Conviction requires substantive evidence; mere circumstantial evidence is insufficient to prove possession when key identification procedures are not followed.

JUDGMENT :

JOHNSON JOHN, J.

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 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.

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 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 the