Madras and took room at Bhagyam House Lodge, Madras-1 and they could not sell the brown sugar due to the low price in the market and the officers seized the brown sugar from them which was kept on the stool after searching the room. The accused has admitted in the statement that brown sugar was purchased by Manohar Panduray Kalpa and himself and they jointly transported from Bombay to Madras and he has given the statement without any pressure or compulsion and written in his own hand. The accused had given the statement before those officers. Those officers were not Police Officers. So any statement before those officers is admissible in evidence. The learned Sessions Judge has disbelieved this statement of the accused in Ex.P.4 and had come to the conclusion that if Ex.P.4 is discorded, there is no evidence to prove the guilt of the accused. The accused himself has stated in Ex.P.4 that he has voluntarily given the statement and it was not under the inducement of anybody. This statement reveals that himself and the other person Manohar Panduray Kalpa have purchased it and brought it to Madras and occupied the room. So it is clear from Ex.P.4 that both the accused and the other person Manohar Panduray Kalpa brought the heroin from Bombay and they were having it in that lodge. At the time of inspection by PW1, both the accused and Manohar Panduray Kalpa were present in the room and they were found in possession of the heroin.
Apart from Ex.P.4, the evidence of PW1 and Ex.P.l prove that both the accused and Manohar Panduray Kalpa were present in the room at the time of inspection and the contrabands were seized. PW2. who had also accompanied PW1, had also spoken in his evidence that when the door was opened in the lodge room, the accused and the ether person were present. In Ex.P.l mahazar also it is specifically stated that when the officers entered room No.404, it was noticed that two persons were occupying the room and on enquiry, the two persons identified themselves and they have given their names as G. Sudhakar (the present accused) and Manohar Panduray Kalpa. the other person against whom the case has been split up. So it is well evident from Ex.P.l and the evidence of PWs 1 and 2 that the accused and the other person Manohar Panduray Kalpa were present in the room as soon as the room was opened. Only these two persons had taken that room and they had brought the heroin from Bombay and they were having possession of the same in that lodge in room No.404. So there is ample evidence on the side of the complainant to prove that the accused and the other person Manohar Panduray Kalpa were in occupation of the room at the time of inspection by the officers and they both were found in possession of the heroin.
The evidence of PWs 1 and 2, Ex.P. 1 and the recital in Ex.P.4 prove that both the appellant and the other person, Manohar Panduray Kalpa were found in possession of brown sugar. The recital in Ex.P.4 clearly proves that both the accused and Manohar Panduray Kalpa purchased the brown sugar and jointly transported them to Madras and they jointly owned them. They both were found in possession of heroin at the time of inspection by PW1 which fact has been corroborated by the evidence of PW2. There is ample evidence on the side of prosecution to prove that both the accused and Manohar Panduray Kalpa were found in possession of heroin at the time of searching the room and both the accused and Manohar Panduray Kalpa were present and they alone were in possession of heroin in that lodge room.
The learned counsel for the respondent submitted that for possession, the mind of the person must-be having dominion over the object and the contrabands were found on the stool and it cannot be implied that the accused was in possession of the contraband. In the case of State of Kerala vs. K. Gopalan reported in 1963 MLJ (Cri) 418, this Court has held as follows:
Possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. It is not necessary that the physical power of dealing with the tiling should be retained at every moment of time. It would be enough for the purpose of retaining possession if that physical power can be produced at any moment the possessor wishes it. Possession in order to justify a conviction need not necessarily be in one''s exclusive possession. A person can be in possession jointly with others. If contraband is found in the joint possession of two persons in occupation of a house it can be presumed that both are in possession of the article. The presumption no doubt is rebuttable and the weight to be attached to it must vary according to the circumstances of each case. It can be rebutted by showing that the room or the receptacle in question was in the particular or exclusive possession of one member of the family. It can be rebutted by the accused proving that he did not know of the presence of the article, for instance, by showing that it was dumped there without his knowledge or privity. The prosecution, no doubt, should prove that each of the accused had either physical or constructive possession of the property and that one or more of them had possession thereof either physical or constructive on behalf of themselves and the other accused to the knowledge of the latter. If both the accused were thus in joint possession the presumption u/s 4 (2) (a) of the Madras Prohibition Act could be applied.
Only this accused and the other person Manohar Panduray Kalpa were in the room at the time of search by the officers. The room has been taken on rent by the accused. Ex.P.2 receipt issued by the Bhagyam House Lodge, Sunkurama Chetty Street, Madras - 1 proves that the accused had paid a sum of Rs. 100/- for room No.404 being the reservation advance amount. So the room has been taken in the lodge in the name of the accused and at the time of search the accused and the other person Manohar Panduray Kalpa were present. This clearly proves that only these people were occupying that room and apart from these people no one was present in that room. Only the contrabands were seized from that room and only this accused and the other person Manohar Panduray Kalpa were in possession of the contraband in that room. Only these persons were having dominion over the object and they all had the right of exercise over it.
The decision cited above states that possession in order to justify a conviction need not necessarily be in one''s exclusive possession and a person can be in possession jointly with others and if contraband is found in joint possession of two persons in occupation of a house, it should be presumed that both the persons are in possession of the articles. The contraband in the instant case was found in joint possession of this accused and the other person, Manohar Panduray Kalpa in the occupation of the room in the lodge house and applying the principles laid down in the decision cited supra, it can be presumed that both are in possession of the articles. Thus the occupants of room No.404 i.e., the accused and the other person Manohar Panduray Kalpa were in joint possession of those articles. Apart from these two persons namely, the accused and Manohar Panduray Kalpa, the possession cannot be attributed to any other person. Only this accused and the other person Manohar Panduray Kalpa are accountable for the heroin kept in that room. So, it can be safely concluded mat the accused and the other person Manohar Panduray Kalpa were in joint possession of die-contraband and both are responsible for it and the accused has committed the alleged offence by having in possession of heroin. The defence theory with regard to the seizure is that the seizure was made from the house of one Aboobucker in Vyasarpadi.
The Supreme Court in the case of Ashiq Miyan and Others Vs. State of Madhya Pradesh, has held that recovery of large quantity of opium from the house of the accused establishes the conscious possession of opium recovered from their house. The Apex Court has observed that the plea of their living separately and that the accused were not present at the time of recovery has to be decided against the accused.
In the case of In Re: Wahib Basha, this Court has held as follows:
The principle regarding possession is that a man has not the possession of that, the existence of which he is unaware of. Possession implies dominion and consciousness in the mind of the persons having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object.
Where two or more persons are charged with joint illegal possession, it is incumbent on the State to prove (a) that each of the accused had either physical or constructive possession of the property, or (b) that one or more of them had possession thereof either physical or constructive on behalf of themselves and the other accused to the knowledge of the latter.
From the decisions cited supra, it is seen that possession must be actual and not constructive and it must be to the knowledge of the possessor who must have dominion and control over the property and it must be exclusively except under rare circumstances. Possession and control are required to constitute offence and it means conscious possession and actual control. There must be mens rea or guilty knowledge before a person can be convicted of such possession when the person is ignorant of the presence of the offending article. Then, of course, it can be contended that he was not in possession. When there is clear evidence on the side of prosecution with regard to the possession and recovery of that article, it can be safely concluded that the person, who was found in possession, was in actual possession and he was having actual control over that article.
In the instant case, the property was recovered from the lodge room which was taken in the name of the accused and the accused was also present when the article was seized from that lodge room. Only this accused and the other absconding accused were present in that room at the time of seizure and they only opened the room. Apart from these two people, no one was present in that room. It is not a house or any other place where other persons are also expected to be present or occupying the premises. It is only a lodge room which room was taken in the name of the accused and the other person Manohar Panduray Kalpa and they both had come from Bombay, had taken this lodge room and were occupying the said room being in possession of the heroin. This heroin was taken from M.Os. 1 to 7 kept on the stool in that room which the accused was in possession. The possession in that room cannot be attributed to any other person accept this accused and the other person Manohar Panduray Kalpa.
The word ''possession'' implies a physical capacity to deal with the tiling as we like to the exclusion of every one and a determination to exercise that physical power on one''s behalf. This accused was found in physical possession by having kept it in that room. Only this accused was having dominion over the contraband. Except this accused and the other person Manohar Panduray Kalpa, no one can be said to have dominion over that property. Ex.P.4 seizure mahazar and the recovery of the article from the possession of the accused, who had taken that lodge room, cumulatively establish that only the accused was having possession of the heroin and he is liable to be punished for the offence committed.
The trial Court has observed that PW1 does not appear to have any motive to falsely implicate the accused when M.Os. 1 to 7 were seized from the house of Aboobucker. The trial Court has disbelieved the version of the defence that the seizure was made from the house of one Aboobucker and had found that on consideration of all those circumstances, it is satisfied that M.Os. 1 to 7 were seized by PW1 during the search of room no. 404 of Bhagyam House Lodge. The contraband was seized only from Door No.404 Baghyani House Lodge as evidenced by the evidence of PWs 1 and 2 and Ex.P.l. So it has been amply established that only this accused and Manohar Panduray Kalpa were found in possession of the contraband at the time of seizure. It has been clearly established on the side of prosecution that the accused was found in possession of heroin and he has committed the alleged offence.
The learned counsel for the respondent submitted that the Prosecution has not established that the sample contained more than 0.2% diacetylmorphine under the provisions of Narcotic Drugs and Psychotropic Substances Act and on that the case of the prosecution is vitiated. The learned trial Judge has also observed that the prosecution should have established that the sample contained more than 0.2% diacetylmorphine, but PW2 has not ascertained the percentage and the chemical examiner''s report Ex.P.4 is silent about the same and so the prosecution has not established that it contained 0.2% diacetylmorphine and so it is not possible to hold that M.Os. 5 to 7 contained narcotic drug as defined under the Act. Ex.P.l1. the chemical Analyst''s report shows that the contraband sent for analysis contained heroin diacetylmorphine.
Section 2(xvi) of the Narcotic Drugs and Psychotropic Sub-stances Act relates to opium derivative. Section 2(xvi)(d) of the Act states that opium derivative means diacetylmorphine that is the alkaloid also known as diamorphine or heroin and its salts and 2 (xvi) (e) of the Act states that all preparations containing more than 0.2% of morphine or any diacetylmorphine. Relying upon this, he submitted that the contraband must contain 0.2% of diacetylmorphine. Section 2(Xvi) (d) of the Act does not indicate any percentage. The contraband, which was seized from the accused is heroin diacerylmorphine. Section 2(xvi) (e) of the Act also indicates that all preparations containing more than 0.2. percent of morphine or containing any diacetylmorphine. Section 2(xvi)(d) of the Act indicates preparation containing more than 0.2% of morphine is opium derivative or preparation containing any diacetylmorphine. No percentage is described for diacetylmorphine. The wording preparation containing any diacetylmorphine does not indicate any percentage. Preparation containing any diacetylmorphine is opium derivative. Diacetylmorphine alkaloid is known as heroin or diacetylmorphine.
In the instance case, the contraband contained heroin diacetylmorphine. It clearly falls under the provisions of the Narcotic Drugs and Psychotropic Substances Act. On a careful analysis of the entire evidence and documents, it is clearly proved that the accused was found in possession of Narcotic Drug and he has committed the offence under Sections 29 and 21 read with 8(1)(c) and Section 21 read with 8(c) of the Narcotics Drugs and Psychotropic Substances Act. So the order of the trial Court is liable to be set aside. The prosecution has proved the guilt of the accused for the alleged offence.
In the result, the appeal is allowed. The accused is found guilty under Sections 29 and 21 of the Narcotic Drugs and Psychotropic Substances Act. 1985 read with Section 8(c) of the said Act. Registry is directed to issue NBW. to the accused for production of the accused before this court on 3.12.1999. This Appeal having been posted on this day for further orders in the presence of the aforesaid Advocates the Court made the following Order: -
Non Bailable Warrant was issued by the registry for production of the accused and it has been returned unserved with the endorsement "left". The NBW issued against the accused could not be executed because of the non availability of the accused. So. it is evident that the accused could not be secured as his whereabouts are not known. Sec. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, prescribes the minimum punishment to be imposed for the offences committed by the accused under this Act. Hence, I find that even in the absence of the accused, minimum sentence can be imposed and the trial court can be directed to secure the accused to undergo the sentence of imprisonment.
The accused is convicted and sentenced to undergo the minimum sentence of R.1. for ten years and to pay minimum fine of Rs. 1,00,000/- in default to undergo R.1. for two years. The trial court is directed to apprehend the accused by issuing NBW to undergo the remaining period of sentence and also to realise the fine amount.