Majeed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944** **CRL.A NO. 1630 OF 2008** **AGAINST THE ORDER/JUDGMENTSC 159/2006 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-II, KOLLAM** ## **APPELLANT/ACCUSED NO.1:** **MAJEED** **VEEDU, NJARAKKAL CHERRY, THRIKKADAVOOR VILLAGE.** **BY ADV M.T.SURESHKUMAR** ## **RESPONDENT/ COMPLAINANT:** **STATE OF KERALA** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **REKHA,GP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1630 of 2022 2 ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1630 of 2008 --------------------------------------------- Dated this the 29[th] day of November, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 15.7.2008, passed by the Additional District & Sessions Court (Adhoc-II), Kollam, in Sessions Case No.159/2006, accused No. 1 has preferred this appeal. The appellant/accused No.1 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.2 Lakhs. 2. The prosecution case is that on 31.12.2005 at 07.35 a.m, the appellant/accused No.1 and the other accused were found in possession of 35 litres of spirit in a can in the bathroom situated on the eastern side of their residence at Kollam in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant and the other accused for the offence punishable under Section 55 (a) 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 Crl.A No.1630 of 2022 3 the appearance of the accused charge was framed against them for the offence punishable under Section 8(2) of the Abkari Act. They pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P12. 5. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. Exts.D1 to D4 were marked on the side of the defence. The Trial Court, after hearing the arguments addressed on both sides, found the appellant/accused No.1 guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. Accused No.2 was acquitted of the offence. 6. Heard Sri.M.T Sureshkumar, the learned counsel appearing for the appellant/accused No. 1 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.1630 of 2022 4 (1) The prosecution failed to establish the conscious possession of the contraband substance by the appellant/accused No.1. (2) The prosecution failed to establish that the contraband seized from the scene of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 8. The alleged seizure was effected on 31.12.2005 by the Excise Inspector, Excise Range, Kollam (PW3) from the bathroom situated on the premises where the house of the appellant is situated. The learned counsel for the appellant contended that the prosecution failed to establish the conscious possession of the contraband substance by the appellant. According to the prosecution, the seizure was effected from the bathroom situated on the land where the residence of the appellant is situated. In Ext.P1, seizure mahazar there were references of two buildings, one building bearing No. 206 of Thrikkadavoor Panchayath and the other building bearing No. 207 of Thrikkadavoor Panchayath. The prosecution case is that the appellant was residing in building No.206. The prosecution has not specified as to whether the bathroom was attached to building No.206 or 207. The case of the prosecution as spoken to by the detecting officer (PW3) is that, he Crl.A No.1630 of 2022 5 found one man carrying the can containing the spirit. PW3 has not specifically given evidence as to who had handled the can at the relevant time. According to PW3, the can containing the spirit was recovered from the bathroom. Admittedly there were two buildings on the premises. The prosecution failed to give evidence as to the exclusive possession and ownership of the bathroom from where the contraband substance was seized. Only if the prosecution establishes that the appellant/accused had exclusive dominion and control over the contraband substance allegedly recovered from the building, he can be found to be in possession of the same so as to attract the offence alleged. 10. While dealing with the question of possession 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 Crl.A No.1630 of 2022 6 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 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 [92 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.” Crl.A No.1630 of 2022 7 11. In the instant case, as the prosecution has not succeeded in establishing the conscious possession of the building from where the contraband was recovered, the prosecution must fail on that ground alone. 12. The learned counsel for the appellant further contended that the prosecution also failed to establish the tamper-proof despatch of the sample to the laboratory. Relying on Ext.P9, the forwarding note, the learned counsel contended that non-examination of the property clerk of the Court and the Excise official who delivered the sample in the laboratory is fatal to the prosecution. The learned counsel relied on **Kumaran v. State of Kerala [2016 (4) KLT 718]** to substantiate his contentions. 13. Ext.P9, the forwarding note does not contain the name of the official with whom the sample was forwarded to the laboratory. The space meant to incorporate the name of the Excise guard with whom the sample was forwarded is left vacant in Ext.P9. The date on which the sample was forwarded to the laboratory is also not evident from the materials produced. In Ext.P9, though the learned Magistrate countersigned, he missed to put the date on which he made the initials. While considering a similar fact situation, this Court in **Kumaran v. State of Kerala (supra)** , held thus: Crl.A No.1630 of 2022 8 _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of Chemical Analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove - the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 14. In the instant case, as the prosecution has not examined the officials who handled the sample during its transit Crl.A No.1630 of 2022 9 from the Court to the laboratory, the necessary conclusion is that the prosecution failed to rule out the possibilty of the sample being changed or tampered with. Therefore, Ext. P12 Certificate of Chemical Analysis has no evidentiary value. 15. In the instant case, the prosecution failed to establish the link connecting the accused with the contraband seized. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 16. 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