Kunjumon s/o Madhavan v. The State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944 CRL.A NO. 711 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 183/2001 OF ADDITIONAL DISTRICT** ## **COURT-I,MAVELIKKARA** ## **APPELLANT/ACCUSED:** KUNJUMON S/O.MADHAVAN, PADINJARE THOPPIL VEEDU,, PERUMBALLY MURI, ARATTUPUZHA VILLAGE,, KARTHIKAPPALLY TALUK. BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU ## **RESPONDENT/COMPLAINANT:** THE STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. SMT. REKHA.S (SR.P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No. 711 of 2007 2 ## **K.BABU, J** . -------------------------------------- Criminal Appeal No.711 of 2007 --------------------------------------Dated this the 25[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 23.03.2007, in S.C.No.183/2001, passed by the Additional Sessions Court-I Mavelikara, the accused has preferred this appeal. 2. The trial Court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act and was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1,00,000/-. 3. The prosecution case is that on 01.06.1999 at about 8.p.m the accused was found in possession of 2 litres of arrack in a can kept in one of the bedrooms of the house bearing No.VII/493 of Arattupuzha Panchayath in Arattupuzha Village. 4. After completing the investigation, final report Crl.A No. 711 of 2007 3 was submitted against the accused for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act before the Judicial First Class Magistrate Court-I, Harippad. The case was committed to the Sessions Court, Alappuzha from where it was made over to the trial Court. On the appearance of the accused charges were framed against him for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences. 5. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P12 and MO1. 6. 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 4 Crl.A No. 711 of 2007 evidence, if any, he may have in support thereof. Exts.D1 and D2 were marked on the side of the defence. The trial Court, after hearing the arguments addressed from both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.100,000/- under Section 8(2) of the Abkari Act. The accused was acquitted of the offence under Section 55(a) of the Abkari Act. 7. Heard Smt.S.Indhu, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 8. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds: 1. The prosecution failed to establish that the contraband substance allegedly recovered from the residence was in the actual dominion and control of 5 Crl.A No. 711 of 2007 the appellant/accused. 2. The prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. 9. The case of the prosecution is that 2 litres of illicit arrack was seized from the building bearing No.VII/493 , Arattupuzha Panchayath. The offence was detected by the Circle Inspector of Excise, Excise Enforcement and Anti-Narcotic Special Squad, Alappuzha (PW4). According to PW4, the contraband substance was seized from a bedroom of building No.VII/493. He has no case that contraband substance was in the physical possession of the accused. Ext.P3, the ownership certificate issued by the Secretary, Arattupuzha Grama Panchayath shows that the building in question belongs to Madhavi, Padinjarethoppil who is the mother of the accused. The accused faces a charge that attracts stringent punishment. To bring home the charge, the 6 Crl.A No. 711 of 2007 prosecution has to establish the conscious possession of the contraband substance by the accused. On the question of possession of contraband substance in the context of the 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 Crl.A No. 711 of 2007 7 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 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. Such 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)]”. ------------------- 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 Crl.A No. 711 of 2007 8 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. Admittedly, the building is not in the exclusive possession of the accused. Along with the accused, his mother and wife are also residing in the building. In the absence of any convincing evidence to show that the accused had actual dominion and control over the contraband substance seized, this Court has to necessarily conclude that the prosecution failed to establish the possession of the contraband substance to attract the offence alleged. The prosecution must fail on this ground alone. 11. The learned counsel for the appellant further 9 Crl.A No. 711 of 2007 submitted that the prosecution has not succeeded in establishing that the contraband seized from place of occurrence eventually reached the hands of the analyst in a tamper-proof condition. She relied on the following circumstances to substantiate her contention. a) The nature and description of the seal stated to have been affixed on the sample have not been narrated in Ext.P1 seizure mahazar. b) Ext.P11 forwarding note does not contain a legible specimen seal. c) The property clerk of the Court and the Excise Guard who delivered the sample in the laboratory were not examined. d) Ext.P11 does not contain the name of the person with whom the sample was forwarded to the laboratory. 12. 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 Crl.A No. 711 of 2007 10 at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 13. 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 when the contraband reaches the laboratory is required to be established by the prosecution. 14. 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. Daulath Ram** : (1980 KLT OnLine 1025 (SC) : AIR 1980 SC 1314) in **Sasidharan** (supra) this Court held that where sample changed several hands before reaching the Crl.A No. 711 of 2007 11 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 :** (2017 (1) KLT SN 6 (C. No. 7) : 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 **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). Crl.A No. 711 of 2007 12 15. In **Bhaskaran v. State of Kerala** : (2019 (3) KLT SN 34 (C. No.49) : 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 genuineness of the sample produced in the court. 16. In the instant case, this Court noticed the following loopholes in the prosecution evidence:- a) The nature and description of the seal stated to have been affixed on the bottle containing the sample have not been narrated in the seizure mahazar. b) The detecting officer has not given evidence as to the nature of the seal used. c) The sample remained in the custody of the property clerk of the Court, the official who received the sample from the Court and Sri.Soman Pillai, the Excise Guard, who delivered the sample in the laboratory. None of these officials were examined by the prosecution Crl.A No. 711 of 2007 13 to rule out the possibility of the sample being changed or tampered with. 17. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellant/accused is, therefore, not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE rpk