David v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 20[TH] DAY OF JUNE 2022 / 30TH JYAISHTA, 1944 CRL.A NO. 1611 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 530/2007 OF ADDITIONAL SESSIONS COURT, (NDPS ACT CASES), THODUPUZHA ``` ## **`APPELLANT/ACCUSED:`** ``` DAVID, S/O JOHN, MUNDAKATTU HOUSE, VALLAKADAVU BHAGOM, ADIMALY KARA, RAJAKKADU VILLAGE. ``` ``` BY ADV SMT. S.RAJEEV ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.118 OF 2006, OF RAJAKKADU POLICE STATION). ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 20.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1611 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1611 of 2008 --------------------------------------------- Dated this the 20[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 22.07.2008, passed by the Additional Sessions Court, Thodupuzha, in Sessions Case No.530/2007, the accused has preferred this appeal. The appellant/accused 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 23.07.2006, the accused was found to have possessed 600 ml of illicit arrack kept in his house No.VIII/246 of Rajakkadu Gramapanchayat near Kallimani temple 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 trial Court. On the appearance of the accused charge was framed against him for the offence punishable under ``` Crl.A.No.1611 of 2008 ``` ``` 3 ``` 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 P12 and MOs 1 and 2. 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 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. 6. Heard Sri.S.Rajeev, 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:- (1) The prosecution failed to establish the conscious possession of the contraband substance by the accused. ``` Crl.A.No.1611 of 2008 ``` ``` 4 ``` (2) The arrest of the accused as alleged by the prosecution is doubtful. (3) The prosecution failed to establish that the liquor allegedly seized from the building in question was subjected to examination in the Chemical Examiner's Laboratory. 8. The alleged seizure was on 23.07.2006. PW3 the Sub Inspector of Police Rajakad, seized 600ml of illicit arrack from building No.VIII/246 of Rajakkadu Panchayath. The case of the prosecution is that, the detecting officer, on getting reliable information that illicit arrack was stored in the building in question, he proceeded to the building and recovered the contraband substance from one of the rooms. The defence challenges the alleged seizure on the ground that the prosecution has not succeeded in proving the accused was in the conscious possession of the contraband substance as alleged. Even according to the prosecution, the accused was not found in the physical possession of the contraband allegedly seized. It was recovered from the building referred to above. PW4, the Secretary of the local panchayath gave evidence that the building belonged to one Sri.Gopinathan. As the prosecution has not succeeded in proving that the accused had dominion and control over the ``` Crl.A.No.1611 of 2008 ``` ``` 5 ``` contraband substance seized, the possession of the contraband substance cannot be attributed against him. 9. On the question of 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 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 KLT OnLine 1112 (SC) = 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 ``` Crl.A.No.1611 of 2008 ``` ``` 6 ``` 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 KLT OnLine 1112 (SC) = 1972 KHC 464 = 1972 (2) SCC 194 Halsburys laws of England (supra)** ]. **==> picture [91 x 19] intentionally omitted <==** 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.” 10. In the instant case, the prosecution failed to establish that the accused had actual control over the contraband substance allegedly recovered from the building in question. Resultantly, the prosecution failed to establish the possession of the contraband substance by the accused. 11. The defence also challenges the arrest of the accused. It is submitted that arrest of the accused is doubtful in view of the presence of Crime Number in Ext.P9 arrest memo. Ext.P9 arrest memo contains the number of the crime registered against the ``` Crl.A.No.1611 of 2008 ``` ``` 7 ``` accused. ## 12. While dealing with a similar factual situation this Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] 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 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 (4) KLT 188 = 2020 (3) KHC 715)** ].” 13. In the absence of any explanation offered by the prosecution with regard to the presence of Crime Number in Ext.P9 arrest memo a doubt arises as to the manner in which the seizure and arrest were effected. 14. The defence also challenges the prosecution case on the ground that it failed to show that the very same contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. ``` Crl.A.No.1611 of 2008 ``` ``` 8 ``` 15. Ext.P7 property list shows that the properties including the sample reached the Court only on 25.07.2006. The prosecution has not offered any satisfactory explanation regarding the delay in production of properties before the Court. 16. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 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.” In **Ravi's 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. 17. There is no satisfactory explanation for the delay in the production of properties before the court. The unexplained delay in the production of properties would lead to the conclusion that ``` Crl.A.No.1611 of 2008 ``` ``` 9 ``` tampering with samples could not be ruled out. 18. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P12 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 25.07.2006 of the Judicial First Class Magistrate, Adimali. The sample reached the laboratory only on 26.07.2006. The police official who delivered the sample in the laboratory has not been examined as a witness. The sample also remained in the custody of the property clerk till 25.07.2006. Those two officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 19. 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. 20. 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 ``` Crl.A.No.1611 of 2008 ``` ``` 10 ``` when it reaches the laboratory is required to be established by the prosecution. 21. 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. Daulath 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 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 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 ``` Crl.A.No.1611 of 2008 ``` ``` 11 ``` **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)** . 22. In the instant case, prosecution has not succeeded in proving the genuineness of the sample produced before the Court and further that the same was despatched from the Court to the Chemical Examiner’s Laboratory for analysis. Therefore, Ext.P12 Certificate of Chemical Examination has no evidentiary value. 23. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 24. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314], **Sasidharan v. State of Kerala** [2007 (1) KHC 275]}. 25. In the instant case, the prosecution was unable to ``` Crl.A.No.1611 of 2008 ``` ``` 12 ``` establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 26. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK