Govindaraj v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945`** ## **`CRL.REV.PET NO. 1338 OF 2012`** ``` AGAINSTTHEJUDGMENTDATED19.09.2009INSC638/2007OF ASSISTANTSESSIONSCOURT,OTTAPPALAM ``` ``` CRL.APPEALNO.610/2009OFIADDITIONALSESSIONSCOURT, PALAKKAD ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` GOVINDARAJ, ``` ``` S/O.MURUKAN,H.NO.111/340,NATTUKAL,CHUNDAPETTI,PUTHUR VILLAGE,MANNARKKADTALUK. ``` ``` BYADVS. SRI.C.M.KAMMAPPU SMT.NIMAJACOB ``` ## **`RESPONDENT/STATE/COMPLAINANT:`** ``` STATEOFKERALA REP.BYPUBLICPROSECUTOR,HIGHCOURTOFKERALA. ``` ## **`SRI.RENJIT GEORGE-SR.PUBLIC PROSECUTOR`** ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLY HEARDON02.11.2023,THECOURTONTHESAMEDAYDELIVERED THEFOLLOWING: ``` Crl.R.P No.1338 of 2012 2 ## **O R D E R** This revision is at the instance of the 1st accused in S.C.No.638 of 2007 on the file of Assistant Sessions Judge, Ottappalam, assailing the judgment in Crl. Appeal No.610 of 2009 on the file of the Additional Sessions Judge-I, Palakkad, which upheld his conviction and sentence under Section 55(g) of the Abkari Act. 2. The prosecution case is that on 22.07.2004 at 06.00 p.m., the revision petitioner was found in possession of 20 litres of wash in a plastic pot in the property of his father, who was the 2nd accused in that crime. PW2-the Excise Inspector and party detected the offence. Sample of the wash was taken at the spot, and the remnants in the plastic pot was destroyed. The revision petitioner was arrested and the seized articles were sealed and labelled, and produced before the Excise Range Office and thereafter before the jurisdictional Magistrate. PW4 conducted investigation and laid charge against the revision petitioner and his father under Section 55(g) and Section 64A of the Abkari Act. 3. Before the trial court, the revision petitioner and the 2nd accused pleaded not guilty to the charge, and they claimed to be Crl.R.P No.1338 of 2012 3 tried. PWs1 to 4 were examined, Exts.P1 to P10 were marked and MO1 was identified from the side of the prosecution. The revision petitioner and the 2nd accused were questioned under Section 313 of Cr.P.C. and they denied all the incriminating circumstances brought out against them. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court acquitted the 2nd accused, and convicted the revision petitioner herein (A1) under Section 55(g) of the Abkari Act and sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1,00,000/- and in default, to undergo simple imprisonment for three months. 4. Against the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl.Appeal No.610 of 2009, and the appellate court dismissed his appeal upholding the conviction and sentence, against which, he has come up with this revision petition. 5. Now this Court is called upon to verify the legality, propriety and correctness of the judgments rendered by the courts below. 6. Heard learned counsel for the revision petitioner and Crl.R.P No.1338 of 2012 4 learned Public Prosecutor. 7. As we have seen, the case of the prosecution is that on 22.07.2004 at 06.00 p.m., PW2 and party, on getting reliable information that wash is being kept in the property of father of the revision petitioner, proceeded to that property and found the revision petitioner sitting in the plantain garden near a plastic pot which was seen dug in soil. On removing the soil, they took out the plastic pot, and found about 20 litres of wash inside and tested it by smell and taste. 500 ml sample was taken in a 750 ml bottle and it was sealed and labelled. The balance wash in the pot was destroyed, and the pot was taken into custody. The revision petitioner was arrested then and there. After complying with the legal formalities, the records, and the articles seized were produced before the Excise Range Office along with the revision petitioner, and later before the jurisdictional Magistrate. PW1, the Assistant Excise Inspector, who was in the excise party gave testimony supporting PW2. PW3- an independent witness turned hostile to the prosecution, though he admitted his signature in Ext.P1 mahazar. PW4 is the investigating officer, who questioned the witnesses and laid charge sheet against the Crl.R.P No.1338 of 2012 5 revision petitioner and his father. 8. Learned counsel for the revision petitioner contended that the revision petitioner was not in possession of the contraband and he had no connection whatsoever with the articles seized. He further argued that since the prosecution failed to prove that the property from where the contraband was seized belonged to the father of the revision petitioner, he was acquitted of the offences alleged against him. So much so, there is nothing to show any connection for the revision petitioner with the property from where the contraband was seized. Learned counsel contended that unless the prosecution is able to prove that the revision petitioner was in possession of the contraband seized, either physical or constructive, he cannot be found guilty under Section 55(g) of the Abkari Act. 9. In **Santhosh v. State of Kerala [2021 (5) KHC 214]** , this Court held that ‘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 Crl.R.P No.1338 of 2012 6 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'. 10. 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. 11. The fact that the revision petitioner was found in the plantain garden from where the contraband was seized is not sufficient to say that he was in actual or constructive possession of the contraband, especially when it was found in a plastic pot dug under the soil. It is pertinent to note that prosecution failed to establish that the property, from where the contraband was recovered belonged to the father of the revision petitioner. So no Crl.R.P No.1338 of 2012 7 connection whatsoever is established for the presence of the revision petitioner in the property from where the plastic pot containing the contraband was recovered. At this juncture it is pertinent to note that PW3-the independent witness also did not support the prosecution case. 12. On going through Ext.P1 seizure mahazar, though it is stated therein, that the specimen seal was affixed in the sample bottle, the specimen seal will not find a place in the seizure mahazar. In order to ensure transparency of the proceedings done by the detecting officer at the scene of occurrence, it is all the more necessary to affix specimen impression of the seal in the seizure mahazar also. Since there is no specimen impression of the seal in the seizure mahazar, this Court is not sure, whether the seal seen affixed on the sample bottle produced before the court was the seal affixed at the place of detection or not. 13. In **Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744]** , this Court held that when the specimen impression of the seal affixed on the seizure mahazar was not produced before the court, it was difficult to hold that the sample which reached the Chemical Examiner’s Lab was the sample Crl.R.P No.1338 of 2012 8 taken from the contraband allegedly seized from the possession of the accused. So a genuine doubt is created regarding the sample seal used by the detecting officer at the place of detection. 14. In Ext.P6 forwarding note, the space for writing the name of the Excise Guard through whom the sample bottle was sent to the Chemical Analyst is kept blank. No explanation whatsoever is offered by the investigating officer for not writing the name of the Excise Guard with whom the sample was sent to the Chemical Examiner’s Lab. 15. In **Kumaran v. State of Kerala [2016 (4) KLT 718]** , this Court held that when the space meant for writing the name of Excise Guard/Preventive Officer with whom sample was sent, is remaining vacant in copy of forwarding note, in such case, the prosecution has to examine the thondy clerk of the Court or Excise Guard concerned to prove tamper proof despatch of the sample to the laboratory. Absence of such examination, enures to the benefit of the accused 16. In the case on hand, the space for writing the name of the Excise Guard was kept vacant. Moreover the thondy clerk, or Crl.R.P No.1338 of 2012 9 the Excise Guard, who later took the sample bottle to the Chemical Examiner’s Laboratory, was not examined. So the benefit of that doubt should go to the accused. 17. Learned counsel for the revision petitioner submitted that the detecting officer ought to have produced the remnants in MO1 pot after taking the sample therefrom. The non-production of residue of wash in MO1 pot will cast serious doubt regarding the alleged seizure of 20 litres of wash. In **Narayana Velichappada v. Sub Inspector of Police [2007 (3) KLT OnLine 1103]** , this Court held that when the residue or any other material alleged to have been seized at the time of detection are not produced before court, the presumption is that the seizure was not proved. 18. For all these reasons, this Court is inclined to find that the prosecution failed to prove the guilt of the revision petitioner beyond reasonable doubt. So the judgment of the trial court as well as the appellate court, finding him guilty under Section 55(g) of the Abkari Act are liable to be set aise. In the result, the revision petitioner is found not guilty under Section 55(g) of the Abkari Act and he is acquitted Crl.R.P No.1338 of 2012 10 thereunder. His bail bond is cancelled and he is set at liberty forthwith. The revision petition stands allowed accordingly. Sd/- **SOPHY THOMAS, JUDGE** DSV/-