REENA VIJAYAN Vs. UNION OF INDIA

JUDGEMENT

(1.) All the Appellants in the above appeals are accused 1 to 5 in S.C. 112 of 1996 on the file of the Principal Sessions Judge, Thiruvananthapuram. The accused were found guilty by the learned Sessions Judge under Sections 8(c) and 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and they were sentenced to undergo Rigorous Imprisonment for 10 years and also to pay a fine of Rs. 1 lakh each, in default in the payment of fine, to undergo Rigorous Imprisonment for 1 year,

(2.) The facts and the evidence let in by the prosecution to support the conviction rendered by the learned Sessions Judge are briefly as follows: P.W. 1, one Horace Raj, was a lessee of the Kovalam Tourist Home and Hilltop Restaurant located at Kovalam and his lessor was P.W. 5 Soman. On 14th, February 1996, the Superintendent of Narcotic Control Bureau, Thiruvananthapuram got information that narcotic substances were to be disposed of in a Restaurant at Kovalam, namely Hilltop Restaurant. On receipt of the information, P.W. 15, one Murali, Investigating Officer, reduced the same into writing (Ext. P-20 report) and sent a copy of the same to Superintendent of Narcotic Control Bureau, Thiruvananthapuram (P.W. 13, S. Vijayan) and proceeded for the spot in the evening of 15th February 1996 with his party. He had also taken with him an independent witness, P.W. 4. lathe Restaurant, in the presence of P.Ws. 1 and 5, the raiding party recovered 15 grams of Hashish from the 1st accused Ramdas Swaminathan @ Vijayan and 75 grams of Hashish from the 2nd accused and 15 grams of Hashish from the 4th accused which was handed over to him by the 3rd accused under Ext. P-1 mahazar. Samples were also taken from the contraband recovered from the above said accused persons. The accused persons were arrested. The information which P.W. 15 received from the said spot was conveyed to P.W. 9, Superintendent of Central Excise and Customs, Ernakulam by 11.40 p.m. on 15th February 1996. P.W. 9, on receiving the information, recorded the same in Ext. P-27 report and informed it to the Assistant Commissioner of Central Excise, P.W. 14. through telephone and conducted a raid in the house of accused 1 and 5 (husband and wife) in the early morning of 16th February 1996, in the presence of P.W. 2, one Issack, and P.W. 3, one' Sree Vallabhan. During the course of the search, P.W. 9 recovered 740 grams of Hashish and 1,003 grams of white coloured substance and the sample taken from the Hashish was sent to P.W. 14, the superior officer. Fifth accused was also arrested. On considering the statements of the witnesses examined during the investigation and the materials collected by the Investigating Officers, the learned Sessions Judge framed charges, conducted trial and as pointed out above he finally concluded finding the accused guilty.

(3.) Mr. M. Ratna Singh, Mr. T. G. Rajendran and Mr. Anil Thomas, learned Counsel appearing for the 5th accused, Mr. Pirappancode V.S. Sudheer, learned Counsel appearing for the 1st and 2nd accused and Mr. M. Balagovindan, learned Counsel appearing for the 3rd accused in common contended that Ext. P-1 mahazar, dated 15th February 1996 said to have been prepared at Kovalam and Ext. P-3 mahazar, dated 16th February 1996 said to have been prepared in the house of accused 1 and 5 have not been properly established and in fact they contain surmises and conjectures, that the samples were not properly packed, sealed and sent to the Chemical Examiner for his examination and report and the person who produced the samples in the court and the person who had taken the samples to the Chemical Examiner were not examined and in view of this, the reports of the Chemical Examiner, marked as P-19 and P-41 could not be acted upon, that the mandatory provisions laid down in Sections 42 and 50 of the Act were not complied with, that the alleged lease in favour of P.W. 1 in respect of the Restaurant is not established and therefore it is highly doubtful that P. W. 1 was present at the relevant time as alleged by the prosecution to witness the arrest, recovery, etc., in the Restaurant at Kovalam. In addition to the above common contentions raised, the learned Counsel appearing for the 4th accused would contend that the prosecution has not established that the 4th accused was in conscious possession of the contraband. Learned Counsel appearing for the third accused would contend in addition to the above submissions that the prosecution has not established that the third accused was in possession of the contraband and in feet the arrest memo of the third accused marked as Ext. P-22 and the arrest memo of the 4th accused marked as Ext. P-24 would disclose that both the 3rd and 4th accused were found in possession of the contraband. That indeed is against the case of the prosecution. Further, a reading of Ext. P-1 mahazar would go to show that it is written by somebody and not by P.W. 15; Learned Counsel appearing For the 5th accused would further contend that an examination of the evidence let in by the prosecution and also the Judgment of the learned Sessions Judge would go to show that the 5th accused was not in possession of the contraband and on the other hand, they would go to show that the 5th accused was aware that the contraband was in her house. When that be so, it could not be said that the 5th accused was in conscious possession of the contraband as alleged by the prosecution. In fact the original charge against the 5th accused was that she had conspired with the other accused in possessing the contraband. But the Trial Court has convicted her for possession under Sections 8(c) and 20(b)(ii) of the Act. For recording conviction under the above sections for possession, practically there is no evidence.