Lohithakshan @ Gopi v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 CRL.A NO. 2455 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 25.09.2008 IN SC 528/2006 OF ADDITIONAL DISTRICT AND SESSION COURT, FAST TRACK (ADHOC-I), KOZHIKODE ``` ``` IN CP 15/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS I, ``` ## **`THAMARASSERY`** ## **`APPELLANT/ACCUSED:`** ``` LOHITHAKSHAN @ GOPI, AGED 56 YEARS, S/O.RARICHAN, VATTAPOYIL HOUSE, KADAVUR AMSOM, CHAMAL DESOM, KOZHIKODE DISTRICT. ``` ``` BY ADV C.VIVEK ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA..S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2455 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------Crl.A No. 2455 of 2008 --------------------------------------------- Dated this the 13[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 25.09.2008, passed by the Additional District and Sessions Court, Fast Track (Adhoc-I), Kozhikode in Sessions Case No.528/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(a) 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 05.04.2005 at 6.10 a.m., the appellant/accused was found in possession of 35 litres of illicit arrack beneath the slab in the kitchen of the house bearing No.VIII/234 of Thamarassery Panchayath at Chamal Angadi, 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 55(a) of the Abkari Act before the jurisdictional Magistrate. ``` Crl.A.No.2455 of 2008 ``` ``` 3 ``` 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 Section 55(a) 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 8 and proved Exts. P1 to P11 and MO 1. 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. 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 55(a) of the Abkari Act and convicted him thereunder. 6. Heard Sri.C.Vivek , 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/accused ``` Crl.A.No.2455 of 2008 ``` ``` 4 ``` challenged the judgment of conviction and sentence on the following grounds: - (1) The prosecution failed to establish that the illicit arrack allegedly recovered from the place of occurrence was in the actual possession of the accused. - (2) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner’s Laboratory. 8. The alleged seizure was effected on 05.04.2005 by the SI of police, Thamaraserry (PW7). According to PW7, 35 litres of illicit arrack was recovered from the building bearing No.VIII/234, the residence of the accused. The prosecution has no case that the accused was in the physical possession of the contraband recovered. According to PW7, 35 litres of arrack was kept in a can in the kitchen of the building from where the recovery was effected. 9. The learned counsel for the appellant submitted that Ext.P3 Ownership Certificate issued from the local authority would show that the number of the building from where the recovery was effected was TP III/263. The learned counsel also relying on Ext.D1, ``` Crl.A.No.2455 of 2008 ``` ``` 5 ``` copy of the ration card issued in favour of the accused, submitted that as three more persons were residing in the building, the possession of the contraband substance recovered from the building cannot be attributed to the accused. 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.” ``` Crl.A.No.2455 of 2008 ``` ``` 6 ``` 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 KLT OnLine 1112 (SC) = 1972 KHC 464 = 1972 (2) SCC 194 Halsburys laws of England (supra)** ]. xxx xxx xxx xxx xxx xxx 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 the instant case, the prosecution failed to establish that the accused had actual control over the contraband substance recovered from the kitchen room of the residence of the accused. Resultantly, the prosecution failed to establish the possession of the contraband substance by the accused. 12. The learned counsel for the appellant/accused further contended that the prosecution also failed to establish the ``` Crl.A.No.2455 of 2008 ``` ``` 7 ``` genuineness of the sample produced before the Court and further that the sample was forwarded to the laboratory in a tamper proof condition. 13. Ext.P1 is the search list prepared by the detecting officer. Ext.P2 is the mahazar prepared at the scene of occurrence. The contemporaneous documents prepared during seizure and drawing of the sample do not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. PW7, the detecting officer has not given evidence as to the nature of the seal used. The properties, including the sample, were produced before the Court on 05.04.2005. The Junior Superintendent of the Court received the sample. The sample remained in the custody property clerk till 29.04.2005. The bottles containing the sample were forwarded to the laboratory through Police Constable No.4432. The Junior Superintendent of the Court, the Property Clerk of the Court and the Police official who received the sample from the Court and delivered to the Chemical Examiner’s Laboratory were not examined by the prosecution. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during its transit from the Court to the laboratory. 14. The crux of the offences under the Abkari Act, by its ``` Crl.A.No.2455 of 2008 ``` ``` 8 ``` 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. 15. 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 it reaches the laboratory is required to be established by the prosecution. 16. 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. Daulat 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 ``` Crl.A.No.2455 of 2008 ``` ``` 9 ``` 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 Section 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)** . 17. In **Bhaskaran v. State of Kerala (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. 18. Therefore, Ext.P11 Certificate of Chemical Analysis has no evidentiary value. 19. 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 ``` Crl.A.No.2455 of 2008 ``` ``` 10 ``` 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. 20. 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]}. 21. 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. 22. 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