Kerala High Court

Avrachan @ Kuttiachan vs State Of Kerala on 6 August, 2025

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Crl. Appeal No. 796/2007
                                                          2025:KER:58637

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                  THE HONOURABLE MR. JUSTICE JOHNSON JOHN

        WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947

                            CRL.A NO. 796 OF 2007

       AGAINST THE JUDGMENT DATED 05.05.2007 IN SC NO.15 OF 2006 OF
SPECIAL COURT for NDPS ACT CASES, THODUPUZHA

APPELLANT/A1:

             AVIRACHAN @ KUTTIACHAN, S/O. MATHAI,
             KALLIYATHU HOUSE, MANJAKUZHY BHAGAM, NJERIPALAM KARA,
             RAJAKKAD.


             BY ADVS.
             SRI.JOHN K.GEORGE
             SRI.P.K.VARGHESE
             SRI.N.K.SHYJU




RESPONDENT/COMPLAINANT:

             THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.



       THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.08.2025, THE

COURT ON 06.08.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 796/2007
                                                            2025:KER:58637

                                                                  'C.R'

                             JOHNSON JOHN, J.
           ---------------------------------------------------------
                        Crl. Appeal No. 796 of 2007
            ---------------------------------------------------------
                    Dated this the 6th day of August, 2025

                              JUDGMENT

The appellant is the first accused in S.C. No. 15 of 2006 on the file

of the Special Court for NDPS Act Cases, Thodupuzha. As per the

impugned judgment, the trial court acquitted the second accused finding

her not guilty of the offence under Section 20(b)(ii)(B) of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and

the appellant/first accused was found guilty and he is convicted and

sentenced to undergo rigorous imprisonment for 5 years and to pay a

fine of Rs.25,000/- and in default of payment of fine, to undergo

rigorous imprisonment for 3 months under Section 20(b)(ii)(B) of the

NDPS Act and the same is under challenge in this appeal.

2. As per the prosecution case, the first accused is the husband of

the second accused and on 30.07.2005, at 6.35 a.m., the accused were

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found keeping 11 kgs. and 350 grams of dried ganja in their house

bearing No.X/539 (I/221) of Rajakumari Panchayath.

3. When the accused persons pleaded not guilty to the charge,

PWs 1 to 10 were examined and Exhibits P1 to P26 and MOs 1 to 11

series were marked from the side of the prosecution. From the side of

the defence, DW1 examined.

4. After hearing both sides and analysing the evidence, the trial

court recorded a finding that there is no reliable evidence to take a view

that the second accused had kept the contraband items in the house in

question and that it is explicit from the attending circumstances of the

case that the first accused is liable for keeping the contraband in the

house in question.

5. The learned counsel for the appellant argued that the finding of

the trial court that it was the appellant who kept the contraband in the

house in question is based on an inference drawn by the trial court

relying on the evidence of PWs 1 and 6 that when they reached near the

house in question, they saw the first accused running away from there.

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6. It is pointed out that PWs 2, 3 and 4, the independent

witnesses examined by the prosecution to prove the occurrence, turned

hostile and that PW1, Deputy Superintendent of Police who detected the

offence, did not identify the appellant/first accused in the dock. PW1

only stated that when he reached there, one accused ran away from

there and he can identify the said accused. PW1 also stated that it was

the first accused who ran away from there.

7. It is well settled that identification of an accused in court by the

witness is the substantive evidence and even if the witness and the

accused are persons known to each other, it is obligatory for the witness

to identify the accused in court by pointing out that the person referred

to by him in the evidence is the person who is standing in the dock and

it is obligatory for the court to record in the deposition that the witness

had identified the accused in the dock, as held by this Court in Vayalali

Girishan and Others v. State of Kerala [2016 KHC 204] and Shaji @

Babu @ Japan Shaji v. State of Kerala [2021 (5) KHC SN 27]. In this

case, the presiding Judge has omitted to do so, while recording the

deposition of PW1 and there was no attempt on the part of the

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prosecutor to put appropriate questions to PW1 for the said purpose. The

trial court has not recorded in the deposition of PW1 that the said

witness has identified the first accused, Avirachan @ Kuttiachan, in the

dock.

8. It is true that PW6, ASI who accompanied PW1, Deputy

Superintendent of Police, to the place of occurrence, deposed that when

they reached the front courtyard of the house of accused Avirachan, the

said Avirachan came out of the house and ran away on seeing the police

party. According to PW6, even though they chased the first accused,

they were not able to apprehend him. The trial court has specifically

recorded in the deposition of PW6 that the witness identified the first

accused in the dock.

9. The learned counsel for the appellant argued that the case set

up by the prosecution against the appellant is entirely based on

circumstantial evidence and none of the prosecution witnesses has a

case that they saw the accused/appellant storing or handling the

contraband item in the house at the time of occurrence. It is pointed out

that PWs 1 and 6 have no case that they took notice of the Panchayath

number of the house in question at the time of occurrence.

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10. It is pertinent to note that the Panchayath number of the

house is not stated in Exhibit P13, mahazar, or Exhibit P23, scene plan,

prepared by the Village Officer. Even though, it is stated in Exhibit P13,

mahazar, that the specimen signature and seal are separately taken to

custody in a sealed cover, the same is not seen produced as per Exhibit

P15, property list.

