Soman vs State Of Kerala

Johnson John, J

The appellant is the accused in S.C No.3 of 2007 on the file of the Special Judge for NDPS Act Cases, Thodupuzha and he is challenging the conviction and sentence imposed on him for the offence under Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act).

The prosecution case is that on 08-10-1997, PW1 Circle Inspector of Narcotics Enforcement Squad, Adimali got information that ganja is cultivated in the property of the accused and for conducting raid, he proceeded to the place together with other Excise Officials and independent witnesses. PW1 and party detected 85 ganja plants in the property of the accused and after taking three plants as samples, the remaining ganja plants were destroyed. PW1 registered Ext.P6 crime and occurrence report and PW7 filed the final report, after completing the investigation.

When the accused appeared before the trial court and when he pleaded not guilty to the charge framed under Section 20(a)(i) of the NDPS Act, PWs1 to 8 were examined, Exts.P1 to P16 and MO1 were marked from the side of the prosecution. From the side of the defence, DW1 was examined. Ext.X1 was also marked. After hearing both sides and considering the oral and documentary evidence on record, the learned Special Judge, as per the impugned judgment dated 21-02-2008, convicted and sentenced the accused to undergo Rigorous imprisonment for two years and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo Rigorous imprisonment for six months for the offence under Section 20(a)(i) of the NDPS Act.

Heard Sri.P.Chandy Joseph, the learned counsel for the appellant and Sri.Vipin Narayan, the learned Public Prosecutor for the State and perused the records.

The point that arises for consideration in this appeal is whether the conviction and sentence imposed on the appellant/accused is legally sustainable.

Learned counsel for the appellant argued that the prosecution has not adduced any legally admissible evidence to prove that the accused was in possession of the property where the ganja plants are seen. It is pointed out that the alleged occurrence was on 08-10-1997 and that the evidence of PW7 Excise Circle Inspector would show that he took charge of the investigation of this case only on 20-07-2005 and PW7 also admitted that there is nothing in the file to show that any other Officer has conducted the investigation of this case prior to 20-07-2005. It is pointed out that all the independent witnesses turned hostile and none of the prosecution witness has a case that he saw the accused in the property where the ganja plants were detected by PW1 on 08-10-1997. It is pointed out that the trial court rendered a finding against the accused merely based on the evidence of PW5 Village Officer, who issued Ext.P12 possession certificate, after inspecting the property on 22-05-2006.

The evidence of PW1 clearly shows that the accused was not present there when he prepared Ext.P5 mahazar. PW2 Preventive Officer, who accompanied PW1 for the raid admitted in cross-examination that the accused and his property are not previously known to him and that he is not in a position to say the boundary of the property of the accused. The evidence of PW2 also shows that the accused was not there at the time of raid. PW's 3 and 4, the independent witnesses examined from the side of the prosecution turned hostile to the prosecution and deposed that they have not witnessed the Excise Officials searching the house and property of the accused.

PW5 Village Officer deposed that as per the direction of the Investigating Officer, he issued Ext.P12 possession certificate and prepared Ext.P13 plan after visiting the property. According to PW5, he requested the persons residing in the neighbourhood to point out the boundaries of their property and thereafter prepared Ext.P12 and Ext.P13. In cross-examination, PW5 admitted that there is no document in the Village Office regarding this property and Patta is not issued to any person and no person is paying prohibitory tax to this property. According to PW5, he inspected the property on 22-05-2006 and he cannot say who was in possession of the property as on 08-10-1997 and he has not conducted any enquiry in this regard. I find merit in the argument of the learned counsel for the appellant that there is no evidence to show that the accused was in possession of the land where ganja cultivation was found on 08-10-1997. Admittedly, PW5 Village Officer visited the property only on 22-05-2006 and he categorically admitted that he cannot say who was in possession of the property as on 08-10-1997.

It is well settled that suspicion, however strong cannot take the place of proof. The accused is presumed to be innocent unless proven guilty beyond reasonable doubt. It is true that the offences under the NDPS Act are of serious nature and people indulging in peddling, possession or dealing in any manner with Narcotic drugs are causing havoc to the social fabric of the society and health of the young and impressionable youth, but the presumption of innocence until proven guilty is one of the fundamental principles of Criminal Jurisprudence. Section 35 of the NDPS Act, deals with the presumption of the culpable mental state of the accused requiring the court to presume the mental state for a prosecution under the Act. Explanation to Section 35 of the NDPS Act provides that “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. Sub Section (2) of Section 35 provides that a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. In Naresh Kumar @ Nitu v. State of Himachal Pradesh ((2017) 15 SCC 684), it was held by the Hon'ble Supreme Court that the presumption under Sections 35 and 54 of the NDPS Act is rebuttable and such a presumption does not dispense with the obligation on the prosecution to prove the charge beyond all reasonable doubt and that the presumptive provision with reverse burden of proof does not sanction conviction on the basis of preponderance of probability.

As noticed earlier, there is no evidence, in this case, to show that the accused was in possession of the property at the time of occurrence and no evidence is adduced from the side of the prosecution to prove that it was the accused, who cultivated the ganja in that property and therefore, I find that the prosecution has failed in proving the offence under Section 20(a)(i) of the NDPS Act against the accused/appellant and therefore the impugned judgment is liable to the set aside and the appeal is to be allowed.

In the result, the appeal is allowed and the conviction and sentence passed against the appellant/accused in S.C No.3 of 2007 on the file of the Special Judge for NDPS Act Cases, Thodupuzha is set aside and he is acquitted of the offence under Section 20(a)(i) of the NDPS Act. The bail bond executed by the appellant/accused shall stand cancelled and he is set at liberty forthwith.