Baiju v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 331/2008 OF IVTH ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, THODUPUZHA AGAINST THE ORDER/JUDGMENT IN SC 329/2006 OF ASSISTANT SESSIONS ``` ## **`COURT,THODUPUZHA`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ## **`BAIJU`** ``` MANIMALAYIL HOUSE, VAZHATHOPPE KARA, IDUKKI VILLAGE, IDUKKI DISTRICT. BY ADV SRI.GEORGEKUTTY MATHEW ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ## **`SR.P.P.-SHRI RENJIT GEORGE`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ``` ``` ON 21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 2 ``` ## **ORDER** This revision is at the instance of the 4[th] accused in S.C. No.329 of 2006 on the file of Assistant Sessions Judge, Thodupuzha, assailing the judgment in Crl.Appeal No.331 of 2008 on the file of IV[th] Additional District and Sessions Judge (Adhoc-II), Thodupuzha, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 19.05.2005 at 5.20 p.m., the revision petitioner along with accused Nos.1 to 3 were found possessing and transporting 3 litres of illicit arrack in 5 bottles, in an autorickshaw bearing Registration No.KL 6C 887 driven by the revision petitioner, through Thoppramkudy-Murickassery road in Vathikudy Village. PW3the detecting officer intercepted the autorickshaw, seized the contraband and arrested the accused persons. Crime was registered against them, and on completing the investigation, PW4 laid charge sheet against the accused persons under Sections 8(1) and 8(2) of the Abkari Act. ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 3 ``` 3. On appearance of the accused persons before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, read over and explained, to which, they pleaded not guilty and claimed to be tried. PWs.1 to 5 were examined, Exts.P1 to P7 were marked and MOs.1 to 5 were identified from the side of prosecution, to prove its case. 4. On closure of prosecution evidence, the accused persons were questioned under Section 313 of Cr.P.C. They denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 5. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioner (A4) guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was sentenced to undergo simple imprisonment for a period of one year and fine of Rs.1 lakh, and in default to undergo simple imprisonment for a further period of three months. Accused Nos.1 to 3 were found not guilty and they were acquitted. ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 4 ``` 6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner (A4) preferred Crl.Appeal No.331 of 2008. The appellate court, on re-appreciating the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and hence the appeal was dismissed, against which he has preferred this revision petition. 7. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent findings of the trial court as well as the appellate court, convicting and sentencing the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 8. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 9. Learned counsel for the revision petitioner is assailing the judgment, mainly on the ground that, the revision petitioner had no connection, whatsoever with the contraband seized, and he was only an auto driver, whose ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 5 ``` autorickshaw was hired by accused Nos.1 to 3. If at all, the cardboard box, in which the contraband was found, was kept under the driver seat, he was not aware of the contents of that packet, which was kept by the passengers, as there was no space for them to keep that packet in the passengers’ seat. Learned counsel for the revision petitioner drew the attention of this Court to Ext.P1 seizure mahazar, which shows that, the box containing arrack was brought by the 1[st] accused, in connection with his house warming ceremony. PW3-the detecting officer, also admitted during cross examination, that, accused Nos.1 to 3 had hired the autorickshaw of the revision petitioner (A4). Moreover, 1[st] accused had admitted before him that, he was bringing the arrack in connection with his house warming ceremony at Vazhathope. 10. The testimony of PW3 was sufficient enough to show that, the revision petitioner was only the driver of the autorickshaw, which was hired by accused Nos.1 to 3, and there was clear admission from the part of the 1[st] accused ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 6 ``` that, the contraband was brought by him for the purpose of his house warming ceremony at Vazhathope. So, there was no reason for PW3 to implicate the revision petitioner in a case registered under Sections 8(1) and 8(2) of the Abkari Act. The trial court also found that, there was no evidence to connect the revision petitioner (A4) with accused Nos.1 to 3 except the fact that, he was the driver of the autorickshaw in which accused Nos.1 to 3 were travelling. There was nothing to show any kind of acquaintance for the revision petitioner (A4) with accused Nos.1 to 3. But, for the simple reason, that the cardboard box containing the bottles of arrack was kept beneath the driver seat, the trial court convicted him. The reasoning given by the trial court is that, the space beneath the driver seat was not accessible to the passengers travelling in the back seat. 11. While examining the revision petitioner under Section 313 of Cr.P.C., he stated that, his autorickshaw was hired by accused Nos.1 to 3, on the date of incident, and when ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 7 ``` they boarded the autorickshaw, the 1[st] accused was having a cardboard box with him. Since one LPG cylinder was kept behind the passenger seat, A1, could not keep his cardboard box there, and so, he placed it beneath the driver’s seat where free space was available. When the revision petitioner asked him about the contents of that packet, he told him that, it contained some household utensils purchased for his new house at Vazhathope. Ext.P1 seizure mahazar also shows that, behind the passenger seat of the autorickshaw, one LPG Cylinder was seen. So, it substantiates the case of the revision petitioner that, since there was no space behind the passenger's seat, the 1[st] accused kept his cardboard box beneath the driver's seat where free space was available. 