Baby, S/o Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944** **CRL.A NO. 1811 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 133/2008 OF ADDITIONAL SESSIONS COURT (ADHOC-III),NORTH PARAVUR.** **CP 12/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, NORTH PARAVUR. APPELLANT:** **BABY, S/O RAJAN, KAREEPARAMBU HOUSE, KIZHAKKEPRAM KARA, KOTTUVALLY VILLAGE, N. PARAVUR.** **BY ADVS. R.BINDU SASTHAMANGALAM PRASANTH M.P** **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SMT. REKHA S., SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- **CRL.A NO. 1811 OF 2008** ## **JUDGMENT** Aggrieved by the judgment dated 13.08.2008, passed by the Additional District & Sessions Judge (Adhoc-III), North Paravur in S.C.No.133/2008, the accused has preferred this appeal. The appellant was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that, on 07.10.2005 at about 1.30 p.m., the accused was found to have stored 22.500 litres of coloured illicit liquor in 15 plastic bottles of 1500 ml capacity each for the purpose of sale in his house by name Kareeparambu Veedu at Kizhakkepram kara in Kottuvally Village, Paravur Taluk in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant for the offences punishable under Sections 55(a), 55(b), 55(i) and 58 of the Abkari Act before the Jurisdictional Court. The case was committed to the Sessions Court from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence -3- ## **CRL.A NO. 1811 OF 2008** punishable under Section 58 of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P12 and MOs 1 and 2 series. 5. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. R. Bindu Sasthamangalam, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence passed against the appellant is challenged on the following grounds:- 1) The prosecution failed to establish the conscious possession of contraband substance by the accused at the -4- ## **CRL.A NO. 1811 OF 2008** the place of occurrence. 2) The prosecution also failed to show that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 8. The Excise Inspector, Varapuzha Excise Range (PW1) detected the offence. PW1 stated that on 07.01.2005, at noon, on getting reliable information that the accused had stored liquor illegally at his residence, the Excise team led by him proceeded to there. On Seeing the Excise party, some persons found there ran away from the scene. A man who was found standing in the sit out of the building was questioned. The Excise team recovered 22.50 litres of liquor in 15 plastic bottles from there. The number of building from where the recovery was effected is V/304. The prosecution has no case that the accused was in the physical possession of the liquor recovered by the Excise team. Admittedly, the accused was not in the exclusive possession of the liquor. According to the prosecution, the wife of the accused Smt. Lalitha was also found there. Ext.P11, the certificate issued by the local Grama Panchayat would show that the building in question was in -5- ## **CRL.A NO. 1811 OF 2008** the name of one Ally, wife of Rajan. The learned counsel for the appellant contended that the prosecution could not establish the conscious possession of the liquor by the accused. While considering the term 'possession' in the context of 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 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 -6- ## **CRL.A NO. 1811 OF 2008** 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 : -7- ## **CRL.A NO. 1811 OF 2008** Gunwantlal v. State of M.P in 1972 KHC 464 = 1972(2) SCC 194 Halsburys laws of England (supra)]”. 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.” 9. In the instant case, the prosecution failed to establish that the accused had actual control over the contraband substances allegedly recovered from the building No.V/304 of Koduvally Grama Panchayat. Resultantly, the prosecution failed to establish the conscious possession of the contraband substances by the accused. 10. The learned counsel for the appellant further contended that the prosecution failed to show that the liquor allegedly -8- ## **CRL.A NO. 1811 OF 2008** recovered from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. The seizure was effected on 07.10.2005. Ext.P8 list of properties shows that the properties including the sample were produced before the Court only on 10.01.2005. The delay in the production of the properties before the Court has not been satisfactorily explained by the prosecution. 11. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “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.PC 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) In Ravis' 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. -9- ## **CRL.A NO. 1811 OF 2008** 12. The properties including the sample remained in the custody of the property clerk of the Court till 15.10.2005. The sample was forwarded to the Laboratory on 15.10.2005. Sri. T.P. Paul, an Excise Guard delivered the sample in the Laboratory on 15.10.2005. The property clerk of the Court and the Excise Guard who delivered the sample in the Laboratory were not examined by the prosecution. Non-examination of those officials is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. 13. 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. 14. A legal obligation is cast on the prosecution to prove that it was 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 -10- ## **CRL.A NO. 1811 OF 2008** when the contraband reaches the laboratory is required to be established by the prosecution. 15. 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. Daulat Ram [AIR 1980 SC 1314] in Sasidharan's case (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's case (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 -11- ## **CRL.A NO. 1811 OF 2008** presumption under Section 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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 16. In the instant case, the prosecution failed to show the tamper-proof despatch of the sample from the Court to the laboratory. Therefore, Ext.P12 Certificate of Chemical Analysis has no evidentiary value. 17. Another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 15.10.2005, it was analysed only on 03.02.2007. On the question of the delay in the analysis, this Court in Krishnadas v. State of Kerala held thus:- “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.09.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.07.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, -12- ## **CRL.A NO. 1811 OF 2008** Rajeev. Though the sample was sent from the court as early as on 23.07.2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 18. In the instant case, the delay of more than a year in analysing the sample has not been explained by the prosecution. 19. The resultant conclusion is that the conviction and sentence passed by the Court below cannot be sustained. The accused is not guilty of the offence alleged. He is acquitted of the offence alleged. 20. Any amount deposited by the accused as per the directions of this Court shall be disbursed to him forthwith. The appeal is allowed as above. Sd/- **K. BABU JUDGE** bpr