Abraham v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937** ## **CRL.A.No. 1559 of 2005** **---------------------------** ## **AGAINST THE JUDGMENT IN SC 639/2004 of ADDL.SESSIONS COURT (ADHOC-II), THODUPUZHA DATED 10-08-2005** **APPELLANT :** **------------------** **ABRAHAM, S/O.POULOSE, AGED 51 YEARS, THENGANAMKUDIYIL VEEDU, PLAKKAYAM KARA, MANNANKANDAM VILLAGE, DEVIKULAM TALUK.** ## **BY ADV. SRI.P.T.JOSE** **RESPONDENT :** **---------------------** **STATE OF KERALA, REP. BY EXCISE INSPECTOR, ADIMALY, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rmm** ## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.1559 of 2005 ---------------------------------Dated this the 17[th] day of March, 2016** ## **J U D G M E N T** This appeal is preferred by the accused against the conviction and sentence in S.C. No.639 of 2004 of the Additional Sessions Court (Adhoc-II), Thodupuzha under Sec.8(2) of the Abkari Act. The charge against the appellant is that on 03.08.2002 at 7.30 a.m., he was found in possession of two litres of arrack at Plakkayam in Padikkappu- Kattamudi road by the Excise Inspector, Adimaly. He was arrested and the contraband articles were seized, thereafter registered a crime. After completing investigation, the Excise Inspector, Adimaly laid charge before the Judicial First Class Magistrate Court, Adimaly, subsequently, the case was committed to Sessions Court, Thodupuzha. From there, it is made over to Additional Sessions Judge, Adhoc-II. 2. During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P6 as documentary evidence. They also admitted MO1 as material object. The ## Crl. Appeal No.1559 of 2005 2 incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused and sentenced him to rigorous imprisonment for one year and a fine of Rs.1,00,000/- (Rupees one lakh only) and in default of payment of fine, rigorous imprisonment for three months. Being aggrieved by that, the accused preferred this appeal. 3. The main contention advanced by the learned counsel appearing for the appellant is that there was no proper sampling or labelling of the seized articles. The evidence of PW1 shows that he entered the crime number in the thondi articles even before registering of the case, is highly unbelievable. The independent witnesses PW3 and PW4 also denied their signature in the label. Therefore, the appellant is entitled to get the benefit of doubt. 4. I heard the learned Public Prosecutor also. 5. The Apex Court in **Mohanlal V. State of** ## Crl. Appeal No.1559 of 2005 3 ## **Rajasthan [2015 (5) SCALE 330]** held that; “ The term “possession” for the purpose of Sec.18 of the NDPS Act could mean physical possession with animus custody, or domain over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the “Chattel” i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. ” 6. The offence was detected by PW1, Excise Inspector, Adimaly who deposed that on 03.08.2002 at 7.30 a.m., while he was conducting patrol duty the Crl. Appeal No.1559 of 2005 4 appellant was found carrying MO1 in front of his house. PW1 intercepted him and inspected MO1 in which he detected two litres of arrack, from that he took sample of 200 ml and sealed it at the place of occurrence. He affixed label in the sample and sealed MO1 and sample at the place of occurrence for that, he prepared Ext.P2 Mahazar. PW1, accused and independent witnesses present there affixed their signature in the label. The accused was arrested, the contraband articles and accused were produced in the Excise Office, where registered Ext.P3, crime and occurrence report. The accused and the contraband articles were produced before the court on the same day itself. Ext.P1 is the arrest memo. Ext.P4 is the property list. The arrack was sent over to chemical examiner's lab through court, Ext.P5 is the forwarding note. During cross examination, he deposed that the appellant is familiar to him and several complaints were received against him. He deposed that the crime number was recorded in the slip at the time of seizure itself and while conducting patrol Crl. Appeal No.1559 of 2005 5 duty, he knew the crime number. 6. The evidence of PW2 shows that the appellant was found carrying MO1 towards public road from the nearby canal but the place of occurrence was not stated by PW2. He admitted that PW1 took 200 ml as sample. He also admitted that the crime number was recorded at the place of occurrence itself, which is suspicious fact even before the registering of the case, the Excise Inspector had given crime number to the seized articles from the place of seizure. 7. On a perusal of the provisions of the Abakri Act, it is clear that immediately after seizure of article they have to produce those articles in the Excise Range Office and thereafter, register the crime and number the articles seized, as per rules. The procedure adopted by PW1 and PW2 create a doubt in the credibility of the prosecution case since no place of occurrence was specifically mentioned by PW1 and PW2 at the time of detection. PW1, in his evidence stated that the appellant was found carrying MO1 but the place at which, MO1 ## Crl. Appeal No.1559 of 2005 6 was being carried was not disclosed in his evidence. The evidence of PW2 shows that he was proceeding through a nearby canal. The contradictory statements given by PW1 and PW2 create doubt in the credibility of the alleged seizure. 8. The independent witness, PW3 admitted that he put his signature in Ext.P2 seizure mahazar near the house of the appellant but he did not see the seizure of MO1. Another independent witness PW4 admitted his signature in Ext.P1, but he denied the signature in Ext.P2. PW4 signed in Ext.P1 in front of the house of the appellant, but he admitted his signature in the label in MO1. PW3 denied the signature in the label. PW5 conducted investigation and PW6 verified the records and laid charge before court. The arrack was examined in the chemical examiner's lab and obtained Ext.P6 certificate. As per Ext.P6, 41.89% of ethyl alcohol was detected in the sample. Analysing the evidence in this case, it is found that there is serious legal infirmity in connection with the seizure. The label in MO1 was not properly Crl. Appeal No.1559 of 2005 7 affixed by the detecting officer. In order to attract the offence, the prosecution has to prove the case beyond reasonable doubt. Apex Court in **Makhan Singh v. State of Haryana [2016 (1) SCC 96 ],** while discussing the provisions of Narcotic Drugs and Psychotropic Substanaces Act held that, “when more stringent punishment is provided, more heavy is upon the prosecution to prove the offence and strict proof is necessary for proving the search, seizure and recovery”. While appreciating the oral evidence of PW1 and PW2, there is some illegality and irregularity in registering the case, taking sample and affixing label etc. Moreover there is no independent evidence to prove the seizure. After examining the facts and circumstances revealed from the prosecution evidence, I am of the opinion that the appellant is entitled to get the benefit of doubt. In such a situation, the reasonable doubt created in the mind of the court is sufficient to show that the prosecution failed to prove that the accused was in possession of two litres of arrack as alleged. Crl. Appeal No.1559 of 2005 8 In the result, the conviction and sentence passed by the trial court under Sec.8(2) of the Abkari Act are set aside. The appellant is acquitted and set at liberty. NS/21/03/2016 Sd/- **P.D. RAJAN JUDGE** / True Copy / P.A. To Judge