11. The prosecution is relying on the evidence of PW5 and

Exhibits P20, P21 and P22 to prove that the house in question belongs to

the appellant herein. As noticed earlier, PWs 1 and 6 have no case that

they took notice of any Panchayat house number for the house in

question at the time of occurrence.

12. In chief examination, PW5 deposed that he is now residing in

Tamil Nadu and that he has given his house at Rajakkad to the accused

persons. But, there was no attempt on the part of the prosecution to

identify the accused persons in the dock through PW5.

13. In re-examination of PW5, a photostat copy of an agreement

is marked as Exhibit P20. According to PW5, he produced a photostat

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copy of the agreement before the Circle Inspector, but has nothing to

say if the said fact is not mentioned in his statement to the police. The

evidence of PW10, Circle Inspector who conducted the investigation,

shows that PW5 has not given statement to him that he produced any

agreement. PW10 further admitted in cross examination that he has not

conducted any investigation to ascertain whether PW5 has sold the

house to the first accused.

14. A perusal of the list of documents in the final report filed by

PW10 would show that he has not produced Exhibit A20, photocopy of

the agreement, along with the final report. It is not forthcoming as to

how and when Exhibit P20, photocopy of the agreement, is produced

before the trial court. It is true that the prosecution can be allowed to

produce documents or material omitted to be produced along with the

final report if the omission was inadvertent and no prejudice is caused to

the accused; but in this case, no such application is moved by the

prosecution for receiving Exhibit P20 in evidence.

15. The Secretary of Rajakumari Grama Panchayat is examined as

PW7 and Exhibits P21 and P22 are the documents marked through PW7.

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PW7 has not deposed regarding the contents of Exhibits P21 and P22. A

perusal of Exhibit P21, ownership certificate, shows that one Jose Joseph

is the owner of building No.I/221 (X/539). Exhibit P22 is a letter issued

by PW7 to the Investigating Officer to the effect that house bearing

number 'I/221' was renumbered for the purpose of Panchayath election

during 2000 as 'XI/385' and subsequently during 2003-2004, the said

house is numbered as X/539 and the said house is in the ownership of

one Jose Joseph before and after the year 2002.

16. I find force in the argument of the learned counsel for the

appellant that the evidence of PW7 and Exhibits P21 and P22 will not

support the prosecution case that the house in question is in the

possession of the appellant/first accused. In the absence of reliable

evidence regarding the Panchayath number of the house from where the

contraband item is alleged to be recovered, it is not safe to arrive at a

conclusion from the vague evidence of PW5, Jose, and Exhibit, P20

photo copy of the agreement, that PW5 has handed over the possession

of the house to the accused persons prior to the alleged occurrence.

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17. Exhibit P22 is only a reply to the letter sent by the

Investigating Officer to PW7, Panchayath Secretary, and therefore, the

same is hit by Section 162 Cr.P.C. In Kali Ram v. State of H.P. [1973

KHC 634 = AIR 1973 SC 2773], a three Judges' Bench of the Honourable

Supreme Court observed as follows:

"18. ...The prohibition contained in the section relates to all statements made during the course of an investigation. Letter PEEE which was addressed by Sahi Ram to Station House Officer was in the nature of narration of what, according to Sahi Ram, he had been told by the accused. Such a letter, in our opinion, would constitute statement for the purpose of S.162 of the Code of Criminal Procedure. The prohibition relating to the use of a statement made to a police officer during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communication addressed by the person concerned to the police officer. If a statement made by a person to a police officer in the course of an investigation is inadmissible, except for the purposes mentioned in S.162 the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in S.162 by the investigating officer obtaining a written statement of a person instead of the investigating officer himself recording that statement."

18. The learned trial judge overlooked the fact that the

prosecution has not filed any petition for receiving Exhibit P20, photostat

copy of the agreement, and also wrongly admitted Exhibit, P22 reply

letter issued by PW7 to the Investigating Officer, and in that

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circumstance, it is not safe to record a finding based on the vague

evidence of PW5 and Exhibit P20 that the appellant/first accused was

residing in the house in question at the time of occurrence.

19. The learned counsel for the appellant argued that the

prosecution has failed to prove the conscious possession of the

contraband article by the appellant/first accused. In Om Prakash @

Baba v. State of Rajasthan [2009 KHC 5198], the Honourable

Supreme Court held thus:

"7. A bare perusal of the evidence aforementioned would reveal that the ownership and possession of the house and the place of recovery is uncertain. As a matter of fact PW.3 has categorically stated that the house from where the recovery had been made belonged to one Durga Bhanji and not to the appellant. Even assuming for a moment that the house did belong to the appellant and was in his possession, the prosecution was further required to show the appellant had exclusive possession of the contraband as a very large number of persons including the appellant and five of his brothers, their children and their parents were living therein."

20. In this case, even as per the prosecution case, only the

second accused was arrested from the house at the time of occurrence.

The only witness who properly identified the appellant/first accused in

the dock is PW6, ASI and his evidence only shows that he saw the

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appellant/first accused running away from the courtyard of the house in

question. There is no satisfactory evidence regarding the number of

persons residing in the house in question at the relevant time and there

is also no evidence to show that the appellant/first accused was in

exclusive possession of the house in question at the time of occurrence.

The prosecution has not succeeded in establishing that the

appellant/first accused was the owner in possession of the house in