Narayanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944** ## **CRL.A NO. 2459 OF 2008** **AGAINST THE JUDGMENT DATED 30.09.2008 IN SC 208/2008 OF ADDITIONAL SESSIONS COURT (ADHOC) III, MANJERI** **CP 39/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,MALAPPURAM APPELLANT:** NARAYANAN, S/O MAMMUNNI, VALIYATHALAKKAL HOUSE, VAZHAYUR. BY ADVS. P.MAYA P.VENUGOPAL ## **RESPONDENT:** STATE OF KERALA, REPRESENTED BY PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SENIOR PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.Appeal No.2459 of 2008** 2 **K.BABU, J** . ---------------------------------Criminal Appeal No.2459 of 2008 ---------------------------------- **Dated this the 14[th ] day of June, 2022** ## **JUDGMENT** Aggrieved by the judgment dated 30.09.2008 passed by the Additional Sessions Court-Fast Track Court No.III (Adhoc), Manjeri in Sessions Case No.208/2008, the appellant/accused has preferred this appeal. The appellant was convicted under Sections 8(2) & 55(g) of the Abkari Act and sentenced to undergo simple imprisonment for a term of 2 months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 18.08.2007, the appellant/accused was found in possession of 1 litre of illicit arrack in a can kept in one of the rooms of the house bearing No.VII/24 and also 18 litres of wash kept in a shed attached to the kitchen of the said house 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 **Crl.Appeal No.2459 of 2008** 3 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(g) 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. 4. The prosecution examined PWs 1 to 6 and proved Exts P1 to P8 and MOs 1 to 2. 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. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 8(2) and 55(g) of the Abkari Act and convicted him thereunder. 6. Heard Sri. P. Vijaya Bhanu, the learned Senior Counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. **Crl.Appeal No.2459 of 2008** 4 7. The learned Senior Counsel for the appellant challenges the judgment of conviction and sentence on the following grounds: 1. The prosecution failed to establish the conscious possession of the contraband substances allegedly recovered from the place of occurrence. 2. The arrest of the accused as alleged from the place of occurrence is doubtful in view of the fact that the arrest memo has not been produced and marked. 3. The prosecution failed to establish that the contraband substances allegedly seized from the place of occurrence were eventually subjected to analysis in the Chemical Examiner's Laboratory. 8. The alleged seizure was effected on 18.08.2007. The case of the prosecution is that a plastic can containing 1 litre of illicit arrack was recovered from one of the rooms in the residence bearing No.VII/24 of Vazhayoor Panchayat. It is further alleged that the detecting officer seized 18 litres of wash from a shed attached to the kitchen. **Crl.Appeal No.2459 of 2008** 5 9. The learned counsel for the appellant contended that the prosecution failed to establish the conscious possession of the articles by the accused in view of the fact that other members of the family were also residing in the building. It is further submitted that the dominion or control over the contraband substances by the accused has not been established by the prosecution. While dealing with the question of possession, in the context of the Abkari Act, this Court in **Santhosh v. State of** ## **Kerala** [2021(5) KHC 214] held as follows: “20. The word ‘possession’ is not defined in the Abkari Act. The Halsbury’s Laws of England, (5[th] 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)]. **Crl.Appeal No.2459 of 2008** 6 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)] xx xx xx 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.” 10. In the instant case, the prosecution failed to prove that the accused had the actual control over the contraband substances allegedly recovered from the building in question. Therefore, the prosecution failed to establish conscious possession of the contraband substances by the accused. The prosecution must fail on that ground alone. 11. The defence also challenges the arrest of the accused as alleged. In **D.K. Basu v. State of West Bengal** (1997 (1) **Crl.Appeal No.2459 of 2008** 7 SCC 416), the Apex Court directed that in all cases of arrest, preparation of 'arrest memo' is a mandatory requirement. The Apex Court directed that the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest, and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 12. It is relevant to note that, in the instant case, the 'arrest memo' and the 'arrest intimation' have not been placed before the Court. The prosecution has no case that the 'arrest memo' and 'arrest intimation' were prepared, but they could not be produced before the Court. The necessary inference is that the **Crl.Appeal No.2459 of 2008** 8 'arrest memo' and 'arrest intimation' were not prepared at the time of the alleged arrest. The prosecution case has been built up the foundation that the accused was arrested while possessing the contraband substance. The non-compliance with the mandatory requirements regarding arrest makes the alleged arrest doubtful. Where the prosecution has failed to establish arrest beyond reasonable doubt, the entire case set up by the prosecution falls to the ground. 13. This Court in **Ramankutty v. Excise Inspector** (2013 (3) KHC 308) had considered a similar fact situation. This Court held that non-compliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. Therefore, in the absence of evidence regarding the preparation of the arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes doubtful. 14. The learned counsel for the appellant further contended that the contraband substances allegedly seized from the place of occurrence were subjected to analysis in the **Crl.Appeal No.2459 of 2008** 9 Chemical Examiner's Laboratory. He relied on the following circumstances to substantiate his contentions:- 1. Ext.P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the samples. 2. The detecting officer officer has not given evidence as to the nature of the seal used. The specimen of the seal has not been produced before the Court to ensure the genuineness of the sample produced. 3. The forwarding note/requisition for sending sample has not been produced and marked. 15. Ext.P3 is the seizure mahazar prepared at the scene of occurrence to evidence the seizure and sampling. Ext.P3 does not contain the nature and description of the seal used by the detecting officer. There is nothing to show that the specimen of the seal was produced before the Court along with the properties, including the sample. The forwarding note/the requisition for sending sample to the laboratory has not been produced and marked. There is also no evidence to show that the specimen of **Crl.Appeal No.2459 of 2008** 10 the seal was forwarded to the Chemical Examiner's Laboratory to ascertain the genuineness of the sample forwarded. 16. The bottles containing the samples remained in the custody of the property clerk of the Court and the Excise official by name Sri.V.Prakash who delivered the sample to the laboratory. Those officers were not examined by the prosecution. Non-examination of those officers who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. 17. 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 at the place of occurrence was the sample tested in the Chemical Examiner's Laboratory. 18. 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. **Crl.Appeal No.2459 of 2008** 11 19. 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 seal on the sample has not been tampered with. In **Sathi v. State of Kerala** (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 **Crl.Appeal No.2459 of 2008** 12 by a Division Bench of this Court in **Ravi v. State of Kerala** (2011 (3) KLT 353). 20. 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. 21. 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 sample, no evidentiary value can be attached to the chemical analysis report. 22. In **Ramachandran v. State of Kerala (** 2021 (1) KLT 793) while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that **Crl.Appeal No.2459 of 2008** 13 it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's Laboratory. 23. Since the prosecution failed to establish that the very same sample drawn at the scene of occurrence was sent to the laboratory. Ext.P8 Certificate of Chemical Analysis has no evidentiary value. The upshot of the above discussion is that the conviction and sentence passed 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** AJ