Benny v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 3[RD] DAY OF JUNE 2022 / 13TH JYAISHTA, 1944 CRL.A NO. 740 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 92/2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA ``` ## **`APPELLANT/ACCUSED:`** ``` BENNY, S/O. VARGHESE, PUTHENPURACKAL HOUSE, MANIYARANKUDY KARA, IDUKKI VILLAGE BY ADV BABU S. NAIR ``` ## **`RESPONDENT/STATE:`** ``` THE STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE IDUKKI-, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT, OF KERALA, ERNAKULAM, KOCHI-31 ``` ``` BY PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ## **`OTHER PRESENT:`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 740 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** ## **JUDGMENT** Aggrieved by the judgment dated 19.03.2008, passed by the Additional Sessions Court [Adhoc -II], Thodupuzha in Sessions Case No. 92/2007, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 17.08.2005 at 08.15 pm, the accused was found in possession of 500 ml of arrack at his house at Perumkala in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the ``` CRL.A NO. 740 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** trial court. On the appearance of the accused charge was framed against him for the offence punishable under Section 8(2) 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 5 and proved Exts. P1 to P8 and MOs 1 to 6. 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. 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 to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo ``` CRL.A NO. 740 OF 2008 ``` ..4.. rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh under Section 8(2) of the Abkari Act. 6. Heard Sri. Babu S. Nair, the learned counsel 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:- - (i)Arrest of the accused from the place of occurrence as alleged is doubtful in view of the presence of the crime No. in Ext.P2 arrest memo. - (ii)The prosecution failed to establish conscious possession of the contraband substance by the accused. - (iii)The prosecution failed to establish the tamperproof despatch of the sample to the laboratory ``` CRL.A NO. 740 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** from the Court. 8. The Sub Inspector of Police, idukki Police Station, (PW4), on 17.08.2005 detected the offence. According to PW4, on getting reliable information that illicit arrack was stored in the residence of the accused, he proceeded to there. PW4 searched the residence of the accused and found 500 ml of arrack from one of the rooms of the residence. The accused was arrested from the place of occurrence. The learned counsel for the appellant/accused disputed the arrest of the accused on the ground that Ext.P4 arrest memo contains the number of the crime registered against the accused. 9. This Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] had an opportunity consider a similar fact situation. In **Santhosh** (supra) this Court held thus: “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband ``` CRL.A NO. 740 OF 2008 ``` ..6.. substance or the number of the first information report was inserted in the arrest memo after its registration. 15.In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758: 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020(3) KHC 715)].” 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P4 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. The learned counsel for the appellant further contended that the prosecution failed to establish the conscious possession of the contraband substance by the ``` CRL.A NO. 740 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** accused. 12. The prosecution has no case that the accused had actual control over the liquor allegedly seized from the residence. According to the learned counsel for the appellant, possession of the contraband substance was fastened on the accused on the ground that he was the owner of the house from where the recovery was effected. The prosecution relied on the oral evidence of PW3, the Secretary of the Vazhathop Grama Panchayat to contend that the accused was in possession of the contraband. 13. Admittedly, the accused alone was not residing in the building. It was occupied by the wife of the accused also. The oral evidence of PW1 shows that the wife of the accused was also residing in the building in question. In order to establish possession, the prosecution has to prove that the accused had dominion or control over the article seized. While considering the meaning of the word “possession” in the context of the Abkari Act, ``` CRL.A NO. 740 OF 2008 ``` ..8.. ## this Court in **Santhosh v. State of Kerala** held thus:- “20. The word 'possession' is not defined in the Abkari Act.The Halsbury's Laws of England, (5 th 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 ``` CRL.A NO. 740 OF 2008 ``` ..9.. 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. Suchpossession 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)]”. ## XXXXXXX 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. ``` CRL.A NO. 740 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** Hence the prosecution has to establish the conscious possession of the contraband substance by the accused to attract the offence alleged. 14. In the instant case the prosecution failed to establish that the accused had actual control over the contraband substance allegedly recovered from the residence of the accused. Therefore, the prosecution failed to establish the conscious possession of the contraband substance. 15. The prosecution also failed to establish the tamper-proof despatch of the sample to the laboratory. The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample in any of contemporaneous records prepared at the scene of occurrence. He has also failed to give evidence regarding the nature and description of the seal used. The specimen of the seal found in Ext.P7 is not at all legible. There is nothing to show that a legible specimen of the seal, sufficient to ``` CRL.A NO. 740 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** ascertain the genuineness of the articles including the sample, was produced before the Court and forwarded to the Chemical Examiner’s Laboratory. The bottle containing the sample remained in the custody of the property clerk of the court and the police official who delivered the same in the laboratory. Those witnesses were not examined by the prosecution to establish the tamper-proof despatch of the sample from the court to the laboratory. `16` . 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. 17. 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 ``` CRL.A NO. 740 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** reached the Chemical Examiner's laboratory in a tamperproof 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. 18. 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 tamperproof 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 ``` CRL.A NO. 740 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 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 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** (supra) and **Sathi** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala** [2011 (3) KLT 353] **.** 19. 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 ``` CRL.A NO. 740 OF 2008 ``` ..14.. genuineness of the sample produced in the court. 20. 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. 21. The prosecution failed to prove that the sample drawn from the place of occurrence was eventually sent to the Chemical Examiner's Laboratory for analysis. In the absence of any such proof, the Ext.P8 certificate of chemical analysis has no evidentiary value. 22. Yet another aspect that requires consideration is the delay in the analysis of the sample. The sample reached the laboratory on 24.08.2005. It was subjected to analysis only on 08.11.2006. On the question of delay ``` CRL.A NO. 740 OF 2008 ``` ..15.. in the analysis of the sample, in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held thus: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. 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 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, 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.” 23. In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. 24. The upshot of the above discussion is that the conviction entered by the court below overlooking these ``` CRL.A NO. 740 OF 2008 ``` ..16.. vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore found not guilty of the offence punishable under Section 55(a) of the Abkari Act. In the result, - (i) the Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the charge ; (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj