Full Judgment
M.R. Hariharan Nair, J.
1. In this jail appeal, the challenge is with regard to the conviction entered againstthe appellant as accused in SC No. 64/1999 of the Sessions Court, (Special Court forthe trial of the N.D.P.S. Act cases), Thrissur for the offence under Section 20(b)(i) of theN.D.P.S. Act and the sentence of rigorous imprisonment for 4 years and fine ofRs. 10,000/- (in default, rigorous imprisonment for six months) imposed therefor.
2. The prosecution case that based on Ext. P4 information passed on by the Dy.Superintendent of Police, Kunnamkulam to PW2-Circle Inspector of Police atabout 9 a.m. on 29.10.1997 he proceeded to the place mentioned in Ext. P1 search listand seized ganja weighing about 1280 grams in a plastic bag concealed kept inside therolled up mats found inside the shed occupied by the accused at about 10.30 a.m. on29.10.1997 found acceptance with the trial court.
3. Smt. C.N. Usha, who appeared for the appellant on State Brief, submitted thatthere is violation of Section 42(2) of the N.D.P.S. Act justifying acquittal of the accused.She also pointed out that there is no acceptable evidence to conclude that the accusedwas still in possession of the contraband in so far as the building wherefrom thecontraband was seized was neither owned nor possessed by the accused. The failureof the prosecution to cite the relevant records including lease deed or other documentsevidencing absolute possession of the premises by the accused was also highlighted.
4. On the arguments advanced in this case, the points that arise for decision are:-
(1) Whether there is violation of Section 42(2) of the N.D.P.S. Act justifying acquittal of theaccused?
(2) Whether the building from which the contraband was seized is one possessedexclusively by the accused justifying an inference that the accused was in possessionthereof?
(3) Reliefs:-
5. Point No. 1:- PW2, who effected the search and seizure, admittedly, has notcomplied with Section 42(2) of the N.D.P.S. Act. However, the prosecution has a casethat there is no need for compliance with Section 42(2) in so far as the official superior towhom the report is actually due had himself passed on the information to PW2 CircleInspector of Police and directed him to effect the search and seizure.
6. Section 42(2) of the N.D.P.S. Act would apply to a case where an information isreceived by an empowered officer, which would indicate that an offence punishableunder the Act has been committed or any document or other article which may furnishevidence of the commission of such offence or any illegally acquired property or anydocument or other article which may furnish evidence of holding any illegally acquiredproperty which is liable for seizure or forfeiture under Chapter V-A of the Act is keptor concealed in any building, conveyance or enclosed place.
7. The purpose behind Section 42 of the N.D.P.S. Act is to avoid chances of falsecases being set up and to ensure that the superior officers are kept informed of thebooking of cases under the Act. It gives an assurance to the accused to ensure thata false case is not set up against him in so far as based on the report, it is possible forthe official superior to look into such cases and ensure that only genuine cases reachthe court. As far as the present case is concerned, the reason why PW2 proceededto the scene of occurrence itself, is a direction from his official superior. In fact, PW2was the Circle Inspector of Kunnamkulam and the place of occurrence falls withinthe jurisdiction of the Chavakkad Police Station. It is clear from the evidence of PW2that on the particular day, the Circle Inspectors of Chavakkad and Guruvayoor werenot available for duty and that was why a direction was issued to PW2 of a neighbouringcircle to proceed to the spot and to effect seizure. The oral direction of the DeputySuperintendent of Police as above was followed by Ext. P4 official memorandumissued to PW2 by the said Deputy Superintendent of Police which reads as follows:
'You, Sir V.V. Shashi Kumar, CI of Police, Kunnamkulam is hereby directed to proceed toChavakkad Police Station and detect case under NDPS Act since there is reliable information ofone Ravi @ Pallan Ravi stocking sizable quantity of ganja. Treat this as most urgent. Reportsignal after search. This is in continuation of my telephonic conversation dated 29.10.1997. Youmay register a case and investigate'.
8. Thus, here is a case where the direction is contained in written order issued bythe Deputy Superintendent of Police himself. In such a case I do not think that thereis need for PW2 to record once again the contents of Ext. P4 or even the telephonicinformation received earlier and send a report to the same Deputy Superintendent ofPolice, who is his official superior. Such a procedure would be superfluous andmeaningless.
9. The question arises whether the Deputy Superintendent of Police, being anempowered officer under Section 42(1), was himself bound to reduce to writing theinformation received by him and send it to his official superior viz., Superintendent ofPolice. I had occasion to consider this aspect in Somasekharan v. State of Kerala(Crl. Appeal 671 of 2000) decided on 14.3.2001. That was a case where the informationand direction were given to the seizing official by the Superintendent of Police, whohad received the information regarding the possession of contraband. I foundthat Sections 42 (1) and (2) read together would make it clear that the responsibility forrecording the information and for conveying it to the official superior is only for theofficer who wants to enter into and search any building, conveyance or enclosedplace and that there was no need for the Superintendent of Police to record theinformation and send it to his official superior.
10. As far as the present case is concerned, since the Deputy Superintendent ofPolice did not propose to enter into and search the building where contraband wassuspected to be available himself, it was not incumbent upon him to reduce theinformation to writing under Sections 42(1) and 42(2). In the circumstances, I agree withthe trial court that there was no violation of Section 42(2) of the NDPS Act justifyingacquittal of the accused on that ground.
11. Point No. 2:- This is not a case where the contraband was found in thephysical possession of the accused. What is clear from the evidence of PW2 and thecontents of Ext. P1 search list was also from the evidence of PW1, who is the attestingwitness to Ext. P1, is that the bag of ganja was found on the south western room of athatched building. The accused was not the sole occupant of the house at the time ofseizure; another woman was also there. The accused is a person hailing from Sivakasiin Tamil Nadu and there is no case that the building (shed) belongs to him. Duringexamination before the Court, the version of PW2 was that the building was possessedby him on lease. If that is so, PW2 or atleast PW4 who investigated the case furtherwas bound to produce before Court the lease deed in question and in case there wasno lease deed, atleast to prove the aspect of lease through convincing evidence includingthat of the landlord. In the instant case, no such evidence is forthcoming. The landlord,it appears, was not even questioned by the Circle Inspector of Police. Of course, thedetails recorded in the search list would show that the structure concerned was beingused as a residential house; but that by itself would not show that it was in the absolutepossession of the accused. True, he was a person found in the building at the time ofsearch; but then, from this, it is not possible to conclude that it was actually possessedby him in so far as one more person was in the house. It is mentioned in Ext. P2 FIRthat the Deputy Superintendent of Police had told PW2 over phone that according tohis information the accused herein had transported a plastic bag containing ganjathrough autorikshaw bearing registration No. KL-8A/7793 and that it was kept in hishouse. If that were so, atleast the autorikshaw driver, who brought the accused andthe contraband to the building in question in his vehicle should have been examined.No attempt was made to examine the said autorikshaw driver or for that matter, anyother person including neighbours to show that ganja was actually brought to thebuilding in question in the said autorikshaw or in any other vehicle by the appellant. Inthe circumstances, I am not satisfied that the prosecution has succeeded in connectingthe contraband seized in the case to the accused.
12. The learned Public Prosecutor submitted that the evidence of PW1 is sufficientto prove the nexus between the accused and the contraband in question. I haveperused his evidence. All that he stated was that he found a crowd near the houseoccupied by the accused as tenant, and also saw the Circle Inspector and his policeparty coming out of the said house with ganja contained in a polythene cover. Incross-examination, he stated that he was residing near the building in question and thathe had no close contact with the accused. He had never gone to the building inquestion prior to the occurrence. Though he stated that the accused was occupyingthe building as a tenant, he had to admit that he had not seen any record evidencingthat fact.
13. In the circumstances, I do not think that the evidence of PW1 is sufficient toenable an inference that the building in which the contraband was found was in theexclusive possession of the accused. It follows that there is no legal evidence to findthat the accused was in possession of the ganja in question.
14. Point No. 3:- In view of my finding under point No. 2, the accused is entitledto be acquitted. The conviction entered against the appellant is hence set aside andthe accused is acquitted. He will be set at liberty forthwith unless his continueddetention is needed in connection with any other case. Fine, if any, paid by him, will berefunded.