Aleykutty v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 1[ST] DAY OF JUNE 2022 / 11TH JYAISHTA, 1944 CRL.A NO. 142 OF 2008 ``` ``` AGAINST THE JUDGMENT SC 415/2006 OF THE ADDITIONAL SESSIONS COURT (NDPS ACT CASES), THODUPUZHA ``` ## **`APPELLANT/ACCUSED:`** ``` ALEYKUTTY, AGED 63 YEARS, W/O CHACKO,VALLAVASSERIKKUDIYIL (H), PARATHODU KARA,UDUMPANCHOLA TALUK. ``` ``` BY ADV SRI.SOORAJ T.ELENJICKAL ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA THROUGH EXCISE INSPECTOR, UDUMPANCHOLA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ``` ``` BY ADV. SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.142 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 142 of 2008 --------------------------------------------- Dated this the 1[st] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 18.01.2008, passed by the Additional Sessions Court, Thodupzha in Sessions Case No.415 of 2006, the accused has preferred this appeal. The appellant/ accused was convicted under Sections 55(a) and 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of five years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 13.05.2003 at 7.30 p.m. the Excise Inspector, Udumbanchola, seized 269 bottles of coloured illicit arrack, intended for sale, from the building No.VIII/284 of Udumbanchola Grama Panchayath in Idukki District. The prosecution further alleges that the accused was in possession of the contraband substances kept in the building wherein she was residing. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act before the jurisdictional ``` Crl.A.No.142 of 2008 ``` ``` 3 ``` Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charges were framed against her for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, she came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts. P1 to P11, and MOs 1 to 4 series. 5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. Exts.D1 & D2 were marked on the side of the defence. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 55(a) and 8(2) of the Abkari Act and she was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of five years and pay a fine of Rs.1 Lakh under Sections 55(a) and 8(2) of the Abkari Act. 6. Heard Sri. Sooraj T. Elenjickal, the learned counsel ``` Crl.A.No.142 of 2008 ``` ``` 4 ``` appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- (1) The delay in production of the properties, including the sample has not been satisfactorily explained by the prosecution. (2) The prosecution failed to establish the conscious possession of the contraband by the accused. (3) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. (4) The prosecution also failed to establish the identity of the person who was allegedly in possession of the contraband substance. 8. The learned counsel for the appellant contended that there is inordinate delay in sending the properties, including the sample, to the Court. The alleged incident took place on 13.05.2003. Ext.P7 property list shows that the material objects were produced before the Court only on 16.05.2003. The prosecution has not offered any satisfactory explanation for the delay in the production of the ``` Crl.A.No.142 of 2008 ``` ``` 5 ``` properties before the Court. 9. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in the production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (emphasis supplied) 10. In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 11. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 12. As per the prosecution case, on getting reliable information that illicit arrack was kept by the accused in her ``` Crl.A.No.142 of 2008 ``` ``` 6 ``` residence the Excise team led by PW2, the Excise Inspector, Udumbanchola, searched building No.VIII/284. PW2, the detecting officer, deposed that they searched the residence of the accused at 7.30 p.m., in her presence and recovered the contraband substance. They could not arrest the accused as no woman police constable was with the Excise team. Thereafter also the accused was not arrested as she was in judicial custody in another crime. The independent witnesses did not support the prosecution case that a search was conducted on the date of occurrence at the residence of the accused and seizure was effected. PW2 and the other official witnesses who identified the accused in the Court had no opportunity to see the accused after the incident. They had no previous acquaintance with her. They identified the accused in the Court after a long lapse of four years, in 2007. No test identification parade was conducted in this case. 13. It is well settled that where a witness identifies an accused, who is not known to him, in the Court for the first time, his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court ``` Crl.A.No.142 of 2008 ``` ``` 7 ``` {vide: **Kanan and others v. State of Kerala** [AIR 1979 SC 1127] **, Jameel v. State of Maharashtra** [AIR 2007 SC 971] **, Raja v. State by Inspector of Police** [AIR 2020 SC 254] **, State (Delhi Administration) v. V.C.Shukla and another** [AIR 1980 SC 1382] **, Mohd.Abdul Hafeez v. State of AP** [AIR 1983 SC 367]}. So, on this ground alone, the prosecution must fail. 14. The prosecution relied on Ext.P10, a Certificate issued by the Secretary of Udumbanchola Grama Panchayath, to establish that the accused was in possession of the building in question. Admittedly, the building in question is a residential building wherein the accused and other members of her family are residing. In the instant case, the prosecution failed to establish the exclusive possession of the building from where the bottles containing the liquor were recovered. There is no convincing evidence to establish the dominion and control over the contraband substances by the accused. 15. While dealing with the question of possession of contraband substance in the context of the Abkari Act, this Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] held thus:- “20. The word 'possession' is not defined in the Abkari Act. The Halsbury's Laws of England, (5th edition, para 834), defines 'possession' as follows: - “834. Physical and legal possession distinguished. - 'Possession' is a word of ambiguous meaning, and its ``` Crl.A.No.142 of 2008 ``` ``` 8 ``` legal senses do not coincide with the popular sense. Its meaning depends upon the context in which it is used. In English law it may be treated not merely as a physical condition protected by ownership, but as a right in itself. The word 'possession' may mean effective, physical or manual control, or occupation, evidenced by some outward act, sometimes called de facto possession or detention as distinct from a legal right to possession. This is a question of fact rather than of law. ' Possession' may mean legal possession: that possession which is recognised and protected as such by law. The elements normally characteristic of legal possession are an intention of possessing together with that amount of occupation or control of the entire subject matter of which it is practically capable and which is sufficient for practical purposes to exclude strangers from interfering.'' 21. In order to establish 'possession', prosecution must prove that the person who is alleged to be in possession of a contraband article has dominion or control over such article. [See: **Ravi C. v. State of Kerala** (2011(3) KHC 427)]. 22. In **Gunwantlal v. State of M.P** (1972 KHC 464), the Apex Court in the context of Section 25(1)(a) of the Indian Arms Act held that the real test for determining “whether a person is in possession of anything is whether he is in general control of it. 23. 'Possession' of an article involves power to control and intent to control. The inevitable factor to be proved by the prosecution to establish 'possession' is, dominion or control over the contraband article by accused. A person may have dominion or control over the contraband article, if he is in actual possession of the article. Even if a person is not in actual or physical custody of a contraband article, it is well settled that prosecution can establish 'possession' if it can successfully prove that accused has control or dominion over such property. Such possession is referred to as 'constructive possession'. [See : **Gunwantlal v. State of M.P** in 1972 KHC 464=1972 (2) SCC 194 Halsburys laws of England (supra)]. xxx xxx xxx ``` Crl.A.No.142 of 2008 ``` ``` 9 ``` 26. The accused faces a charge that attracts stringent punishment. A balance, thus, must be struck while constructing the meaning of a word in the statute ('possession' in the present context) that takes in the basic ingredient of the offence alleged. The prosecution has to establish "possession of wash" by the accused to bring home the charge against him. Where the offence alleged seeks to deprive the accused of his liberty for a period extending to ten years, a "word" in the definition of the penal provision, that embraces within it the fundamental ingredient of the offence, is to be strictly constructed. Hence the prosecution has to establish the conscious possession of the contraband substance by the accused to attract the offence alleged”. 16. In the instant case, the prosecution failed to establish that the accused had actual control over the contraband substance allegedly recovered from the building No.VIII/284. 17. The detecting officer had collected the sample from the contraband substance recovered from the place of occurrence in four bottles. As discussed above, the bottles were produced before the Court belatedly. Ext.P8 is a copy of the forwarding note/requisition for sending sample to the laboratory. Ext.P11 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory on 16.05.2003. Ext.P8 is silent regarding the officer with whom the bottles containing the sample were forwarded to the laboratory. Ext.P11 further shows that the four bottles containing the sample reached the laboratory on ``` Crl.A.No.142 of 2008 ``` ``` 10 ``` 17.05.2003. The sample remained in the custody of the Property Clerk of the Court, and Sri. K.S.Surendran, the Excise Guard who delivered the bottles containing the sample to the laboratory. These officials were not examined by the prosecution. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during its transit from the Court to the laboratory. The prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence was forwarded to the laboratory and subjected to analysis. 18. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 19. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when it reaches the laboratory is required to be established by the prosecution. ``` Crl.A.No.142 of 2008 ``` ``` 11 ``` 20. In **Sasidharan v. State of Kerala** (2007 (1) KLT 720), this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner in a tamper-proof condition. Relying on State of **Rajasthan v. Daulath Ram** (AIR 1980 SC 1314) in **Sasidharan** (supra) this Court held that where sample changed several hands before reaching the Chemical Examiner, the prosecution had to necessarily examine the various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. In **Sathi v. State of Kerala** [2007 (1) ILR 718 (Ker.)], this Court re-emphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc. of the contraband to be sent for Chemical Examination. In **Sathi** (supra), this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was shown to have been performed. This Court specified that the presumption under S. 114(e) of the Evidence Act has no application in circumstances where official acts are not shown to be performed properly. The ratio in **Sasidharan** (supra) and **Sathi** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala** (2011 (3) KLT 353). ``` Crl.A.No.142 of 2008 ``` ``` 12 ``` 18. Therefore, Ext.P11 Certificate of Chemical Analysis has no evidentiary value. 19. In **Vijay Pandey v. State of U.P** (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 20. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314], **Sasidharan v. State of Kerala** [2007 (1) KHC 275]}. 21. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt. 22. The upshot of the above discussion is that the prosecution failed to establish the identity of the person who was carrying the contraband substance at the place of occurrence and ``` Crl.A.No.142 of 2008 ``` ``` 13 ``` the possession of the same by accused and that the contraband substance allegedly recovered from the place of occurrence was subjected to chemical analysis. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK