Kuttan Nadar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 CRL.A NO. 1515 OF 2008** **AGAINST THE JUDGMENT DATED 5.7.2008 IN SC 350/2005 OF ADDITIONAL** **DISTRICT COURT (ADHOC), TRIVANDRUM** **CP 70/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,ATTINGAL APPELLANT/ACCUSED:** ## **KUTTAN NADAR** **MANGALASSERY VEEDU, KEEZHALKONAM, NELLANADU, VILLAGE.** **BY ADVS. SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA PUBLIC PROSECUTOR AT HIGH COURT OF KERALA.** **BY ADV PUBLIC PROSECUTOR** **SMT. REKHA.S (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1515 of 2008 2 ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1515 of 2008 --------------------------------------------- Dated this the 10[th] day of November, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 05.07.2008, passed by the Additional Sessions Court (Fast Track Court-I), Thiruvananthapuram, in Sessions Case No.350/2005, 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 two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 07.03.2002 at 11.30 am., in his house bearing No. NP II/201 in Nellanad Village, the accused was found in possession of 60 litres of wash in seven plastic pots and 2 ½ litres of arrack in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55 (g) 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 Crl.A No.1515 of 2008 3 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 6 and proved Exts.P1 to P8 and MO 1 series, MOs 2 to 7. Exts.X1 to X3 were marked as Court Exhibits. 5. After the closure of the evidence on behalf of the prosecution, 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. Ext.D1 was marked on the side of the defence. 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.Shinod G.P, 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:- Crl.A No.1515 of 2008 4 (1) The prosecution failed to establish the conscious possession of the contraband substance by the accused. (2) The procedure in which sample was drawn by the property clerk of the Court has no sanction of law. 8. PW3 is the detecting officer. On 07.03.2002 he searched a building No. NP II/201 and detected the contraband substance and the other properties involved in this case. According to PW3 the appellant/accused is the owner of the residence from where the properties were recovered. At the time of search the accused was not there. No other members in his family were also present. The prosecution relied on Ext.P1, a certificate of ownership issued from the Nellanad Grama Panchayath to establish that the building No.NP VI/451 belonged to the accused. Admittedly in addition to the accused, other members of his family were also residing there. Exhibit D1, the Copy of Ration Card issued in favour of the accused shows that in the building No. 191 three more persons were also residing along with the accused. 9. In order to establish possession of the contraband substance and the other implements allegedly used for manufacturing arrack, the prosecution has to establish that the Crl.A No.1515 of 2008 5 accused had exclusive possession, dominion control over the contraband substance. 10. On the question of possession in the context of Abkari Act, this Court in **Santhosh v. State of Kerala** [2021 (4) KLT ## OnLine 1150] 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 the contraband article by accused. A person may have dominion Crl.A No.1515 of 2008 6 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 20] 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.” 11. In view of the fact that the building from where the articles were seized was in the possession of the other members of the family of the appellant also, it is to be concluded that the prosecution failed to establish the conscious exclusive possession of the contraband substance by the accused. 12. It is further contended that drawing of sample by the property clerk of the Court has no sanction of law. PW6, the property clerk of the Court stated that she had drawn the sample from the bulk quantity of the arrack and wash produced before Court and forwarded the same to the laboratory for analysis. Crl.A No.1515 of 2008 7 13. Drawing sample and sealing the same are acts within the exclusive province of the the Police or the Excise officials concerned. This Court in **Baburaj v. State of Kerala [2021 (6) KLT 416]** had considered the legality of the act in which the property clerk of the Court collected sample and sent for analysis. In **Baburaj** ## **(supra)** this Court held thus:- “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the Drawing sample and sealing the same are acts within the exclusive province of the the Police officials or the Excise officials concerned. The act by which the Property Clerk of the Court had drawn the sample is under vehement challenge. This Court had an opportunity to consider the sanctity of the act of the Magistrate taking the sample from act of taking the sample from the contraband himself is irreconcilable. The water- tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala (2019 (2) KLT 974)** , wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In **Baby v. State of Kerala (2020 (2) KLT 590)** , this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is Crl.A No.1515 of 2008 8 that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” 14. In **Baburaj v. State of Kerala (Supra)** , this Court further held that as the procedure adopted in drawing the sample from the contraband substance has no sanction of law, no evidentiary value can be given to the Certificate of Chemical Analysis obtained based on the sample so drawn. 15. In the instant case, the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext. P7 Certificate of Chemical analysis has no evidentiary value. 16. Yet another aspect that affects the credibility of Ext. P7 Certificate of Chemical ananlysis is that Ext. P6 forwarding note doesnot contain the specimen of seal used. The necessary inference is that the Chemical Examiner had no opportunity to verify the genuineness of sample forwarded to the laboratory. 17. 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 Crl.A No.1515 of 2008 9 sample, no evidentiary value can be attached to the Chemical Analysis Report. 18. 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. 19. 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]}. 20. 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. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. Crl.A No.1515 of 2008 10 21. 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** AP