RASHEED vs THE SUB INSPECTOR OF POLICE
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
ST
TUESDAY, THE 1 DAY OF SEPTEMBER 2026 / 10TH BHADRA, 1948
CRL.A NO. 345 OF 2014
AGAINST THE JUDGMENT DATED 25.03.2014 IN SC NO.14 OF 2011 OF
SPECIAL COURT (NDPS ACT CASES), VATAKARA
APPELLANT/ACCUSED:
RASHEED
S/O.IBRAHIM, CHALIL HOUSE, ANDATHODE, PUNNAYURKULAM.
BY ADV.SHRI.SUNNY MATHEW
RESPONDENTS/COMPLAINANT AND STATE:
1 THE SUB INSPECTOR OF POLICE
PERUMPADAPPU POLICE STATION, MALAPPURAM DISTRICT - 676
505.
2 THE CIRCLE INSPECTOR OF POLICE
VALANCHERY - 676 505.
3 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 031.
BY PUBLIC PROSECUTOR SRI.M.A.SHIHAB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.08.2026, THE
COURT ON 01.09.2026 DELIVERED THE FOLLOWING:
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CR
JUDGMENT
st
Dated this the 01 day of September, 2026
Judgment in S.C.No.14/2011, dated 25.03.2014 on the files of
the Special Court under the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, 'the NDPS Act' hereinafter),
Vatakara, is under challenge in this appeal filed under Section
374(2) of the Code of Criminal Procedure, at the instance of the sole
accused.
2. Heard the learned counsel for the appellant/accused and the
learned Public Prosecutor, in detail. Perused the verdict impugned along
with the records of the Special Court.
3. The prosecution case is that, around 4 p.m. on 19.6.2010,
PW8, the Sub Inspector of Perumpadappu Police Station had seized
150 grams of dry ganja from the conscious possession of the accused
from the bye-lane on the eastern side of Jaz Jewellery
and on the western side of Pathanpallippara
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road in Perimpadappu. On the same day, based on disclosure
statement given by the accused, while he was in custody, 1900
grams of dry ganja was also recovered when it was taken and
produced by the accused before the Sub Inspector from the bed
room of the dwelling house occupied by the accused and his
family members bearing door No.P.P.18/296 at
Punnayurkulam. On this premise, the prosecution alleges
commission of offence punishable under Section 20(b)ii(B) of
the NDPS Act, by the accused.
4. In this matter, the Special Court framed charge for
the aforesaid offence and proceeded with trial. During trial,
PW1 to PW11 were examined, Exts.P1 to P19 and MO1 to MO6
were marked on the side of the prosecution. Exts.D1 and D2
were marked on the side of the defence. No oral evidence was
adduced by the defence.
5. On appraisal of the evidence, the learned Special Judge
found that the appellant/accused had committed offence
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punishable under Section 20(b)ii(B) of the NDPS Act.
Accordingly, he was convicted and sentenced as under:
“In the result, accused is sentenced to undergo
rigorous imprisonment for three (3) years and a fine
of Rs. 75,000/-(Rupees Seventy five thousand only)
and in default of payment of fine to undergo rigorous
imprisonment for one more year under section
20(b)ii(B) of NDPS Act. The period in remand will be
set off u/s. 428 of Cr.P.C. The contraband shall be
dealt with as per circular No.1/2001 of Hon'ble High
Court of Kerala.”
6. While assailing the verdict impugned, the learned
counsel for the appellant/accused raised a vital point to
unsustain the verdict. According to him, here, the contraband
to the tune of 1900 grams of ganja was alleged to be possessed
by the appellant/accused in a house owned by his mother,
where according to the prosecution case, the accused, his
mother and other family members had been living. In such
situation, the conscious possession of the contraband at the
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helm of the appellant/accused could not be found individually
against him, so that the possession of 1900 grams of ganja
alleged by the prosecution is in the midst of doubts and in such
view of the matter, the verdict would require interference.
7. In order to buttress his contention, the learned
counsel for the appellant/accused has placed the decision of the
Hon'ble Apex Court in Crl.A.No.1284/2003 in State of
Rajasthan v. Dulichand where the Hon'ble Apex Court
considered a judgment of acquittal recorded by the High Court
after setting aside the sentence imposed against the appellant
therein finding commission of offence punishable under Section
18 of the NDPS Act and in paragraph Nos.1, 2, 3 and 4
(paragraph Nos. not specifically found in the judgment produced)
where the Hon'ble Apex Court held as under:
“We see from the judgment of the High Court that
the observations are fully justified in so far as the
evidence is concerned. It is the conceded position that
the house from where the narcotic
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substance had been recovered belongs to Bharmal,
the father of the respondent, and that the house
consisted of four rooms and the narcotic substance
had been recovered from the fourth room which
was said to be in possession of the respondent. We,
however, see from the judgment that the opium
had been recovered at point 'K' which was at a
distance of 40 feet from Dulichand's room and the
finding on this aspect is that the part of the house
around point 'K' was being used by all the family
members as a way of coming and going and was
not accessible only to the respondent. We have also
gone through the evidence of P.W.3-Raghunath
Pandey, P.W.7
- Prabhu Dayal, the last named, an official witness
from the Department and a member of the
checking party, who went so far as to state that he
was not aware as to the place from where the narcotic
substance had been recovered and did not even know
that the room belonged to the respondent, and
finally, P.W.4 - Bhuwana, one of the recovery
witnesses who along with P.W.6 - Bharmal, the father
of the respondent were declared hostile
as they did not support the
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prosecution. We see from a reading of their
statements that there is nothing to suggest that the
respondent was in exclusive possession of the
room at point 'K' where the alleged recovery had
taken place.
We have also considered deeply the second reason
advanced by the High Court. This is based on the
premise that the seal under which the samples had
been sealed had been tampered with, which
destroyed the sanctity of the recovery. We have
gone through the evidence of P.W.9 - Bhikam
Chand Gupta to whom the samples had been
handed over for safe-keeping and observe that he
was not the in charge for the Malkhana as the
Malkhana was under the charge of the District
Opium Officer, who has not been produced as a
witness. We are of the opinion that the evidence of
P.W. 2 - Sankta Prasad Choudhary, P.W.8 -
Satyaveer Singh and P.W.9 - Bhikam Chand
Gupta to depose on the sanctity of the sample,
therefore, loses all significance.
We are also cognizant of the fact, that we are
dealing with an appeal against acquittal, at the
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instance of the State, and interference in such a
matter must be rare and far between.
We, thus, do not find any merit in this appeal
which is, accordingly, dismissed.”
8. It is also submitted by the learned counsel for the
appellant/accused that in the decision in Mohd.Alam Khan v.
Narcotics Control Bureau & Another reported in [1996 (9)
SCC 462] , where the Hon'ble Apex Court considered the
ingredients to apply Section 66 of the NDPS Act.
9. Whereas, the learned Public Prosecutor would submit
that in this case, initially, the accused was nabbed on finding
possession of 150 grams of dry ganja at 4 p.m. on 19.6.2010 and
when he was questioned in custody, he had disclosed that he had
kept ganja at his residential house disclosing its authorship of
concealment and accordingly, the Investigating Officer followed him
and the accused took 1900 grams of ganja
from his bedroom of the dwelling house occupied by the accused
and his family members, bearing door
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No.P.P.18/296 at Punnayurkulam. Therefore, the conscious
possession of the same in case of contraband recovered under
Section 27 of the Indian Evidence Act, 1872 (for short, ‘the
Evidence Act’ hereinafter), cannot be disputed for any reason
and the facts of the case dealt by the Hon’ble Apex Court in the
decision in Dulichand ’s case (supra) and the ratio therein have
no application in the present case. Therefore, the prosecution
successfully established the ingredients to find the commission
of offence punishable under Section 20(b)ii(B) of the NDPS Act.
10. Adverting to the rival contentions, the points arise
for consideration are;
(i) Whether the Special Court is right in holding
that the appellant/accused committed
offence punishable under
Section 20(b)ii(B) of NDPS Act?
(ii) Whether the verdict would require
interference?
(iii) The order to be passed?
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Point Nos.(i) to (iii)
11. The learned Special Judge mainly relied on the
evidence of the Detecting Officer, who was examined as PW8
and PW1, the accompanying officer. PW7 was examined as an
independent witness to corroborate the evidence of PW8 and
PW1, in addition to the evidence of PWs 2 to 4. Apart from that,
PW5, an independent witness residing close to the house of the
accused even though turned hostile to the prosecution, he had
admitted his signature in Ext.P3, the search and recovery mahazar.
12. The crucial evidence in this case is that of the Detecting
Officer, who was examined as PW8. He deposed regarding the
detection and seizure of ganja from the accused on 19.06.2010. He
testified that on 19.06.2010, he was working as the S.I. of
Perumbadappu Police Station. On that day, at 15.30 hours, a person
had informed him over the official mobile phone that a young man
wearing a dhoti and a green-coloured
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shirt was standing with a plastic cover for selling ganja in a bye - lane
situated on the eastern side of Jas Jewellery and on the northern
side of Puthanpallipara Road. The information had been recorded in
the General Diary and its extract had been sent to the C.I. of
Valanchery, who was in charge of his superior officer on that day.
The extract of the information was marked as Ext.P6. Thereafter,
this witness and the police party had reached the aforesaid place at
16.00 hours and identified the accused as the person mentioned in
the information. His name and address were ascertained. PW8
informed the accused that they had reached the place on receiving
information that he was in possession of ganja and that his person as
well as the plastic cover in his possession had to be searched. He
further informed the accused that he had a legal right to be searched
in the presence of a Magistrate or a Gazetted Officer. The accused
stated that he did not require the presence of a Magistrate or a
Gazetted Officer and that PW8 himself could conduct the search
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and the accused gave Ext.P7 written declaration to that effect in
his own handwriting. Thereafter, in the presence of two
independent witnesses, after informing them of the
circumstances, PW8 and the said witnesses conducted search of
their persons and satisfied themselves that no contraband had
been concealed on them. PW8 then searched the person of the
accused, but no contraband was found on his person. On
examining the plastic cover held in the right hand of the
accused, a paper packet was found inside it and, on opening the
same, it was found to contain ganja. The accused was arrested
for possessing ganja. The arrest and inspection memo prepared
in that regard was marked as Ext.P8. Thereafter, PW8, along
with the accused and the witnesses, proceeded to Aiswarya Jewellery
nearby and, with the assistance of a goldsmith, weighed the ganja
using an electronic balance. The ganja alone weighed 150 grams. 20
grams from the same were taken as sample for chemical analysis
and packed in a polythene cover,
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to which a signature slip bearing the signatures of the accused,
PW8 and the independent witnesses were affixed. The
polythene cover was thereafter packed in white paper, and
another signature slip bearing the said signatures was affixed.
The packet was tied, sealed with the SHO's seal and marked as
S1. The remaining 130 grams of ganja was packed in another
polythene cover following the same procedure adopted for
taking the sample, and the packet was packed and sealed and
marked as P1. The cover in which the ganja had been kept and
the newspaper in which it had been packed by the accused were
separately taken into custody. Those articles were not sealed.
The seizure mahazar prepared in respect of the same was
marked as Ext.P5. Thereafter, they returned to the police station
along with the accused, material objects and documents, and
registered Crime No.164/2010 under Section 20(b)(ii)(A) of the
NDPS Act. The FIR was marked as Ext.P9. Thereafter, on
questioning, the accused while in custody, he had given
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disclosure statement that more ganja had been kept at his house
and that, if he would be taken there, he would show the same.
Accordingly, led by the accused, they proceeded to House
No.18/296 at Punnayur Kulam in Andathur. Then at 18.30
hours, the accused took out from the eastern room of his house
a paper packet and a polythene-covered packet. On opening
both the packets and examining their contents, the same found
to be ganja. In the presence of the goldsmith, the ganja was
weighed using an electronic balance. The ganja contained in the
newspaper packet weighed 905 grams, whereas the ganja
contained in the polythene-covered packet weighed 995 grams.
