Ammini @ Ammalu v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938** **CRL.REV.PET.NO. 2249 OF 2005 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.106/2004 OF SESSIONS COURT, KOZHIKODE DATED 30-08-2005** **AGAINST THE JUDGMENT IN SC NO.331/2002 OF SESSIONS COURT, KOZHIKODE DATED 21.01.2004** **-------------------** **REVISION PETITIONER(S)/ACCUSED/APPELLANT:** **----------------------------------------** **AMMINI @ AMMALU, W/O.KUNHIKANDAN, PADINJAREKOTTOORVEEDU, MANGOTTUVAYAL, KOTOOLI, KOZHIKODE.** **BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH** **RESPONDENT(S)/STATE/COMPLAINANT:** **--------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. STATION HOUSE OFFICER, MEDICAL COLLEGE POLICE STATION, KOZHIKODE.** **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** --------------------------- ## **Crl.R.P. No.2249 of 2005** ---------------------------------------------Dated this the 20[th] day of October, 2016 ## **O R D E R** ## **----------------** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.106 of 2004 of the 1[st] Additional Sessions Judge, Kozhikode. He was charge sheeted in S.C. No.331 of 2002 by the 3[rd] Additional Assistant Sessions Judge, Kozhikode for the offences under Secs.55(a) and (g) of the Abkari Act. The learned 3[rd] Additional Assistant Sessions Judge convicted the accused under Sec.55(a) and (g) of the Abakri Act and sentenced to undergo simple imprisonment for one year each and fine of Rs.1,00,000/- in default, simple imprisonment for one month. Against that, the accused preferred the above Criminal Appeal, where the learned 1[st] Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 04.01.2001 at 2.00 p.m., the accused was found Crl.R.P. No.2249 of 2005 2 manufacturing illicit arrack at her residence, House No.29 of 1196 of the Kozhikode Corporation. The Additional Sub Inspector, Medical College Police Station, Kozhikode detected the offence and seized 3 litres of arrack from that house. After completing investigation, he laid charge in the Judicial First Class Magistrate Court, Kunnamangalam. From there, the case was committed to Sessions Court, Kozhikode and subsequently it was made over to the trial court. During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P12 as documentary evidence. MO-I to MO-VII were marked as material objects. Incriminating circumstances brought out in evidence were denied by the accused while questioning her. She did not adduce any defence evidence. 3. Learned counsel appearing for the revision petitioner contended that there is no proper evidence to prove the ownership and possession of the house from where the arrack was seized. Ext.P12 certificate is not conclusive with regard to the identity of the house. ## Crl.R.P. No.2249 of 2005 3 Therefore, the accused is entitled to get the benefit of doubt. ## 4. The Apex Court in **Mohan Lal vs. State of Rajasthan [ 2015 (5) Scale]** discussed about possession of opium and in which it was held that; B. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to “ actus of physical control and custody”. Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word possession. (para 8). E. from the aforesaid exposition of law it is quite vivid that the term “possession” for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion 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 ## Crl.R.P. No.2249 of 2005 4 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”. 5. In this context, I have examined whether Additional Sub Inspector is an Abkari officer as per the Abkari Act. According to the notification S.R.O. No.321/1996 dated 29.03.1996 authorized all police officers of and above the rank of Sub Inspector of Police to discharge his duties conferred on an Abkari Officer. The notification reads as follows: “ SRO.No.321/1996:- In exercise of powers conferred by section 4 of the Abkari Act, 1 of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective Jurisdiction for the purpose of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid. The notification shall come into force with immediate ## Crl.R.P. No.2249 of 2005 5 ## effect.” 7. The report of abkari officer u/s 50 of the Abkari Act confer jurisdiction to a competent Magistrate to take cognizance. According to S.50(1), every investigation into the offence under this Act shall be completed without unnecessary delay and S.50(2) says as soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward it to a Magistrate, empowered to take cognizance of the offence on a police report, which is a report in accordance with Sub-s.(2) of S.173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). A close reading of the Section shows that the Magistrate can take cognizance only on the basis of a report filed by the Abkari Officer. An Abkari Officer is defined under sub-s(2) of S.3, which reads as follows: “ Abkari officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Ss.4 or 5. Government by notification dated 29.03.1996 authorised all police officers above the rank of Sub Inspector of Police to discharge all the duties conferred on an Abkari Officer. In this Context, I can say Assistant Sub Inspector of Police is not an Abkari Officer as defined under the Act. The evidence of PW1 shows that on the basis of the prior information, he arrived at the place of occurrence with the police party and detected the offence.” 6. The detection in this case was made by the Crl.R.P. No.2249 of 2005 6 Additional Sub Inspector, Medical College Police Station. His evidence shows that on 04.01.2001 at 1.00 p.m., he was conducting patrol duty and detected the offence in this case. He arrived at the place of occurrence and seized arrack from the house. He took sample in two bottles and affixed label and also obtained signature of the witnesses. Ext.P1 is the search memorandum, Ext.P2 is the search list and Ext.P3 is the arrest memo. Reaching at the police station he registered a crime, Ext.P4 is the FIR. MO-I to MO-IV were taken into custody after describing in the mahazar. He also seized MO-V, MO-VI and MO-VII series. PW2 supported the evidence of PW1. PW3 attested Ext.P2 search list. PW4 attested Ext.P6 mahazar. But he did not see the seizure of the article. PW5 prepared Ext.P8 rough sketch. PW6 prepared Ext.P6 scene mahazar. Ext.P9 is the property list, Ext.P10 is the forwarding note, Ext.P11 is the chemical analysis report and PW12 is the ownership certificate. Even though Ext.P12 was produced in the trial court the address of the revision petitioner was not mentioned in Ext.P12. ## Crl.R.P. No.2249 of 2005 7 Therefore, Ext.P12 is not sufficient to prove the ownership and possession of the house. 7. This Court in **Saji @ Kochumon v. State of Kerala [2010 3 KLT 471]** held that Sub Inspector of Police notified under Sec.4 of the Abkari Act alone can be acted as abkari officers for the purpose of Secs.4 and 5. As per the notification S.R.O. No.321/1996 Additional Sub Inspector is not an abkari officer. The trial court and appellate court failed to consider the above notification at the time of convicting the accused. In view of the settled law, the conviction and sentence passed by the trial court under Sec.55(a) and (g) of the Abkari Act are set aside. The accused is acquitted and set at liberty. This Criminal Revision Petition is allowed accordingly. ## Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge NS/20/10/2016