Anish @ Ambily v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944** ## **CRL.A NO. 799 OF 2008** **AGAINST THE ORDER OF CONVICTION AND SENTENCE PASSED IN S.C.NO.450/20117 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-I), ERNAKULAM DATED 09/04/2008 APPELLANT/ACCUSED-A2:** **ANISH @ AMBILY, S/O.NARAYANAN, MOZHIYATTU VEEDU,, MAYILADUMPARA, PERISSERY, CHENGANNUR. BY ADVS. SRI.R.ANIL SRI.T.ANIL KUMAR SRI.MANU TOM SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.THOMAS ABRAHAM NILACKAPPILLIL SRI.M.VIVEK** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY THE PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR** **OTHER PRESENT:** **SMT. REKHA.S - (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.799 of 2008** **2** ## **JUDGMENT** ## **Dated this the 25[th] day of May, 2022** This appeal is directed against the judgment dated 09.04.2008 in S.C.No.450 of 2007 on the file of the Additional Sessions Court (Adhoc-I) Ernakulam which arose from Crime No.178 of 2005 of Cheranelloor Police Station. The appellant is accused No.2 in the crime. 2. By the impugned judgment, the appellant was convicted for the offence punishable under Section 55(a) of the Abkari Act. He was sentenced to undergo simple imprisonment for a period of one year and pay a fine of Rs.1,00,000/- . 3. The prosecution case is that on 14.11.2005, at about 11.15 pm., the appellant/accused and the other accused were found transporting 420 litres of spirit in 12 white cans in a car bearing Reg.No.KL-3/M-7289 through Varappuzha bridge. 4. After completing the investigation, Cheranalloor Police submitted final report against the appellant and the other accused before the Judicial First Class Magistrate – II, Ernakulam. On the appearance of the accused, the Court framed charge against them. They pleaded not guilty. **CRL.A.No.799 of 2008** **3** 5. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P14 and MO1 series. 6. After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C were recorded. They pleaded total innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant as aforesaid. The other accused was acquitted. 7. Heard Sri.R.Anil., the learned counsel for the appellant and Smt.Rekha.S., the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- - (a) The prosecution failed to establish that the contraband substance allegedly recovered from the possession of the appellant/accused reached the Chemical Examiner's laboratory in a tamper-proof condition. - (b) The prosecution has not succeeded in establishing the **CRL.A.No.799 of 2008** **4** chain of custody of the contraband commencing from the place of occurrence to the stage when it reached the Chemical Examiner's laboratory. - (c) The prosecution has not established the possession - of the contraband substance by the appellant/accused. 9. Learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- - (a) The prosecution failed to show that the specimen of the seal was produced before the Court. - (b) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. - (c) The property clerk of the Court and the police constable, who delivered the sample in the - laboratory, were not examined to establish the tamper-proof despatch of the sample to the laboratory. 10. PW7, the then Sub Inspector of Police, Cheranelloor Police Station detected the offence. On 14.11.2005 at 10.30 pm., he was on patrol duty. When he reached cheranelloor ferry, he found four persons rushing away from a **CRL.A.No.799 of 2008** **5** nearby car bearing Reg No. KL-01-H -5481, in a boat through the river. PW7, searched the car and recovered 4 cans containing 35 litres of arrack. PW7 further found another car bearing Reg.No.KL-3/M-7289 parked 100 metres away from the other car. On search, he found 12 cans containing illicit arrack in the said car. He recovered the contraband substances as per Ext.P1 seizure mahazar. Subsequently, the appellant was arrested on 24.12.2005. PW8, completed the investigation and submitted the final report in the matter against the appellant and the other accused. 11. The prosecution has no case that the appellant/accused was found in possession of the contraband substance at the scene of occurrence. PW7, the detecting officer deposed in his cross-examination that the present accused was not one among the four persons who escaped from the scene of occurrence. The appellant/accused was implicated as accused on the ground that he happened to be a party in Ext.P3 agreement by which the vehicle involved was transferred to him by one Radhadevi (PW3). The accused faces a charge that attracts stringent punishment. The prosecution wants to establish the conscious possession of the contraband substance by the accused to bring home the charge against him. As the **CRL.A.No.799 of 2008** **6** prosecution has no case that he was in the actual dominion or control of the contraband substance at the scene of occurrence, the appellant cannot be fastened with the liability of carrying the contraband substance in the vehicle involved on the sole ground that, as per Ext.P3 agreement, the vehicle was transferred in his favour by PW3. On the question of possession, 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 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." **CRL.A.No.799 of 2008** **7** 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)]". ## xxxx xxxx xxxx xxxx xxxx xxxx 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”. 12. In the instant case, the prosecution failed to establish that the appellant/accused had actual control over the contraband substance allegedly recovered from the vehicle involved in this case. This Court holds that the prosecution failed to establish possession of the contraband substance by the accused. 13. Coming to the other discrepancies in the prosecution evidence, the following aspects deserve to be mentioned. **CRL.A.No.799 of 2008** **8** - (a) No specimen seal was produced by the detecting officer before the Court to ensure the genuineness of the sample produced. - (b) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. - (c) The property clerk of the Court and the Police official (P.C.7730), who handed over the samples in the laboratory were not examined to prove the tamper-proof despatch of the sample to the laboratory. 14. The sample was forwarded to the Chemical Examiner's laboratory by the jurisdictional Magistrate as per Ext.P12 dated 17.11.2005. Ext.P14 certificate of chemical analysis would show that what was analysed in the Chemical Examiner's laboratory was the sample received as per letter dated 19.11.2010. The possibility of the sample being changed could not be ruled out in this circumstance. 15. The copy of the forwarding note does not contain a legible specimen seal to facilitate the analyst to ascertain the genuineness of the sample. 16. I have carefully examined the seizure mahazar and **CRL.A.No.799 of 2008** **9** the other contemporaneous records prepared at the scene of occurrence. The nature of the seal stated to have been used by the detecting officer had not been mentioned either in the seizure mahazar or any other documents. It is further seen that the specimen of the seal had not been produced in the Court to enable the Court to satisfy the genuineness of the sample produced in the Court. As also, there is no evidence to show that a forwarding note was prepared and forwarded to the Chemical Examiner’s laboratory. 17. 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. 18. 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 the contraband reaches the laboratory is required to be established by the prosecution. 19. In _**Sasidharan v. State of Kerala (2007 (1) KLT**_ **CRL.A.No.799 of 2008** **10** _**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. Daulat 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 reemphasized 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.799 of 2008** **11** ## 20. In _**Bhaskaran v. State of Kerala (2020 KHC 5296)**_ , this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. ## 21. In _**Rajamma v. State of Kerala (2014 (1) KLT 506),**_ this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report _._ 22. 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. 23. 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. **CRL.A.No.799 of 2008** **12** 24. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellant/accused is therefore, not guilty of the offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. **Sd/K.BABU Judge** NR/25/05/2022