In a significant judgment, the Kerala High Court acquitted Avirachan @ Kuttiachan, the first accused in a case under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The court highlighted critical lapses in the prosecution's evidence, particularly regarding the accused's possession of the contraband and proper identification. The appeal (Crl. Appeal No. 796/2007) was heard by Justice Johnson John, who set aside the trial court's conviction and sentence.
Background of the Case
The case originated from an incident on July 30, 2005, when the police allegedly recovered 11 kg and 350 grams of dried ganja from a house in Rajakumari Panchayath. The prosecution claimed that the contraband belonged to Avirachan @ Kuttiachan and his wife (the second accused). While the trial court acquitted the second accused due to lack of evidence, it convicted the appellant under Section 20(b)(ii)(B) of the NDPS Act, sentencing him to five years of rigorous imprisonment and a fine of Rs. 25,000.
Key Issues Raised in the Appeal
The appellant challenged the conviction on multiple grounds, including:
- Improper Identification: PW1, the Deputy Superintendent of Police, failed to identify the accused in court, a procedural lapse violating established legal precedents like Vayalali Girishan v. State of Kerala and Shaji @ Babu v. State of Kerala.
- Lack of Evidence on Possession: The prosecution could not prove the appellant's exclusive possession of the house where the contraband was found. Documents like Exhibit P20 (a photocopy of an agreement) and Exhibit P22 (a letter from the Panchayath Secretary) were deemed inadmissible or unreliable.
- Hostile Witnesses: Independent witnesses (PWs 2, 3, and 4) turned hostile, undermining the prosecution's case.
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Court's Analysis and Judgment
Justice Johnson John meticulously examined the evidence and identified glaring gaps:
- Identification Flaws: The court emphasized that identification in court is substantive evidence. PW1's failure to identify the accused in the dock rendered his testimony unreliable. Only PW6, an ASI, identified the appellant, but his evidence was limited to seeing the accused flee, not handling the contraband.
"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..."
- Kali Ram v. State of H.P. (1973)
- Possession Not Proven: The prosecution failed to establish the appellant's ownership or exclusive possession of the house. Exhibit P21 (ownership certificate) showed the house belonged to Jose Joseph, not the appellant. The court noted that the prosecution did not investigate the house's ownership or produce legally admissible documents to link the accused to the property.
- Inadmissible Evidence: Exhibit P22, a letter from the Panchayath Secretary, was deemed inadmissible under Section 162 of the Cr.P.C., as it was a response to the investigating officer's query during the investigation.
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Legal Precedents Cited
The judgment referenced key rulings:
- Om Prakash @ Baba v. State of Rajasthan (2009): The Supreme Court held that mere possession of a house does not prove exclusive possession of contraband, especially when multiple occupants reside there.
- Kali Ram v. State of H.P. (1973): Statements made during investigations, including letters, are inadmissible if they circumvent Section 162 Cr.P.C.
Case Title: Avirachan @ Kuttiachan v. State of Kerala
Case No.: Crl. Appeal No. 796 of 2007 (2025:KER:58637)