KUMARAN S/O NARAYANAN; PRASAD S/O KUMARAN; PRADEEP S/O KUMARAN v. STATE OF KERALA

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943 ## CRL.A NO. 1996 OF 2006 [AGAINST THE JUDGMENT DATED 11.10.2006 IN S.C.NO.428/2005 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)-II, THODUPUZHA] APPELLANTS/ACCUSED: 1 KUMARAN,S/O. NARAYANAN, AGED 1 YEARS ANIKKATTUKUDIYIL VEEDU, RAJAKUMARY KARA, RAJAKUMARY VILLAGE. 2 PRASAD S/O. KUMARAN ANIKKATTUKUDIYIL VEEDU, RAJAKUMARY KARA, RAJAKUMARY VILLAGE. 3 PRADEEP, S/O. KUMARAN ANIKKATTUKUDIYIL VEEDU, RAJAKUMARY KARA, RAJAKUMARY VILLAGE. BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.R.ANIL SRI.T.ANIL KUMAR SRI.MANU TOM SRI.SUJESH MENON V.B. SRI.THOMAS ABRAHAM NILACKAPPILLIL SRI.M.VIVEK ## RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV. SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR Crl.Appeal No.1996 of 2006 2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.02.2022, THE COURT ON 04.03.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.1996 of 2006 3 ## JUDGMENT The appellants are accused Nos. 1 to 3 in S.C.No.428/2005 on the file of the Court of Additional Sessions Judge (Adhoc)-II, Thodupuzha. The aforesaid case arises from Crime No.187/2003 of Rajakkadu Police Station which was registered against them for the offences punishable under Sections 8(1)(2) and 55(a)(b) (f)(g) and (h) of the Kerala Abkari Act. 2. The prosecution case is that, the contraband articles such as spirit, coloured spirit etc. were found hidden in a secret chamber in a poultry shed near to the residence of 1[st] accused. Accused Nos.2 and 3 who are the sons of the 1[st] accused are also residing along with him. The seizure of the aforesaid articles were made during an inspection conducted by the Sub Inspector of Police, Rajakkadu Police Station on the basis of an information received to the effect that the manufacturing of illicit liquor is taking place in the aforesaid premises. According to the prosecution, the accused numbers 1 to 3 were present in the residence at the relevant time and Crl.Appeal No.1996 of 2006 4 they were arrested on 15.9.2003 at 6 p.m. and the articles were seized. On the basis of the same, the aforesaid crime was registered and upon completing the investigation, final report was submitted before the Judicial First Class Magistrate Court, Adimaly where it was taken into file as C.P.No.90/2004. After completing the legal formalities, the matter was committed to the Sessions Court, Thodupuzha and later the same was made over to the Additional Sessions Court (Adhoc)-II, Thodupuzha where it was tried as S.C.No.428/2005. 3. In support of the prosecution case, PWs.1 to 7 were examined, Exhibits P1 to P13 were marked. Material objects MO1 to MO11 were identified. After closure of the prosecution evidence, the accused were examined under Section 313 of the Cr.PC and incriminating materials brought out during the course of trial were put to them. They denied the same. The appellant/1[st] accused stated that the shed from which the contraband articles seized is not in his possession. The 2[nd] and 3[rd] appellants/ accused Nos.2 and 3 have stated that they are not residing along with the 1[st] respondent in the Crl.Appeal No.1996 of 2006 5 house which is adjacent to the shed from which the articles were seized. In support of their contentions, DW1 was examined. 4. After examining the entire materials on record, the learned Sessions Court found that the appellants are guilty of the offences under Section 55(a)(f)(g) & (h) of the Abkari Act. Consequently, they were sentenced to undergo rigorous imprisonment for five years each and a fine of Rs.1,00,000/- each with a default sentence of rigorous imprisonment for one year for the offence punishable under Section 55(a), sentenced to undergo rigorous imprisonment for five years each and a fine of Rs.1,00,000/- each with a default sentence of rigorous imprisonment for one year for the offence punishable under Section 55(f), sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.1,00,000/- each with a default sentence of rigorous imprisonment for one year for the offence under Section 55(g) and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/- each with a default sentence of rigorous imprisonment for one year Crl.Appeal No.1996 of 2006 6 for the offence under Section 55(h) of the Abkari Act. This appeal is filed challenging the aforesaid finding of guilt and consequential conviction as well as sentence. 5. Heard Sri. B. Raman Pillai, learned Senior Counsel for the appellants and Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for the State. 6. The learned Senior Counsel contended that no materials are available to show that the shed from which the contraband articles were seized, belongs to the appellants herein. The learned Senior Counsel contends that in order to establish the offence, the prosecution has to prove the conscious possession of the accused which is not done in this case. It is also pointed out that, Ext.P2 seizure mahazar does not contain the description of the seal affixed on the sample claimed to have been collected at the time of seizure of the article. In the absence of description of the seal in Ext.P2, it cannot be concluded that, the sample which was collected as per the said seizure mahazar was Crl.Appeal No.1996 of 2006 7 subjected to chemical analysis. It was also pointed out that, there are serious discrepancies in the manner by which the arrest of the appellants was made. The specific case put forward by the learned Senior Counsel is that, the appellants were not arrested from the spot and they were later implicated in the offence. In support of the said contention, the learned Senior counsel points out that even though arrest is claimed to have been made at 6 p.m. on 15.9.2003 and the F.I.R was registered on the same day at 9 p.m., the arrest memo contains the crime number. According to the learned Senior Counsel, this would indicate that the arrest was not conducted in the manner as claimed by the prosecution. In such circumstances, he prays for allowing the appeal by acquitting the appellants. 7. On the other hand, the learned Public Prosecutor opposes the aforesaid contentions. With regard to the possession over the building, the learned Public Prosecutor would rely upon the evidence of PW5 who is the Village Officer and PW6, the Secretary of Rajakumari Grama Panchayat. It is pointed out that through the Crl.Appeal No.1996 of 2006 8 aforesaid witnesses, exhibit P7 scene plan and exhibit P8 possession certificate in respect of the property, clearly proved the location and possession of the property. It is also pointed out that Ext.P9 certificate of ownership and possession over the residential building also establishes the ownership and possession of the 1[st] appellant. On the basis of the said documents, the learned Public Prosecutor submits that, the contention of the learned counsel for the appellants regarding the possession is not sustainable. The learned Public Prosecutor also places reliance upon the evidence of PW4 and contemporaneous documents such as Exts.P1,P2,P3 and P13 in reply to the other contentions put forward by the learned Senior Counsel. According to the learned Public Prosecutor, the offence alleged against the appellants are clearly established and no interference in the judgment passed by the learned Sessions Judge is warranted. 8. The first contention put forward by the learned Senior Counsel for the appellants is relating to the possession of the shed from which contraband articles Crl.Appeal No.1996 of 2006 9 were seized. Exhibit P2 is the seizure mahazar which was prepared by PW4, the detecting officer. According to him, upon getting reliable information to the effect that manufacturing of illicit liquor is taking place in a shed belonging to the appellants, they conducted an inspection in the premises after preparing Ext.P2 search memo on 15.9.2003 at 5.30 p.m. At the time when they reached the spot, appellants 1 to 3 were present in their residence and he along with the police party searched poultry shed situating on the southern side of the house of the 1[st] accused bearing door number II/177. In the middle of the room, they found a collection of saw dust and they could find slabs beneath the saw dust. Upon removing the aforesaid slabs, they could find a concrete chamber having length of 140 cm, breadth 112cm and height 125 cm. In the said chamber, they could find out 5 cans having capacity of 35 litres each which were placed on the western side of the said chamber. On verification, it was seen that 2 cans were containing spirit. In addition to that, they also found a gunny bag containing 8 one litre bottles filled with coloured Crl.Appeal No.1996 of 2006 10 spirit. In addition to that, they also found a 5 litre can which contained brownish liquid. Certain other articles which were suspected to be implements for manufacturing illicit Indian Made Foreign Liquor were also found. Immediately, the appellants were arrested by preparing Ext.P3 arrest memo. In order to substantiate ownership and possession of shed, PW5 Village Officer was examined and through him Ext.P7 scene plan and Ext.P8 possession certificate were marked. From Ext.P8 possession certificate, it could be seen that, the property wherein aforesaid shed is situated is belonging to A1. Similarly, Ext.P9 is the certificate of ownership and possession issued by the Secretary of Rajakumary Grama Panchayat indicating that the residential building which is mentioned in Ext.P2 mahazar is belonging to the 1[st] appellant. PW6 is the person who issued Ext.P9 and according to him, the shed which is situated adjacent to the residential building is also belonging to the 1[st] accused. The learned counsel for the appellants placed reliance upon the evidence of DW1 who had stated that the shed belonging to one Murukan hailing from Tamilnadu Crl.Appeal No.1996 of 2006 11 where he is conducting poultry shed. It is also stated by him that, there is a natural boundary between the residence of the 1[st] appellant and the shed, made up of trees. However, when we examine the entire evidence, it can be seen that the deposition of DW1 is not believable. It is true that, PWs.1 to 3 who were examined to prove the arrest and seizure of the article have also stated that, the aforesaid shed belonging to one Murukan. PWs.1 to 3 turned hostile to the prosecution and they denied their signature in the mahazar as well as arrest memo. However, the fact that the property wherein the shed was situated belongs to the 1[st] appellant is evident from the deposition of PWs. 5 and 6 which are supported by the documents such as Exts.P7 to P9. The aforesaid witnesses are official witnesses and the documents produced by them are also based on the records maintained by them in their official capacity. The aforesaid documents would indicate that, the possession of the shed in which articles were found was under the ownership of the 1[st] appellant. The learned Senior Counsel places reliance Crl.Appeal No.1996 of 2006 12 upon the judgments rendered by this Court in Rajappan V.P. v. State of Kerala [2015(5) KHC 895] and Sambasivan v. State of Kerala [2007(1)KHC 462] . In the aforesaid decisions, this Court categorically held that the prosecution has an obligation to prove that the accused was in conscious possession of the contraband articles seized and was having dominion thereof. In this case, on examining the materials, I am of the view that, the evidence available on record is sufficient to hold that the shed from which the articles were seized was under the ownership and possession of the 1[st] appellant. 9. However, merely because of the reason that, the prosecution was able to prove the ownership, it cannot be concluded that the articles seized from the shed were in conscious possession of the accused persons. The prosecution has an obligation to show that the accused were having dominion over the contraband articles seized. In this case, as regards 2[nd] and 3[rd] appellants are concerned, there is no evidence available on record indicating that they were having any dominion over the contraband articles seized. The only evidence available Crl.Appeal No.1996 of 2006 13 is that the shed from which the articles were seized were belonging to the 1[st] appellant. It is true that, appellant Nos.2 and 3 are the sons of the 1[st] appellant and the prosecution has a case that all of them were residing in the residential building adjacent to the shed from which the articles were seized. However, in my view merely because of that reason, conscious possession over the articles by the 2[nd] and 3[rd] accused cannot be inferred. The prosecution has to adduce some positive evidence in this regard which is lacking in this case. In Rajappan's case this Court has specifically observed that in the absence of materials indicating the dominion over the contraband article, conscious possession over the said articles cannot be established. In such circumstances, the benefit of doubt is to be granted to the appellants 2 and 3 herein. 10. Another contention put forward by the learned Senior counsel for the appellants is relating to the discrepancies contained in the arrest. It is pointed out that in Ext.P3 arrest memo, the time and date of arrest is mentioned as 6 p.m. and 15.9.2003 respectively. It is Crl.Appeal No.1996 of 2006 14 evident from Ext.P4 FIR that, the case was registered at 9 p.m. on the same day. The evidence of PW4 indicates that accused persons were arrested from the spot at 6.15 p.m. and Ext.P3 arrest memo was prepared at that time. However, a perusal of Ext.P3 shows that the crime number which is registered only at 9 p.m. is seen mentioned therein. According to the learned Senior counsel for the appellants, this casts a serious shadow of doubt on the prosecution case. In Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and Another [2020(3)KHC 715] , this Court considered the said issue and observed as follows: _“21. Presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution (See Zofar v. State (2000 KHC 2209 : 2000 CriLJ 1589), Kailash @ Kuddu v. State (2000 KHC 2334 : 2000 CriLJ 2134) and Karunakar Bindhani v. State of Kerala (2016 KHC 758 : 2017 (1) KLD 48)). When it is alleged by the prosecution that the seizure was_ Crl.Appeal No.1996 of 2006 15 _effected and the accused was arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution (See Shyam Bharia v. State of Madhya Pradesh (2005 KHC 2690 : 2005 CriLJ 1907)). It creates doubt as to the manner in which seizure of the contraband substance and the arrest of the accused were effected by the police officers (See K. Kalyani v. State(MANU / TN / 1070/2019)).”_ It is also a relevant factor to notice that the appellants have a specific case that the arrest of 2[nd] and 3[rd] accused were not made from the spot of accident. The cross-examination of PW4 made by the accused indicate that the specific questions with regard to the aforesaid anomaly were put to him. However, no proper explanation could be offered by PW4 with regard to the inclusion of crime number in Ext.P3 arrest memo. In such circumstances, the aforesaid aspect is a serious lacuna in the prosecution case and it creates shadow of doubt which goes to the benefit of the appellants herein. 11. Another contention put forward by the learned Senior Counsel is relating to the non mentioning of the description of the seal affixed on the sample bottle, in Crl.Appeal No.1996 of 2006 16 Ext.P2 seizure mahazar. According to the learned Senior Counsel, the prosecution has an obligation to establish that the sample which was subjected to the chemical analysis was drawn from the liquor seized from the possession of the appellants. Merely because of the reason that chemical analysis report indicates the presence of alcohol in the articles, the accused cannot be held guilty of the offences unless the relationship of the said sample is established with the liquor seized from the possession of the appellants. The aforesaid question was considered in Moothedath Sivadasan and Another v. State of Kerala [2021 KHC 3232] . 12. In this case, Ext.P2 mahazar does not contain any description as to the seal affixed on the sample and the evidence of PW4 also does not contain the same. In the absence of such description, it cannot be concluded that, it was the sample drawn from the liquid allegedly found in possession of the appellants, which was subjected to chemical analysis. 13. Thus when we consider all the above aspects, the only conclusion possible is that the prosecution failed Crl.Appeal No.1996 of 2006 17 to establish the guilt of the accused by adducing proper evidence as required. 14. In such circumstances, the benefit of doubt arises on account of the lacuna in the prosecution as mentioned above and it should go in favour of the appellants. Accordingly I allow this appeal and the judgment dated 11.10.2006 in S.C.No.428 of 2005 passed by the Additional Sessions Judge (Adhoc)-II, Thodupuzha is hereby set aside. The appellants are found not guilty of any of the offences alleged against them and they are acquitted from all the charges. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk