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2000 DIGILAW 36 (KER)

Reena Vijayan v. Union of India

2000-01-20

S.MARIMUTHU

body2000
JUDGMENT S. Marimuthu, J. 1. All the appellants in the above appeals are accused 1 to 5 in SC 112 of 1996 on the file of the Principal Sessions Judge, Thiruvananthapuram. The accused were found guilty by the learned Sessions Judge under S.8(c) and 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and they were sentenced to undergo Rigorous Imprisonment for 10 years and also to pay a fine of Rs. 1 lakh each, in default in the payment of fine, to undergo Rigorous Imprisonment for 1 year. 2. The facts and the evidence let in by the prosecution to support the conviction rendered by the learned Sessions Judge are briefly as follows: P.W. 1, one Horace Raj, was a lessee of the Kovalam Tourist Home and Hilltop Restaurant located at Kovalam and his lessor was P.W. 5 Soman. On 14th February 1996, the Superintendent of Narcotic Control Bureau, Thiruvananthapuram got information that narcotic substances were to be disposed of in a Restaurant at Kovalam, namely Hilltop Restaurant. On receipt of the information, P.W. 15, one Murali, Investigating Officer, reduced the same into writing (Ext. P-20 report) and sent a copy of the same to Superintendent of Narcotic Control Bureau, Thiruvananthapuram (P.W. 13, S. Vijayan) and proceeded to the spot in the evening of 15th February 1996 with his party. He had also taken with him an independent witness, P.W. 4. lathe Restaurant, in the presence of PWs 1 and 5, the raiding party recovered 15 grams of Hashish from the 1st accused Ramdas Swaminathan @ Vijayan and 75 grams of Hashish from the 2nd accused and 15 grams of Hashish from the 4th accused which was handed over to him by the 3rd accused under Ext. P-1 mahazar. Samples were also taken from the contraband recovered from the above said accused persons. The accused persons were arrested. The information which P.W. 1,5 received from the said spot was conveyed to P.W. 9, Superintendent of Central Excise and Customs, Ernakulam by 11.40 p.m. on 15th February 1996. P.W. 9, on receiving the information, recorded the same in Ext. P-27 report and informed it to the Assistant Commissioner of Central Excise, P.W. 14. The accused persons were arrested. The information which P.W. 1,5 received from the said spot was conveyed to P.W. 9, Superintendent of Central Excise and Customs, Ernakulam by 11.40 p.m. on 15th February 1996. P.W. 9, on receiving the information, recorded the same in Ext. P-27 report and informed it to the Assistant Commissioner of Central Excise, P.W. 14. through telephone and conducted a raid in the house of accused 1 and 5 (husband and wife) in the early morning of 16th February 1996, in the presence of P.W. 2, one Issack, and P.W. 3, one Sree Vallabhan. During the course of the search, P.W. 9 recovered 740 grams of Hashish and 1,003 grams of white coloured substance and the sample taken from the Hashish was sent to P.W. 14, the superior officer. Fifth accused was also arrested. On considering the statements of the witnesses examined during the investigation and the materials collected by the Investigating Officers, the learned Sessions Judge framed charges, conducted trial and as pointed out above he finally concluded finding the accused guilty. 3. Mr. M. Ratna Singh, Mr. T. G. Rajendran and Mr. Anil Thomas, learned Counsel appearing for the 5th accused, Mr. Pirappancode V. S. Sudheer, learned Counsel appearing for the 1st and 2nd accused and Mr. M. Balagovindan, learned Counsel appearing for the 3rd accused in common contended that Ext. P-1 mahazar, dated 1.5th February 1996 said to have been prepared at Kovalam and Ext. T. G. Rajendran and Mr. Anil Thomas, learned Counsel appearing for the 5th accused, Mr. Pirappancode V. S. Sudheer, learned Counsel appearing for the 1st and 2nd accused and Mr. M. Balagovindan, learned Counsel appearing for the 3rd accused in common contended that Ext. P-1 mahazar, dated 1.5th February 1996 said to have been prepared at Kovalam and Ext. P-3 mahazar, dated 16th February 1996 said to have been prepared in the house of accused 1 and 5 have not been properly established and in fact they contain surmises and conjectures, that the samples were not properly packed, sealed and sent to the Chemical Examiner for his examination and report and the person who produced the samples in the court and the person who had taken the samples to the Chemical Examiner were not examined and in view of this, the reports of the Chemical Examiner, marked as P-19 and P-41 could not be acted upon, that the mandatory provisions laid down in S.42 and 50 of the Act were not complied with, that the alleged lease in favour of P.W. 1 in respect of the Restaurant is not established and therefore it is highly doubtful that P.W. 1 was present at the relevant time as alleged by the prosecution to witness the arrest, recovery, etc., in the Restaurant at Kovalam. In addition to the above common contentions raised, the learned Counsel appearing for the 4th accused would contend that the prosecution has not established that the 4th accused was in conscious possession of the contraband. Learned Counsel appearing for the third accused would contend in addition to the above submissions that the prosecution has not established that the third accused was in possession of the contraband and in fact the arrest memo of the third accused marked as Ext. P-22 and the arrest memo of the 4th accused marked as Ext. P-24 would disclose that both the 3rd and 4th accused were found in possession of the contraband. That indeed is against the case of the prosecution. Further, a reading of Ext. P-1 mahazar would go to show that it is written by somebody and not by P.W. 15. P-22 and the arrest memo of the 4th accused marked as Ext. P-24 would disclose that both the 3rd and 4th accused were found in possession of the contraband. That indeed is against the case of the prosecution. Further, a reading of Ext. P-1 mahazar would go to show that it is written by somebody and not by P.W. 15. Learned Counsel appearing for the 5th accused would further contend that an examination of the evidence let in by the prosecution and also the Judgment of the learned Sessions Judge would go to show that the 5th accused was not in possession of the contraband and on the other hand, they would go to show that the 5th accused was aware that the contraband was in her house. When that be so, it could not be said that the 5th accused was in conscious possession of the contraband as alleged by the prosecution. In fact the original charge against the 5th accused was that she had conspired with the other accused in possessing the contraband. But the Trial Court has convicted her for possession under S.8(c) and 20(b)(ii) of the Act. For recording conviction under the above sections for possession, practically there is no evidence. 4. On account of the above contentions raised by the learned counsel for the accused and also the submissions advanced by the learned Public Prosecutor, the only point that has to be decided is whether the guilt under S.8(c) and 20(b)(ii) of the Act against each appellant has been established by the prosecution. 5. It is the case of the prosecution that the Kovalam Hilltop Restaurant had been leased to P.W. 1 by P.W. 5. The contentions raised on behalf of accused 1 to 4 would be that the prosecution has not established that the above said Restaurant, which is the scene of occurrence, was taken on lease by P.W. 1 and he was in possession of the same as a lessee on the date of the occurrence. namely 15th February 1,996. Therefore, to establish that the said premises was taken on lease by P.W. 1, the prosecution would rely upon the oral testimony of P.W. 1 and P.W. 5 and also the oral testimony of P.W. 6, one Suchathanan, an official of the Panchayat. No doubt, P.W. 1 has not produced any licence or agreement to show that the lease was in his favour. No doubt, P.W. 1 has not produced any licence or agreement to show that the lease was in his favour. According to the oral testimony of P.W. 1 he took the premises on lease on 14th February 1996 as per the oral agreement between himself and P.W. 5. P.W. 5, though had turned hostile, has testified that the above building, wherein the Hilltop Restaurant business was carried on, belongs to him and he leased out the Restaurant and building to one Maniyan and it was his further version that he was informed by Maniyan, his lessee, that the Kovalam Tourist Home and the Hilltop Restaurant had been run by P.W. 1. Therefore, the evidence of P.W. 1 and a portion of the evidence of P.W. 5 would disclose that on the relevant date P.W. 1 was the lessee of the Kovalam Tourist Home. I do not find any reason to reject the evidence of P.W. 5 with regard to the lease in favour of P.W. 1 in respect of the building and the Restaurant therein (the scene of occurrence). It is the case of the prosecution that on 1.4th February 1996, P.W. 15, the Investigating Officer of Narcotic Control Bureau, Thiruvananthapuram, got the information that accused 1 to 4 would be dealings in narcotic drugs on the evening of 15th February 1996 and he on recording the information in Ext. P-20 report forwarded a copy of the same to his Superior Officer, P.W. 13. Then on the basis of the direction given by P.W. 13, he went to the scene of occurrence on the evening of 15th February 1995. In this context, the submission advanced by the learned counsel for the accused would be that S.42 of the Act was not complied with. It is also the contention of the learned counsel for the accused that regarding the search on the persons of accused 1 to 4, the provisions laid down in S.50 of the Act was not complied with. In support of the above contentions, the counsel would place reliance on the proposition of law laid down in Kishan Mohar Singh Dugal, etc. v. State of Goa, JT 1999 (8) SC 115, Sarjudas and another v. State of Gujarat, JT 1999 (8) SC 118 and Banobi and another v. State of Maharashtra and others, JT 1999 (8) SC 125. In support of the above contentions, the counsel would place reliance on the proposition of law laid down in Kishan Mohar Singh Dugal, etc. v. State of Goa, JT 1999 (8) SC 115, Sarjudas and another v. State of Gujarat, JT 1999 (8) SC 118 and Banobi and another v. State of Maharashtra and others, JT 1999 (8) SC 125. The Supreme Court in the above said decisions has held that non compliance of S.50 of the Act is sufficient to set aside the conviction. In yet another decision, reported in Pon Adithan v. Deputy Director, 1999 (6) SCC 1 , the Supreme Court has held that the oral evidence of the Intelligence Officer who conducted the search is sufficient for establishing the compliance of the requirements of S.50 and particularly when such oral testimony of the Intelligence Officer is corroborated by the confession statement of the accused recorded under S.67 of the Act. Therefore, as per this section, the confession statement of the accused recorded under S.67 of the Act can be taken as a piece of evidence for the purpose of corroboration. Here S.42(2) and 50(1) of the Act can be extracted. "42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) xx xx xx xx (2) Whether an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. 50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under S.42 is about to search any person under the provisions of S.41, S.42 or S.43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in S.42 or to the nearest Magistrate." The Supreme Court in State of Punjab v. Balbir Singh( AIR 1994 SC 1872 ) held thus: "On prior information, the empowered officer or authorised officer while acting under S.41(2) or 42 should comply with the provisions of S.50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires failure to take him to the Gazetted Officer or the Magistrate would amount to non compliance of S.50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. It is an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of S.50 are mandatory." The Supreme Court in State of Punjab v. Baldev Singh(1999 (3) KLT SN 3 Case No. 4) held thus: "There is, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in S.50. Similarly, if the concerned person requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer, or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad." The Rajasthan High Court in Bal Ram v. State of Rajasthan(1993 (2) Vol. VIII Crimes 1130) has held that when the provisions of S.42 of the Act is not followed in sending the report forthwith to the Superior Officer, it will be fatal to the prosecution. 6. On the above proposition of law in respect of S.42 and 50 of the Act, now I will look into the evidence adduced by the prosecution. VIII Crimes 1130) has held that when the provisions of S.42 of the Act is not followed in sending the report forthwith to the Superior Officer, it will be fatal to the prosecution. 6. On the above proposition of law in respect of S.42 and 50 of the Act, now I will look into the evidence adduced by the prosecution. It is the evidence of P. W. 15 that in the scene of occurrence disclosing their identity to accused 1 to 4 and knowing the names of the accused informed the accused the information received regarding the drug transaction and also about the search on the persons of the accused. His evidence further discloses that he informed accused 1 to 4 whether they wanted to be searched in the presence of a Gazetted Officer or a Magistrate, for which all the accused unwilled. That has been also specifically referred to in Ext. P-1 mahazar prepared in the spot. PWs 11 and 12, Intelligent Officers, who also participated in the search of accused 1 to 4 would corroborate the evidence of P. W. 15 in the matter of informing accused 1 to 4 about their exercise of right with regard to the search on their persons in the presence of a Magistrate or a Gazetted Officer. The independent witness, P. W. 1, also in this regard would corroborate the oral testimony projected by PWs 11, 12 and 13. All these witnesses would cogently depose that accused 1 to 4 did not desire to exercise their right. Thus the prosecution has established that the provisions laid down in S.50 of the Act has been complied with during the course of the search on the persons of accused 1 to 4. P. W. 15, as pointed out above, would depose that the information which he received was reduced into Ext. P-20 report and sent the same to P. W. 13, his Superior Officer. It is also the evidence of P. W. 15 that in addition to the sending of Ext. P-20 to P. W. 13, he contacted P. W. 13 by phone and passed on the information. The above testimony of P. W. 15 is squarely corroborated by the oral testimony of P. W. 13 (Superior Officer). It is also the evidence of P. W. 15 that in addition to the sending of Ext. P-20 to P. W. 13, he contacted P. W. 13 by phone and passed on the information. The above testimony of P. W. 15 is squarely corroborated by the oral testimony of P. W. 13 (Superior Officer). Therefore, before proceeding to the spot, the prior information received by P. W. 15 was reduced into writing and the same was sent forthwith to his Superior Officer. But, strictly speaking, the requirements under S.42 of the Act need not be complied with, for, the Restaurant is not a private place and it is a public place. However, the statutory provisions contained in S.42 of the Act is complied with. It is also the case of the prosecution that P. W. 15 on recording the statements of accused 1 to 4 and preparing Ext. P-1 mahazar and other materials which he collected at Kovalam, informed P. W. 9 that the contraband had been concealed in the house of accused 1 and 5 (husband and wife) at Ernakulam and P. W. 9 on obtaining the message from P. W. 15 prepared Ext. P-27 report and forwarded the same to P. W. 14, his Superior Officer. Hence before searching the house of accused 1 and 5 at Ernakulam, the provisions of S.42 of the Act has also been followed by the prosecution. It is the case of the prosecution as pointed out above that 15 grams of hashish was recovered from the first accused, 75 grams of hashish was recovered from the 2nd accused and 15 grams of hashish was recovered from the 4th accused which was handed over to him by the 3rd accused while search, on accused 1 and 2 was going on in the Kovalam Tourist Home. It is also the case of the prosecution that in the house of accused 1 and 5, P. W. 9 and his party recovered 700 grams of Hashish and 1003 grams of white coloured substance on 16th February 1996. The evidence of P. W. 15 is so clear that the narcotic substances were seized from accused 1 to 4. His evidence further would disclose that regarding the recovery and other incidents in the scene of occurrence, preparation of the samples, etc., Ext. P-1 mahazar was prepared. The evidence of P. W. 15 is so clear that the narcotic substances were seized from accused 1 to 4. His evidence further would disclose that regarding the recovery and other incidents in the scene of occurrence, preparation of the samples, etc., Ext. P-1 mahazar was prepared. Samples were packed and sealed and signatures of the accused and witnesses were obtained in the sealed cover. The above evidence of P. W. 15 is corroborated by the oral testimony of P. Ws. 1, 11 and 12. The materials which are relevant in the matter of seizure, dividing the samples, etc., are found in Ext. P1. I do not find any infirmity in Ext. P1 mahazar in respect of the seizure, taking of samples, etc. In the house of accused 1 and 5. Ext. P-3 mahazar was prepared by P. W. 9. I also do not find any infirmity or flaw in Ext. P-3 mahazar. No doubt, the evidence of P. Ws. 9 and 15 would disclose that as provided in S.57 of the Act they sent detailed report. The non compliance of S.57 of the Act, as a matter of fact, will not vitiate the trial as held by the Supreme Court in Balbir Singh's case (stated supra). There Supreme Court has ruled that the provisions under S.52 and 57 of the Act which deal with the steps to be taken by the Officers after making arrest or seizure under S.41 to 44 are by themselves not mandatory. Therefore, if there is non compliance or lapses like delay, etc., that will not vitiate the trial. But, in the instant case, the reports as contemplated under S.57 of the Act, which reads as follows, have been properly sent by P. Ws. 9 and 15. "57. Report of arrest and seizure. Whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior." 7. The next submission of the learned counsel would be with reference to S.67 of the Act, which reads as follows: "67. The next submission of the learned counsel would be with reference to S.67 of the Act, which reads as follows: "67. Power to call for information, etc.- Any officer referred to in S.42 who is authorised in his behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act“ (a) call for information from any "person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case." 8. It is the case of the prosecution that all the accused gave confession statements before the Investigating Officer. Their statements have been marked as Ext. P-17 (A-5), Exts. P-21 and P-22 (A-3), Ext. P-23 (A-4), Ext. P-28 (A-1) and Ext. P-29 (A-2). Subsequently also, their statements have been recorded by P. W. 15, as seen in Exts. P-33 to P-39. According to the prosecution, these statements were recorded under S.67 of the Act and they are admissible in evidence and they have been established by P. Ws. 1, 9, 11 and 15 and those statements can be rightly acted upon against the accused. It was also contended on behalf of the prosecution that at least for the purpose of corroborating the oral testimony of P. Ws. 1, 5, 9, 11 and 13, they can be rightly acted upon. In this regard, the position of law can be examined. The Rajasthan High Court in Kingsley and another v. State of Rajasthan(1996 (3) Grimes 370) has held that the statements recorded from the accused under S.67 of the Act after the arrest of accused cannot be read against him because of Art.20 (3) of the Constitution of India. Art.20 (3) of the Constitution of India reads as follows: "20. Protection in respect of conviction for offences. Art.20 (3) of the Constitution of India reads as follows: "20. Protection in respect of conviction for offences. (1) * * * * (2) * * * * (3) No person accused of any offence shall be compelled to be a witness against himself." The Supreme Court in R. B. Shah v. D. K. Guha( AIR 1973 SC 1196 ) has held that an accused person is entitled to protection under Art.20 (3) of the Constitution of India and hence he cannot be compelled to be a witness against himself. He, however, cannot deny to give information regarding the matters which do not tend to incriminate him in the proceedings. The Supreme Court in Pyare Lal v. State of Rajasthan( AIR 1963 SC 1094 ) has held that the confession under S.24 of the Evidence Act would be irrelevant, namely when it appears to the court to have been caused by any inducement, threat or promise. This Court in Ahammed Koya v. State of Kerala( 1990 (2) KLT 405 ) has held that an Officer invested with the power under S.53 of the Act can be said to be a Police Officer within the meaning of S.25 of the Evidence Act. Therefore, the confession given before or to him is hit by S.25 of the Evidence Act. One of the contentions in this context raised by the learned counsel for ace used 1 and 2 would be that the second accused does not know Malayalam and therefore the confession statement of the 2nd accused is not in his version. In support of the above submission the counsel would place reliance on John Bamidele v. State (1996 CriLJ 3649 (Delhi)). The Supreme Court in Pon Adithan's case (stated supra) held that the confession statements of the accused persons under the Act can be acted upon for corroborating the evidence of the Searching Officer. From the above principle laid down by the Supreme Court, it is obviously clear that the confession statements of the accused recorded under S.67 of the Act is admissible in evidence and that can be acted upon for the purpose of corroborating the evidence of the arresting officers or the officer empowered under S.53 of the Act. 9. Now I will examine the evidence relating to the recovery of the contraband from the accused. 9. Now I will examine the evidence relating to the recovery of the contraband from the accused. Before dealing with the recovery of the contraband from the accused, the position of law with regard to possession can be analysed. This Court in State of Kerala v. W. H. K. Finert ( 1995 (1) KLT 72 ) has laid down that the mere fact that the accused were sitting together or resided in the same hotel cannot be taken as a factor to show that the offences were committed in the course of the same transaction. In other words, the offence committed by one of the persons, like possession in the present case, cannot be branded as an act of the possession of all the persons who were sitting together or residing in the same hotel with the real culprit. The Madras High Court in an earlier decision reported in Sathyanarayana, In re. ( 1953 MLJ 175 ) has held that an illicit article found in the house where a joint family is living, can be presumed that it is known to the head of the family. However, this presumption 5s rebuttable and however in order to justify a conviction on the basis of possession, it has to be established, though it is presumptive in nature, that there is exclusive possession. It is further held in the same Judgment that a person may have possession of a thing through his representative when the representative has physical control over a thing and that physical control is exercised on behalf of the principal and the principal agrees to such exercise. The Supreme Court in Ashiq Miyan v. State of M.P.( AIR 1969 SC 4 ) has ruled that even though a contraband like opium is found in the courtyard of a house, the plea of the accused persons that they were living separately and they were not present at the time of recovery cannot be a good defence particularly when it is properly considered and findings are given by the Trial Court as well as by the appellate court. In other words, when there is legal and proper evidence for the recovery and when there are circumstances for presuming that the accused were in conscious possession of the contraband found in the courtyard of the house, that is sufficient to fasten the liability on the accused persons. In other words, when there is legal and proper evidence for the recovery and when there are circumstances for presuming that the accused were in conscious possession of the contraband found in the courtyard of the house, that is sufficient to fasten the liability on the accused persons. The Madhya Pradesh High Court in State of M.P. v. Gobar Singh (1995 (2) Grimes 815) held that even though the accused person and his brothers were residing in the same house when there was no evidence to connect the concealed opium in a room with the accused, he cannot be said to be in possession of the opium. In other words, when there is no evidence that the accused was in exclusive possession of the room from where the opium was recovered, it could not be said that the accused person is liable for conviction. The Delhi High Court in Om Wati v. State(1990 CriLJ 304) has held that when the accused wife in one room along with her husband and when a huge quantity of opium had been recovered from the bag lying underneath the cot in the room, it could be rightly held that the accused was in conscious possession of the opium and she could not be permitted to say that she was ignorant about the contents of the bag especially the bag was quite visible to her lying underneath the cot. 10. Now, on the basis of the above proposition of law, I will examine the evidence let in by the prosecution for possession and recovery. It has come out in the evidence of P. W. 15 that when they entered the Restaurant accused 1 to 4 were transacting the business in drug and from the 1st accused they recovered 15 grams, from the 2nd accused 75 grams, and from the 4th accused 15 grams, which was handed over to him by the 3rd accused. His evidence further discloses that only after disclosing their identity and complying with the provisions of S.50 of the Act, the above contrabands were recovered from accused 1, 2 and 4. The above evidence of P.W. 15 was corroborated by the evidence of PWs 1, 11 and 12. His evidence further discloses that only after disclosing their identity and complying with the provisions of S.50 of the Act, the above contrabands were recovered from accused 1, 2 and 4. The above evidence of P.W. 15 was corroborated by the evidence of PWs 1, 11 and 12. One of the arguments of the learned counsel for the 3rd and 4th accused would be that when the raiding party was there, it is highly artificial to accept the case of prosecution that in their presence the 3rd accused gave 15 grams of Hashish to the 4th accused. But that argument has no force because the evidence on record and the circumstance would go to show that when they were recovering Hashish from the 1st and 2nd accused, in the spare of the moment out of fear the 3rd accused has handed over 15 grams of Hashish to the 4th accused. If really the 3rd accused had not handed over the Hashish to the 4th accused, there was no necessity for the prosecution to set forth such a case and instead they would have unhesitatingly said that it was recovered from the 4th accused and the 3rd accused was also in possession of a small quantity of Hashish or he had abetted the commission. It is not the defence of the 3rd and 4th accused that on receipt of Hashish from the 3rd accused, the 4th accused immediately threw it on the ground. When that be the situation, the conscious possession of the contraband by the 4th accused has been established. When the 3rd accused has handed over Hashish to the 4th accused in the presence of the raiding party, it could be rightly said that he has contributed the possession with the 4th accused. One of the contentions of the learned counsel for the accused would be that the complaint was originally filed under S.8(c), 20(b)(ii), 25, 27(A) and 29 of the Act and however all of them were found guilty for possession and conspiracy was not found to be established. In such situation the conviction may not be correct. But that submission of the learned counsel for the accused is not correct. For, though the complaint was filed under the above sections, when evidence are available on record for possession alone, the conviction can be rightly recorded for that offence. Thus, there is no illegality or irregularity. In such situation the conviction may not be correct. But that submission of the learned counsel for the accused is not correct. For, though the complaint was filed under the above sections, when evidence are available on record for possession alone, the conviction can be rightly recorded for that offence. Thus, there is no illegality or irregularity. The recovery of the contraband from the accused has been properly recorded in Ext. P-1 mahazar. Exts. P-22 and P-24 are the arrest memo of the 3rd and 4th accused. In these two exhibits it is shown that the accused were in possession of 15 grams of Hashish. Therefore, the learned counsel appearing for the 3rd and 4th accused submitted that when these two memoes are read carefully, they would go to show that from each of the accused 15 grams of Hashish was recovered; but that was not the case of the prosecution. That submission of the learned counsel for the 3rd and 4th accused, I am not able to appreciate because it is the case of the prosecution that while the raiding party was recovering Hashish from the 1st and 2nd accused, the 3rd accused handed over the Hashish to the 4th accused and the prosecution would further contend that when that be the position, both the 3rd and 4th accused are equally liable for possession of 15 grams of Hashish. In that circumstances it had occurred to write so in Exts. P-22 and P-24. Therefore, because of that I feel that the 3rd and 4th accused cannot take advantage of it. So far as the 5th accused is concerned, one of the submissions of her learned counsel would be there is no proper evidence to establish the exclusive possession of the 5th accused. As I have pointed out above there is reliable evidence to fasten the liability of possession on the 5th accused. The contention of the learned counsel, therefore, that there is no incriminating circumstance against the 5th accused cannot be accepted and one of his contentions would be that the 5th accused is not the legally wedded wife of the 1st accused and she had been cheated by the 1st accused and in fact she was not aware of this transaction of Hashish. This also could not be appreciated in view of the clear evidence let in by the prosecution. This also could not be appreciated in view of the clear evidence let in by the prosecution. In this context, it is also pertinent to refer to S.54 of the Act, which reads as follows: "54. Presumption from possession of illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of (a) any narcotic drug or Psychotropic substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or Psychotropic substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or Psychotropic substance, or any residue left of the materials from which any narcotic drug or Psychotropic substance has been manufactured, for the possession of which he fails to account satisfactorily." 11. In examining the above evidence of the witnesses for possession, S.54 of the Act extracted above has also to be considered along with the confession statements of all these accused recorded under S.67 of the Act. As per the principle laid down by the Supreme Court extracted above, the confession statements can be taken for the purpose of corroboration of the oral testimony projected by the witnesses, PWs 11, 12, etc. to speak of the possession and the recovery. The recording of the statements of all the accused has been properly established by the oral testimony of PWs 11 and 15. Their evidence would disclose that these statements were voluntarily rendered by the accused and the evidence of PWs 11 and 15 in this regard is corroborated by the oral testimony of P.W. 1, an independent witness. P.W. 9, on the information received, searched the house of 1st and 5th accused in Ernakulam in the presence of P.W. 2, P.W. 3 is the landlord of the house of accused 1 and 5 and his evidence would disclose that accused 1 and 5 have been residing in his house as tenants and the house was searched by the Superintendent of Central Excise and recovered 740 grams of Hashish. P.W. 2 in this regard would speak that on the relevant night the house of the 5th accused was searched by the Central Excise Officers and they recovered 740 grams of Hashish in 9 pieces from the kitchen room where it was concealed in the carton of a Sumeet Mixie. That evidence of P.W. 2 in fact is corroborating the oral testimony of P.W. 9. Therefore, the 5th accused cannot plea ignorance that it was put in the kitchen without her knowledge. In that situation, it can be rightly concluded that it was in her exclusive possession. Regarding the recovery of the same, the oral testimony of PWs 2, 3 and 9 stand unassailed. 12. Now yet another submission advanced by the learned counsel for the accused would be that there was some infirmities in the matter of taking the samples, sending them to the court and from there to the Chemical Analyst, in the mode of test of samples by the Analyst and in the preparation of the report by the Analyst. To strengthen the above submission, learned counsel also drew my attention to the principle of law laid down in the following decisions and the learned Public Prosecutor also in support of the prosecution placed reliance on some decisions. The Supreme Court in Jagadish Budhroji Purohit v. State of Maharashtra(1998 SCC (Crl.) 1578) has ruled that regarding the colour of the article seized even there is some doubt as between the evidence of the seizing party and Chemical Examiner's report, the said difference regarding the colour cannot assail the report when particularity the other circumstances are to be clinching that the same article was sent for chemical analysis and especially when the raiding party were trained to test narcotic substances and had necessary equipment to test the same. In Dhian Singh v. Saharanpur Municipality( AIR 1970 SC 318 ) the Supreme Court has laid down that the report of the Public Analyst need not contain the mode or particulars of the analysis nor the test applied. But, no doubt, it should contain the result of the analysis, namely the data from which it can be inferred, whether the articles were not adulterated, etc. This court in Ismail v. State of Kerala(1991 CriLJ 2945) has held that the report of the Analyst can be marked and acted upon under S.293 Cr. But, no doubt, it should contain the result of the analysis, namely the data from which it can be inferred, whether the articles were not adulterated, etc. This court in Ismail v. State of Kerala(1991 CriLJ 2945) has held that the report of the Analyst can be marked and acted upon under S.293 Cr. P.C. without the examination of the Analyst though the court can summon and examine him if it thinks fit. The Rajasthan High Court in Gopal v. State of Rajasthan(1988 (3) Crimes 485) has held that once the sample was sent to Chemical Examiner it was the duty of the prosecution to prove beyond doubt that the sample was sealed and seal was intact and it was sent in intact condition to the Laboratory for examination. This Court in State of Kerala v. Shaju( 1985 KLT 33 ) has held that a Joint Chemical Examiner also can be considered as a Chemical Examiner as per S.293 Cr. P.C. and it was further held that the certificate of the Chemical Examiner should show both the reason and conclusion. If those datas are not available, the Chemical Examiner has to be necessarily examined on the side of the prosecution. The Rajasthan High Court in The State v. Motia (AIR 1985 Rajasthan 82) has held that the article sent to the Chemical Examiner must be the same recovered from the accused. The Supreme Court in State of Rajasthan v. Daulat Ram ( AIR 1980 SC 1314 ) held that it is the duty of the prosecution that to clear off any doubt that it was the same sample recovered from the accused persons sent to the Chemical Analyst for his examination. When there is evidence that the sample has passed through so many hands before reaching the Chemical Analyst for his examination, the doubt that there may be a tampering in the sample has to be removed by the prosecution by examining those witnesses. 13. Now, on the above principle of law, let me look into the evidence adduced by the prosecution. The sample taken from, the contraband recovered from the accused was sent to the Chemical Analyst for examination. A reading of the evidence of PWs 9, 13, 14 and 15 would show that the recovery was proper, that the samples were properly taken, packed and sealed and they were sent to the chemical analysis through usual course. The sample taken from, the contraband recovered from the accused was sent to the Chemical Analyst for examination. A reading of the evidence of PWs 9, 13, 14 and 15 would show that the recovery was proper, that the samples were properly taken, packed and sealed and they were sent to the chemical analysis through usual course. In fact the evidence of P.W. 15 that samples were taken from the contraband recovered, they were packed and sealed and signatures of the witnesses and accused were obtained is corroborated by the oral testimony of PWs 1, 11 and 12. The evidence of P.W. 9 would disclose that from the house of 1st and 5th accused, as pointed out above, he has seized Hashish and white sugar and samples were taken, packed and sealed and the signatures of the 5th accused as well as the Officers and witnesses were obtained thereon and the entire matters have been written by him in Ext. P-3 mahazar. The above evidence of P.W. 9 has been corroborated by the oral testimony of P.W. 2 and P.W. 5, the landlord. Thus, in the matter of recovery of the contraband from the accused and taking samples from the contraband, in packing them and scaling them, I am of the view that there are reliable and acceptable evidence on the side of the prosecution, When I once again examine the oral testimony of the witnesses, the complainant and the raiding party, I do not find any tampering in the sample sent for Chemical examination. Infact the articles seized from the accused were immediately produced in the court and the article seized from the house at Ernakulam was also immediately sent to P.W. 14. Though there are some minor contradictions in the evidence of the witnesses, particularly the officers of the Central Excise, examined as PWs 9, 14, 15, 11 and 12 in the matter of recovery, taking sample and sending them for chemical examination on examination of the entire evidence in a broad manner, I do not find any defect and infirmity affecting the case of the prosecution. Therefore, the non examination of all the witnesses who sometimes had handled the samples will not affect the root of the prosecution case, in view of the clear evidence given by the above witnesses. The Chemical Analyst's report with regard to the contraband seized at Kovalam has been marked as Ext. Therefore, the non examination of all the witnesses who sometimes had handled the samples will not affect the root of the prosecution case, in view of the clear evidence given by the above witnesses. The Chemical Analyst's report with regard to the contraband seized at Kovalam has been marked as Ext. P-41 and a reading of Ext. P-41 would disclose that what are necessary for arriving at a conclusion in report are found thereon. In other words, when Ext. P-41 is examined on the basis of the principle laid down by the courts referred to above, particularly by the Supreme Court, it is in accordance with the provisions of law. The evidence of P.W. 10, S. Sindhu, a Scientific Assistant, who issued Ext. P-19 report, relating to the sample of contraband recovered in the house of accused 1 and 5, is so clear that the sample she tested was Hashish. Both the documents, Exts. P-19 and P-41, would contain the signatures of the relevant Officers and the materials required for examination arc also found in these exhibits. A careful scrutiny of Ext. P-19 and the oral testimony of P.W. 10 would unambiguously establish that the sample taken from the contraband recovered from the house of accused 1 and 5 is nothing but Hashish. The sample taken from accused 1 to 4 was sent to the Chemical Examiner, Customs House, Ernakulam and one Jose, one of the Examiners of the Chemical Laboratory issued Ext. P-41 report, wherein he has stated that the sample he has examined was Hashish and he has reported therein that he could not do the quantitative test as the equipment for that purpose was not there. However, according to him the samples have the characteristics and odour of Hashish. This report, in fact has been marked under S.293 Cr. P.C. and the genuineness of Ext. P-41 was not challenged before the Trial Court. If any challenge is made by the accused in the Trial Court and if the Trial Court thinks it necessary it could examine the expert for clearing off the doubt as to the genuineness in the contents of the report. But, in the instant case, as pointed out above, Est. P-41; was not challenged before the Trial Court by the accused. They also did not take any steps to examine the Examiner to rebut the contents of Ext. P-41. But, in the instant case, as pointed out above, Est. P-41; was not challenged before the Trial Court by the accused. They also did not take any steps to examine the Examiner to rebut the contents of Ext. P-41. In this context it is worthy of reminding the provisions in S.54 of the Act as well as the confession statements recorded under S.67 of the Act. In these circumstances, I am fully satisfied to hold that the prosecution has properly established the recovery of the Hashish from the possession of the accused. It was also one of the contentions of the learned counsel for the 2nd accused that the second accused does not know Malayalam and he has also not fully known English and therefore, the confession statement said to have been given by him and the answers said to have been given by him while he was examined under S.313 Cr. P.C. could not be treated that they are in accordance with the provisions of law and they lead to a suspicion in the case of the prosecution. But that submission has no merit when I look into the confession statement and the 313 statement of the 2nd accused. His confession statements marked as Exts. P-29 and P-35 have been recorded in English and he has put his signature in English. In the 313 statement it is endorsed that the contents of the statement were read over to the 2nd accused in Hindi through the Inspector. In the said statement also he has put his signature in English and he has not stated during the examination under S.330 Cr. P.C. that he docs not know English either to read or to understand or to write. Hence, as I have pointed out above, the submission of the learned counsel that the confession statements were not the voluntary statements of the 2nd accused cannot be accepted. A reading of the confession statement recorded from the accused would go to show that they have been properly recorded by the Officers concerned and no doubt, some portions of the confession statements are in passive voice and some of them are in the active voice. 14. On totality of consideration of all materials I am fully satisfied to support the conviction and sentence rendered by the learned Sessions Judge. 14. On totality of consideration of all materials I am fully satisfied to support the conviction and sentence rendered by the learned Sessions Judge. Accordingly, all the appeals stand dismissed confirming the conviction and sentence delivered by the Sessions Judge, Thiruvananthapuram in SC 112 of 1996.