100 grams were taken as a sample from the same for chemical
analysis and packed in a polythene cover, to which a signature
slip bearing the signatures of PW8, the accused and the
independent witnesses was affixed. The packet was thereafter
packed in white paper, and a signature slip bearing the said
signatures was affixed. It was tied with twine, sealed and
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marked as S2. The remaining 805 grams of ganja was also
packed and sealed following the same procedure and marked as
P2. From the ganja contained in the polythene-covered packet,
50 grams was taken as a sample for chemical analysis, packed
following the same procedure and marked as S3. The remaining
945 grams of ganja was also packed and sealed following the
prescribed procedure and marked as P3. The plastic cover and
the newspaper in which the ganja had been kept were also
packed and sealed and marked as B1. A contemporaneous
seizure mahazar was prepared in respect of all these articles and
was marked as Ext.P3. The relevant portion of the confession
statement of the accused, which had ultimately led to the
detection of 1900 grams of ganja was marked as Ext.P10. The seized
materials were brought to the police station and kept in the safe
custody of PW8 on that day and were thereafter produced before the
court along with two property lists. The property list relating to the
articles seized as per Ext.P5 was
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marked as Ext.P11, and the property list relating to the material
objects seized as per Ext.P3 was marked as Ext.P12. He also
deposed about the production of the contraband before the
court on the very next day. The detection of the case had been
reported to the C.I., and the report under Section 57 of the
NDPS Act was marked as Ext.P13. The remaining ganja, after
taking the sample in respect of the seizure covered by Ext.P5,
was identified by this witness and marked as MO1. The
remaining ganja from the plastic cover seized as per Ext.P5
mahazar was marked as MO2. The remaining ganja seized as
per Ext.P3, after taking the sample, was marked as MO3. The
995 grams of ganja taken from the polythene-covered packet,
which had been seized as per Ext.P3, was marked as MO4. The
plastic cover in which the accused had kept the ganja in his house
was marked as MO5. The Siraj newspaper in which the ganja had
been packed and which had been seized as per Ext.P5 was marked
as MO6. Thereafter, the investigation of the case
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was taken over by the C.I.
13. PW1, the accompanying police officer and A.S.I. of
Perumbadappu Police Station, deposed that on 19.06.2010,
while he was working at the station, the S.I. had called him and
stated that one person was selling ganja in the lane near Jas
Jewellery, on the northern side of the road at Perumbadappu
Para. Along with other police officers, they had left the station at
15.30 hours and reached the said place at 16.00 hours, where
they identified the accused. This witness corroborated the
evidence of PW8 with regard to the detection and also with
regard to informing the accused of his legal right under Section
50 of the NDPS Act. PW8 had asked the accused whether he
opted to exercise his legal right to be searched in the presence of
a Magistrate or a Gazetted Officer. The accused had not opted
for the same and had given a consent letter to PW8, the S.I.,
permitting him to conduct the search. Thereafter, PW8 had
detected 150 grams of ganja from the possession of the accused,
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from which 20 grams had been taken as a sample, packed and
sealed, as stated by PW8. The sample had been packed in a
polythene cover and white paper, and the SHO's seal had been
affixed along with signature slips. The sample was marked as S1
and the packet containing the remaining ganja was marked as
P1. This witness also stated that the accused had been arrested
at 16.45 hours in front of Jas Jewellery. Thereafter, they had
proceeded to the police station along with the accused and
reached there at 18.00 hours. The S.I. had registered a case
against the accused, and a seizure mahazar had also been
prepared at the place of occurrence. When the accused was
questioned by PW8, he had disclosed that the remaining ganja,
which had been kept for sale, was at his house in Punnayur
Panchayat. Accordingly, they had proceeded to Punnayur, led by the
accused. At 18.30 hours, they had reached the house of the accused.
The accused had pointed out the eastern bedroom and, from
beneath the cot, had taken out a plastic cover
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containing a blue plastic cover, which was packed in a red plastic
cover. On examination in the presence of two witnesses, the contents
were found to be ganja. The ganja had thereafter been weighed. This
witness had fully corroborated the evidence of PW8 regarding the
detection of ganja from the house.
14. PW2, the Village Officer of Perumbadappu, proved
Ext.P1 sketch plan showing the place of occurrence in the bye-lane.
PW3, the Village Officer of Punnayurkulam, proved Ext.P2 sketch
plan showing the house of the accused, where from 1900 grams of
ganja was seized.
15. PW7, the independent witness, corroborated the
evidence of PW8 and PW1 with regard to the seizure. He deposed
that at about 4.00 p.m. on 19.06.2010, in front of the road near Jas
Jewellery at Perumbadappu Para, the accused was found holding a
cover in his hand. When PW8 examined the cover, it was found to
contain ganja. The ganja was thereafter divided into two packets and
seized by the police, and a seizure mahazar was prepared in respect
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of the same. This witness had
also affixed his signature to the seizure mahazar. He identified
his signature therein, which was marked as Ext.P5.
16. PW4 identified the signature appearing in the seizure
mahazar, which was marked as Ext.P13, while stating that he
had signed the mahazar in front of his house. He further stated
that the Investigating Officer had not questioned him. PW4
turned hostile to the prosecution except for admitting his
signature in Ext.P13. Therefore, he was cross-examined by the
learned Public Prosecutor to impeach his credibility.
17. In this case, the evidence of PW8 would show that
initially, 150 grams of dry ganja was seized from the conscious
possession of the appellant/accused, for which, Ext.P9 FIR in
Crime No.164/2010 alleging commission of offence punishable
under Section 20(b)(ii)(A) of the NDPS Act was registered and
after arresting and questioning the accused in custody, he
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disclosed about authorship of concealment of ganja from his
dwelling house and as led by the accused, they reached to his
residential house bearing No.P.P.18/296 at Punnayur Kulam in
Andathur and at about 18.30 hrs., the accused had taken one
paper packet and a polythene cover packet from the eastern bed
room of his house and produced before the Investigating
Officer, upon opening both these packets on smelling, the
officer found the same was ganja. Accordingly, in the presence
of the goldsmith, a electric balance was brought and the ganja
was laid, when it was found that the ganja therein wrapped in a
newspaper packet was 905 grams of ganja and in the polythene
cover was 995 grams.
18. The main challenge raised by the learned counsel for
the appellant/accused to unsustain the verdict impugned is by
pointing out the fact that when 1900 grams of dry ganja was
alleged to be seized from the residential house where the
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accused along with his mother and other family members had
been living, its conscious possession could not be attributed
against the appellant/accused in exclusion of the other residents
in the family. According to him, in the said circumstances,
conscious possession of 1900 grams of dry ganja by the
appellant/accused, as alleged by the prosecution, is in the midst
of doubt and therefore, the appellant/accused is entitled to get
benefit of doubt.
19. Even though this argument appears to be impressive
at first blush, on examining the evidence of PW8 regarding the
mode of recovery of 1,900 grams of ganja, the said argument
becomes feeble and unsustainable. That is to say, PW8
categorically deposed that, after the arrest of the accused, when
he was found in possession of 150 grams of dry ganja while in
police custody, he made a disclosure statement that more ganja
had been kept at his house and that he would show the same if
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he would be taken to the place of occurrence. On the basis of
the said disclosure statement, PW8 followed the accused and
proceeded to his residential house at 18.30 hours. The accused
took out one paper packet and one polythene-covered packet
from the eastern bedroom of his house, which contained 1,900
grams of ganja. Thus, the recovery in this case was effected by
the accused in terms of Section 27 of the Evidence Act, after
disclosing the fact of concealment of the contraband and
voluntarily taking out the same from his own room, where he
had concealed it. In such a case, conscious possession of 1,900
grams of ganja could not be attributed to any others residing in
the same house other than the accused. Being so, the contention
raised by the learned counsel for the appellant/accused that
conscious possession of 1900 grams of ganja by the
appellant/accused could not be established would necessarily
fail. Thus, in the facts of the case, the ratio in the decision in
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State of Rajasthan v. Dulichand reported in [ (2009) 12
SCC 84] placed by the learned counsel for the
appellant/accused also could not be applied.
20. In fact, no doubts could be found from the
prosecution evidence, as argued by the learned counsel for the
appellant/accused to unsustain the same. Being so, this Court
has no hesitation in holding that the learned Special Judge
rightly appreciated the evidence and arrived at the conclusion
that the appellant/accused committed the offence punishable
under Section 20(b)(ii)(B) of the NDPS Act. Therefore, the
conviction is liable to be confirmed.
21. Coming to the sentence, in response to the argument
tendered by the learned counsel for the appellant/accused to
reduce the sentence, I am inclined to reduce the sentence for a
period of two years while maintaining the fine, as such, and by
reducing the default sentence for a period of six months.
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In the result, this appeal is allowed in part. The conviction
imposed by the learned Special Judge is confirmed. The
sentence is modified as under:
The appellant/accused is sentenced to undergo rigorous
imprisonment for a period of two years and to pay a fine of
Rs.75,000/- (Rupees Seventy Five Thousand only) and in
default of payment of fine, to undergo rigorous imprisonment
for a period of six months.
The order suspending sentence and granting bail to the
appellant/accused stands cancelled and the bail bond executed
by the appellant/accused also stands cancelled. The
appellant/accused is directed to surrender before the Special
Court, forthwith to undergo the modified sentence, failing
which, the Special Court is directed to execute the sentence,
without fail.
Registry is directed to forward a copy of this judgment to
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the Special Court, forthwith, without fail, for information and
compliance.
Sd/-
A. BADHARUDEEN
JUDGE
Bb