12. In paragraph 16 of the judgment, the learned trial court has stated that, though the allegation of the prosecution was that, the contraband articles were for the use of the 1[st] accused in connection with his house warming ceremony, there was absolutely no evidence in this regard. But learned ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 8 ``` trial court ignored the rudimentary principle of law of evidence that admitted facts need not be proved. When the prosecution categorically admitted the fact that, the cardboard box containing arrack belonged to the 1[st] accused, and it was taken by him in connection with his house warming ceremony, in the autorickshaw driven by the revision petitioner, the court need not search for any other evidence to substantiate that fact. There was ample evidence to suggest that, the revision petitioner had no conscious possession of the contraband, though the packet containing the contraband was found beneath the driver's seat. The revision petitioner has vividly explained the circumstance under which the cardboard box was put under the driver's seat. The prosecution failed to establish any connection, whatsoever between the revision petitioner and the contraband seized. Since accused Nos.1 to 3 were only passengers in that autorickshaw, and they had no acquaintance with the revision petitioner, we cannot say that, the revision petitioner conspired along with accused Nos.1 to 3 ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 9 ``` for transporting illicit liquor in his autorickshaw. 13. In **Ravi C. v. State of Kerala** [2011 (3) KHC 427], this Court held that, simply because an article is found kept or stored in a building or house, the owner or occupier of such building cannot be said to have ‘stored’ the article, nor can it be said that he is in ‘possession’ of such article. Even if owner or occupier of the house was present in the house at the time of seizure, he cannot be presumed to be in possession of the article, or stored the same. Paragraphs 22 to 25 of that judgment read thus: “22. Thus, it will be clear that only because an article is found kept or stored in a building or house, the owner or occupier of such building cannot be said to have ‘stored’ the article, nor can it be said that he is in ‘possession’ of such article. There is also no presumption either on facts or in law that an article which is seen kept or stored in a building or house is ‘stored’ or ‘possessed’ by the owner or occupier of the building. Even if owner or occupier of the house was present in the house at the time of seizure, he cannot be presumed to be in possession of the article or stored the same. 23. The Supreme Court in Ismailkhan Aiyubkhan Pathan v. State of Gujarat, 2000 KHC 1611 : (2000) 10 SCC 257 held ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 10 ``` thus: ‘There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under S.114 of the Evidence Act merely because these persons were present when PW 7 went there’. 24. Thus, the question whether a person ‘stored’ the article which is found kept in his house, or whether he is in ‘possession’ of such article does not depend merely on ownership or possession of the house. An owner or occupier of the building or house cannot be held liable for ‘storing’ or for ‘possession’ of such article, for the sole reason that he is the owner or occupier of the building or house. 25. The person who ‘stores’ an article in a building or house need not be in ‘possession’ of the same. Like wise, the person who is in ‘possession’ of an article might not have ‘stored’ it in the building. Therefore, ‘possession’ does not follow ‘storage’ nor does ‘storage’ follows ‘possession’. ‘Possession’ and ‘storing’ connote different things. The facts to be proved to constitute ‘possession’ and ‘storing’ are different. ‘Possession’ as well as ‘storing’ of arrack are prohibited under the Act. Illegal possession and storing of arrack constitute independent offences under S.8(2) of the Act and each such act calls for separate punishments also.” 14. In the case on hand, even if the packet containing the contraband articles was found beneath the driver's seat, when ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 11 ``` there was sufficient evidence to show that, the packet was kept there by the 1[st] accused, and the revision petitioner had no information or knowledge about the contents of the packet, then it cannot be said that, he was in possession of that contraband. Though the autorickshaw belonged to him, and he was driving the same, unless he was in conscious possession of the contraband, it cannot be said that he was possessing or transporting the contraband. 15. In **Gunwantlal v. The State of M.P.** [1972 KHC 464] the Apex Court held that, ‘Possession’ does not mean only physical or actual possession but includes constructive possession. If there is any disputed question of possession, specific facts admitted or proved will alone establish the existence of the dominion of the person over it, necessary to determine whether that person was or was not in possession of the thing in question. 16. Paragraph 5 of the decision **Gunwantlal** [1972 KHC 464] reads thus; ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 12 ``` “ 5. What is meant by possession in the context of this section? Is it that the person charged should be shown to be in physical possession or is it sufficient for the purposes of that provision that he has constructive possession of any firearm or ammunition in contravention of Section 3 which prohibits him to be in such possession without a licence. It may be mentioned that under Section 19 of the Arms Act, 1878, an offence corresponding to Section 25(1)(a) is committed if a person had in his or under his control any arms or ammunition in contravention of Sections 14 and 15 of that Act. The word "control" under Section 25(1)(a) has been omitted. Does this deletion amount to the Legislature confining the offence only to the case of a person who has physical possession or does it mean that a person will be considered to be in possession of a firearm over which he has constructive possession or over which he exercises the power to obtain