Kerala High Court
State Of Kerala vs Arun Valenchery on 18 September, 2001
Equivalent citations: 2002CRILJ2512
Author: J.B. Koshy
Bench: J.B. Koshy, K. Padmanabhan Nair
JUDGMENT J.B. Koshy, J.
1. This case was referred to us by a learned Single Judge of this Court regarding the interpretation of Section 293 of the Criminal Procedure Code in the light of the judgment of the Apex Court in State of Rajasthan v. Doulat Ram (AIR 1980 SC 1314). We will deal with the referred question after considering the facts and merits of the case.
2. The State questions the acquittal of the accused in C.C. NO. 39 of the 1997, who was charge sheeted for offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act'). The accused in the case was a practicing lawyer and was a junior to Advocate Sri. V.V.N. Menon whose office was housed at the relevant time in room No. 301 of Queen Mary Hotel, Ernakulam, which was adjacent to the High Court. According to the prosecution the accused was found in unauthorised possession of Buprenorphine Tidigesic injection ampoules 97 in number in 2ml. ampoules at about 6.30 p.m. on 6.10.1996 in room N o. 301 situated in the third floor of Queen Mary Hotel which was located at the junction whereat Shanmughan road joins Banerji road in Ernakulam Village. It was also alleged that the accused was found in unauthorised possession of Tidigesic injection ampoules 2275 in number in 2ml. ampoules and Phenergan injection ampoules 65 in number in 2ml. ampoules at about 8 p.m. on 7.10.1996 in the north-eastern room of the house bearing No. C.C. 50/100 (C) situated at Ponekkara in Edappally North Village under his occupation. It is the case of the prosecution that the ampoules were meant of sale and accordingly the accused has committed an offence punishable under Section.22 of the N.D.P.S. Act.
3. PW15 who detected the offence and seized the contraband articles deposed that when he questioned one Richard, accused in Crime No. 387 of 1996 of the Central Police Station, Ernakulam, it was gathered that he purchased the psychotropic substance from the accused who was staying in Queen Mary Hotel. Accordingly, PW 15 and other officials came to room No. 301 of Queen Mary Hotel at about 6.20 p.m. and the contraband articles were recovered. During investigation they also found that the accused was in occupation of the room of building No. 50/100 (C) of Cochin Corporation situated at Ponekkara owned by one Mariam Beevi. Therefore, that place was also searched and seized the contraband articles. It is the case of the accused that he never committed any offence as alleged and on the other hand to wreak vengeance as against him a false case has been foisted by the concerned officials. Apart from the recovered articles, to prove the case, PWs. 1 to 15 were examined.
4. PW1 the clerk of Advocate Sri. V.V.N. Menon whose office was housed in room No. 301 of Queen Mary Hotel, turned hostile. He was examined by the prosecution to prove the seizure of MO1. He deposed that PW15 and other officials came to the said room and that Circle Inspector had shown him 4 packets taken from a plastic cover kept on a cot in that room. He identified MO1 plastic bag and also deposed that he is an attester to the Mahazar. But his evidence will not support the case of the prosecution to connect the accused with MO1 bag. Prosecution was also not able to prove the case by examining PW2, the Manager of Queen Mary Hotel, even though he also deposed that the room was let out to Advocates Sri. V.V.N. Menon and accused was one of his juniors. PW3 was cited to prove seizure from the house of Mariam Beevi, PW4. PW3 also turned hostile. PW4 i sone Mariam Beevi who was the l and lady of the building No. C.C. 50/100(C) of Cochin Corporation. She deposed that the house was let out to PW13 Suresh. It has come out in evidence that Suresh is an advocate and Suresh was examined as PW13. He admitted that he took the room on lease and he sublet the above to various other advocates including accused and that MO4 air bag containing the contraband items was seized from the room. He also stated that there is possibility that MO5 brief case may belong to the accused. PW9 a Gazetted Officer and PWs. 7 and 8 Police Constables were examined to prove the seizure from Mariam Beevi's house. They were also declared hostile by the prosecution. From the evidence it was found that room No. 301 of the queen Mary Hotel was leased to Sri. V.V.N. Menon and he was using it as his office. The accused was one of his juniors and he was also coming there. An advocate clerk. PW1 was residing there. There was another junior called Gopakumar. Some times he also used to stay there. The clients and others were coming there because it was an advocate's office open to the public. Similarly, the house of Mariam Beevi was taken on rent by PW13. The prosecution was not able to prove that the contraband items seized were in possession of the accused or accused was keeping the same.
5. The evidence was considered in detail by the court below. Since the entire evidence was discussed, we are not repeating the same, but we are quoting the same. The Sessions Court observed as follows:
"...Coming to the seizure effected at room No. 301 of Queen Mary hotel it is to be noted that the said room is the office of advocate Sri. V.V.N. Menon (PW6) under whom accused is practicing as a junior. With respect to that room it is stated by PW1 the advocate clerk of advocate that Sri. Menon and Gopakumar were residing in the very same room. The evidence with respect to the seizure from room No. 301 is that the accused handed over a packed kept on the cot to PW15 as required by him. This room i snot in the exclusive occupation of the accused and on the other hand apart from the accused other persons also have access to this room.The contraband said to be recovered form room. No. 301 was not kept concealed in that room and on the other hand it was found on a cot, and is handed over by accused to PW15 as required by him. Having regard to the accessibility of other persons to room No. 301 of Queen Mary hotel and having regard to the manner in which the contraband was found in the room it cannot be safely concluded that it was the accused and none else who has kept the contraband on the cot which he handed over to PW.15 as required. With respect to the seizure in room No. 301 what the accused would state in his 313 questioning is that police party came to the room referred, that by about that time there was a power court at about 6.30 p.m., that thereafter at 7p.m. when supply was restored he found PW 15 placing the polythene bag above the table in the room. Coming to the seizure effected at the building owned by one Mariam Beevi the evidence thereof as mentioned earlier are that of a PWs. 3,7,8,9, 13 and 15. PW.4 Mariam Beevi has stated that building bering No. C.C. 50/100 (C) belongs to her and she has let out the same to advocates Suresh (PW.13) for a period from 15.9.1996 onwards for a monthly rent of Rs. 2,000/- PW.13 Suresh has testified that he has sub let the room to some advocates including accused and an advocate clerk PW1.PW.13 advocate Suresh is declared hostile and Exts. P23 to P23(e) are portions of C.D. Statement used to contradict him. Though prosecution attempted to prove through this witness that accused was residing in the building at the relevant time he has denied this aspect and he would say that accused has kept some of his belongings in that building in a room of the building. Further he would say that the personal belongings of the sub lessees referred were not separately kept and on the other hand the items were placed together here and there. PW1 Jayachandran Nair has also not supported the prosecution case that sub lessees stated residence in the rented building. He has further stated that the personal belongings of the accused were kept in the room occupied by him. This witness would say that M.O.4 air bag wherefrom the contraband items were seized belongs to him. In this context it is pertinent to refer to Ext. P19 search list whereunder the contraband items are seized. Though while in the witness box PW.15 has stated that contraband items were seized from M.O.4 air bag and M.O.5 suitcase it is not so stated in Ext.P19 search list. Item No. 7 (M..4) in Ext. P19 search list is described as:
Item No. 8 in Ext. P19 search list is M.O.5 suitcase. There is no mention in Ext. P19 to the effect that contraband items are taken from M.O. 5 suitcase. When PW.15 was questioned on the defence side whether any contraband has been taken from M.O. 5 (suitcase) as per recitals in Ext. P19, he has stated that on account of some mistake happened it could not be so stated and it is from his memory he is deposing that contraband items are recovered from M.O. 5 suitcase where in personal belong is of accused such as pass book, S.S.L.C. Book etc. were found. There is no reliable evidence to the effect that the room wherein M.O. 4 and 5 were kept was in the exclusive occupation of accused and according to PW1 accused has kept his belongings in the room occupied by him. PW.1 has further claimed that M.O. 4 air bag belongs to him. The stand of the accused it that he never stayed in the room and on the other hand he was away at Trivandrum and Bangalore at the relevant time and the contraband items seized are not from his possession. As mentioned above there is no mention in Ext. P19 that contraband items are seized from M.O. 5 suitcase which as per evidence belongs to accused in the case. So from the recovery effected at building NO. C.C. 50/100(C) it cannot be safely held that the items seized were in the exclusive possession of the accused. It is to be noted that the building involved is accessable to different persons at testified by PW.13..."
There, on the basis of the analysis of the evidence a finding of fact, he found that the office room housed i the building involved was assessible to different persons and prosecution was not able to prove that it was possessed by the accused. Since prosecution failed to prove that the contraband articles were recovered from the possession of the accused, in the absence of any other evidence to connect the accused with the crime he was acquitted.
6. No question of law was raised in the memorandum of appeal, but only stated that appreciation of evidence was not correct. On going through the evidence it is seen that the learned Sessions Judge has correctly analysed the evidence and came to the conclusion that prosecution was not able to prove that the contraband articles were recovered from the possession of the accused. In any event it cannot be stated that it is not possible view. In fact Richard from whom PW15 got information that accused was selling the contraband articles was not examined. Apart from the fact that these articles were seized from room No. 301 of Queen Mary Hotel which was let to Advocates Sri. V.V.N. Menon, wherein the accused used to come for practising as a junior, and from the house of Mariam Beevi which was let out to PW13 the contraband articles were seized, there is nothing on record to prove that the accused possessed these articles. Learned Public argued that under Section 54 of NDPS Act, if any narcotic drugs or psychotropic substance is found to be in possession of the accused, there is statutory presumption that he has committed the offence unless contrary is proved if he fails to account possession of the same satisfactorily. This is a rebuttable presumption. Here neither room 301 of the Queen Mary Hotel was owned or leased by the accused. What is proved is that accused has also access to the above places wherefrom the seizure was effected along with many others. Possession of the contraband articles by the accused was not proved. Only if that is proved, presumption under Section 54 will arise and then only accused needs to account for the possession. It is for the prosecution to prove beyond reasonable doubt that contraband articles were seized from the possession of the accused as held by the Apex Court in Bala Ram v. State of A.P. (2001 AIR SCW 4120).
7. On appreciation of evidence it is clear that there is no material irregularity in appraisal of evidence of lack of coherence in the judgment of the lower court. It cannot be stated that findings are erroneous based on unwarranted assumptions. It is settled law that an order of acquittal cannot be interfered with when findings are not perverse and a reasonably possible view has been taken which is fortified with evidence we are of the error of law or miscarriage of justice. On re-appraisal of the evidence we are of the view that appellant was not able to show that finding of the court below is not a reasonably possible view. In this connection we refer to the Apex Court decisions of Prandas v. The State (AIR 1954 SC 36) and in Awadesh and Anr. v. State of M.P. (AIR 1988 SC 1158). Since the order of acquittal was passed on a reasonably possible view, we are not inclined to interfere with the appeal field against the order of acquittal passed by the Sessions Court.
8. This case was referred to us by a learned Single Judge on a question of law. The following is the question of law referred us:
"During hearing relying on the decision in State of Rajasthan v.Doulat ram (AIR 1980 SC 1314), it was argued by the respondent that in the absence of evidence of the Analyst and Court Official, who dealt with the article after it was produced by the Police before Court, it cannot be safely inferred that the article which reached the Chemical Analyst was the same as that produced in court. Section 293 of the Code of Criminal Procedure provides that report of Scientific Expert can be accepted in evidence. Under Section 293(2) the Court need summon and examine the Expert only if it thinks fit. The question arise whether arises whether in the absence of oral evidence of the Expert and the Court Official, it can be inferred that the article produced before the Court was the same as examined by the Expert.The question whether in all N.D.P.S. Cases examination of the Officers, who dealt with the article in Court and sent it for examination by the Analyst is essential also arises."
8. On the facts of this case, since the possession of the articles was not proved by the prosecution this question will not arise. Since the question is referred to us, we are also looking into the matter. The decision of the Supreme Court in State of Rajasthan v. Doulat Ram (AIR 1980 SC 1314) is not dealing with the interpretation of Section 293 of the Criminal Procedure Code reds as follows:
"293. Reports of certain Government scientific experts:-
(1) Any document purporting to be report under the hand of a Government scientific expert to whom this section applies upon any mater or thing duly submitted to him for examination or analysis and report in the course of any proceedings under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report.
(3) Where any such expert is summoned by a court and he is unable to attended personally, he may, unless the court has expressly directed him to appear personally depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in court on his behalf:
(4) This section applies to the following Government scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government".
9. As provided under Section 293(2) on the facts of each case, court has to exercise the discretion whether expert has to be examined. Even under Section 293(3) Court has power to issue express direction for the presence of analyst. Whether an analyst or an official is to be summoned, whether there is serious infirmity in not examining such witness etc. have to be decided on the facts of each case. The Supreme Court in the above case considered a case where the samples changed several hands before it reached the Public Analyst. Therein the Supreme Court held as follows:
"....samples remained in the custody of S.l. Aidanram, P.S. Udai Mandir Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that prosecution failed to rule out the possibility of the samples being changed or tampered with during the period-a fact which had to be proved affirmatively by the prosecution. The is the main infirmity which has bene relied upon by the High Court in holding that the prosecution has not proved that right from the stage of the seizure of the opium up to the time when the samples were handed over to the public analyst the seals remained intact. The prosecution has not taken the court into confidence in disclosing as to the reasons why the office of the Superintendent of Police refused to take the samples..."
10. On the facts of that case Supreme Court found that prosecution was not able to prove that the article which was produced by the Police was the article which was sent for analysis. Therefore it is clear that the decision of the Supreme Court in AIR 1980 SC 1314 is not in any way affects the interpretation of Section 293 of the Criminal Procedure Code.
11. We answer the reference accordingly and the criminal appeal is dismissed.