possession thereof when he so intends? If the meaning to be given to the word "possession is that it should be a physical possession only, then certainly the charge as framed on the facts of the prosecution case will not be sustainable but if the meaning to be given to the word "possession" is wider than that of actual or physical possession then it is possible, if the evidence produced by the prosecution is such as would sustain a finding, that he had constructive possession on September 17, 1966, when he handed it over to Miroo and Miroo handed it over to Chhaganlal because if it was not seized from Chhaganlal, the appellant could have at any time got back the physical ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 13 ``` possession of the revolver through Miroo. The possession of a firearm under the Arms Act in our view must have, firstly the element of consciousness or knowledge of that possession in the person charged with such offence and secondly where he has not the actual physical possession, he has nonetheless a power or control over that weapon so that his possession thereon continues despite physical possession being in someone else. If this were not so, then an owner of a house who leaves an unlicensed gun in that house but is not present when it was recovered by the police can plead that he was not in possession of it even though he had himself consciously kept it there when he went out. Similary, if he goes out of the house during the day and in the meantime some one conceals a pistol in his house and during his absence, the police arrives and discovers the pistol, he cannot be charged with the offence unless it can be shown that he had knowledge of the weapon being placed in his house. And yet again if a gun or firearm is given to his servant in the house to clean it, though the physical possession is with him nonetheless possession of it will be that of the owner. The concept of possession is not easy to comprehend as writers of Jurisprudence have had occasions to point out. In some cases under Section 19(1) (f) of the Arms Act, 1878 it has been held that the word "possession" means exclusive possession and the word "control" means effective control but this does not solve the problem. As we said earlier, the first precondition for an offence under Section 25(1)(a) is the element of intention, consciousness ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 14 ``` or knowledge with which a person possessed the firearm before it can be said to constitute an offence and secondly that possession need not be physical possession but can be constructive, having power and control over the gun, while the person to whom physical possession is given holds it subject to that power and control. In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. In this view it is difficult at this stage to postulate as to what the evidence will be and we do not therefore venture to speculate thereon. In the view we have taken, if the possession of the appellant includes the constructive possession of the firearm in question then even though he had parted with physical possession on the date when it was recovered, he will nonetheless be deemed to be in possession of that firearm. If so, the charge that he was in possession of the revolver on September 17, 1966, does not suffer from any defect particularly when he is definitely informed in that charge that he had control over that revolver. It is also apparent that the words "on or before" were intended to bring home to the accused that he was not only in constructive possession of it on September 17, 1966, but that he was in actual physical possession of it prior to that date when he gave it to Miroo. It is submitted, however, that the word "on or before" might cause embarrassment and prejudice to the defence of the accused because he will ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 15 ``` not be in a position to know what the prosecution actually intends to allege. From a reference of Form XXVIII of Schedule 5 of the Code of Criminal Procedure, the mode of charging a person is that he "on or about”... did the act complained of. In view of the forms of the charge given in the Schedule to the Code, we think that it would be fair to the appellant if the charge is amended to read 'on or about' instead of on or before which we accordingly order.” ## 17. In **Santhosh v. State of Kerala** [2021 (5) KHC 214], this Court held that, unless the person who is said to be in possession of an article is not having dominion or control over it, even if he is in physical possession of the same, that possession will not become constructive possession. ## 18. Paragraph 23 of the decision **Santhosh** [2021 (5) KHC 214] reads thus; “ 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 ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 16 ``` control or dominion over such property. Such 2021:KER:29865 Crl.A No.2182 of 2006 11 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)] ”. 19. The facts on hand when tested in the touchstone of the dictum laid down in the decisions cited supra do not reveal either possession or transport of the contraband by the revision petitioner. 20. Another point is that, PW3, who was the detecting officer himself conducted the investigation, which, according to the revision petitioner, caused serious prejudice to him. When the detecting officer himself becomes the investigating officer, he would be interested in the outcome also, and so, if the revision petitioner says that, PW3 was biased, one cannot refute the same. PW4, who laid the charge sheet, did nothing towards investigation, except collecting the chemical examiner’s report. So, the factum of prejudice alleged by the revision petitioner cannot be ignored in toto. 21. On an overall analysis, it has to be held that without ``` CRL.REV.PET NO. 4058 OF 2009 ``` ``` 17 ``` noticing the aforementioned material aspects, the courts below convicted and sentenced the revision petitioner. Hence the impugned judgments are hereby set aside. 22. In the result, the revision petitioner is found not guilty of the offences alleged under Sections 8(1) and 8(2) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. **Sd/-** **SOPHY THOMAS JUDGE** LU