Parukkutty d/o Kunju Panicker v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944** **CRL.A NO. 414 OF 2008** **AGAINST THE JUDGMENT DATED 05.02.2008 IN SC.NO.764/2005 OF** **ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM APPELLANT/ACCUSED:** **PARUKKUTTY D/O. KUNJU PANICKER, GURUKKASSERIL VEEDU, THEKKUM MURI PADINJARU, THAZHAVA VILLAGE, KARUNAGAPPALLY** **BY ADV ABDUL JAWAD K.** **RESPONDENT/ACCUSED & STATE:** **STATE OF KERALA REP. BY THE EXCISE INSPECTOR OF KARUNAGAPPALLY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **OTHER PRESENT:** **SMT. REKHA.S. (SR.P.P)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 414 OF 2008** 2 ## **J U D G M E N T** This appeal arises from the judgment dated 05/02/2008 passed by the Additional Sessions Court (Adhoc-II) Kollam in Sessions Case No.764 of 2005. The accused was convicted under Section 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs.1,00,000/-. 2. During the course of proceedings in this appeal, the appellant died. It is reported that the appellant died on 25/10/2019. 3. The sentence impugned is a composite sentence of fine and imprisonment. Therefore, the appeal shall not abate with the death of the appellant/accused. Sufficient opportunity was given to the near relatives of the appellant to prosecute the appeal. None of the near relatives turned up. The Apex Court in **Ramesan v State of Kerala [(2020) 3 SCC 45]** held that the appeal is to be decided on merits in cases where sentence **CRL.A NO. 414 OF 2008** 3 under challenge is a composite sentence of fine and imprisonment. 4. The prosecution case is that the accused was found in possession of 40 litres of wash in one of the rooms of her residence namely, Gurukkasseril Veedu at Thazhava on 07/09/2001. 5. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(g) and 8(2) 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 her for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence. 6. The prosecution examined PWs.1 to 6 and proved Exts.P1 to P5 and MOs1 and 2. **CRL.A NO. 414 OF 2008** **==> picture [7 x 9] intentionally omitted <==** 7. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55(g) of the Abkari Act and convicted her thereunder. 8. Heard Sri.K.Abdul Jawad, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 9. The alleged seizure was on 07/09/2001. PW3, the Excise Inspector, Karunagapally effected the seizure. According to PW3, he searched building bearing No.XV/328 of Thazhava Panchayath and detected the **CRL.A NO. 414 OF 2008** **==> picture [7 x 9] intentionally omitted <==** contraband substance. The owner of the residence Sri.Kunju Panikkan was not available there. The accused and the wife of Sri.Kunju Panikkan, was there in the residence. According to PW3, the accused could not be arrested as no woman police constables were available. 10. The identity of the person who was in possession of the contraband article at the place of occurrence is under challenge. The official witnesses who searched the house and detected the contraband substance had no previous acquaintance with the accused. They had no opportunity to see the accused after the incident. They identified the accused in the box in 2007, after a long lapse of 6 years. 11. It is well settled that where a witness identifies an accused who is not known to him in the court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an **CRL.A NO. 414 OF 2008** 6 opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court **[vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 (SC) 1382], Mohd. Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]** . So on this ground alone the prosecution must fail. 12. Therefore in the present case, the prosecution failed to establish the identity of the person who was in possession of the contraband substance. 13. According to the prosecution, the seizure was effected from building No.XV/326 of Thazhava Panchayat. PW6, the Investigating Officer, while examined in cross, stated that he could realise the fact that the building did not belong to the accused only after getting the ownership certificate. The prosecution has **CRL.A NO. 414 OF 2008** **==> picture [7 x 9] intentionally omitted <==** no case that the accused was in the physical possession of the contraband seized. In order to bring home the offence punishable under Section 55(g) of the Abkari Act the prosecution has to establish that the accused had exclusive dominion and control over the contraband substance alleged to have been recovered from the building. This Court had occasion to consider the question of possession in the context of the Abkari Act in **Santhosh v State of Kerala [2021 (5) KHC 214].** 14. In **Santhosh v State of Kerala [2021 (5) KHC 214]** this Court 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 **CRL.A NO. 414 OF 2008** 8 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 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 Crl.A No.2182 of 2006 11 possession is referred to as 'constructive possession'. [See : Gunwantlal v. **CRL.A NO. 414 OF 2008** 9 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 Crl.A No.2182 of 2006 12 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. 15. In the instant case, the prosecution failed to establish that the accused had actual control over the contraband substance allegedly recovered from the building from where it was recovered. 16. Though the alleged seizure was effected on 07/09/2001, the properties including the sample reached the Court only on 11/09/2001 as is evident from Ext.P3 **CRL.A NO. 414 OF 2008** 10 list of properties. The prosecution has not offered any explanation for the delay in the production of articles including the sample before the Court. A Division Bench of this Court in **Ravi v. State of Kerala & another** [2011 (3) KHC 121] on the question of delay, in the production of properties, held thus: “It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied) 17. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of seal used. The specimen of the seal was not **CRL.A NO. 414 OF 2008** 11 produced before the Court. The forwarding note/ requisition for sending sample to the laboratory, was also not produced and marked. The sample remained in the custody of the property clerk of the Court and the Excise Guard who delivered the sample in the laboratory. Ext.P4, Certificate of Chemical Analysis, shows that the bottles containing the sample were forwarded to the laboratory on 11/09/2001. The sample reached the laboratory only on 12/09/2001. The sample was delivered in the laboratory by Shri.Subhash Chandranpillai, an Excise Guard. Those officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 18. 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 **CRL.A NO. 414 OF 2008** 12 Chemical Examiner's laboratory. 19. 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. 20. 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 (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 **CRL.A NO. 414 OF 2008** 13 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 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)** . 21. 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 **CRL.A NO. 414 OF 2008** 14 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. 22. 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. 23. In **Ramachandran v. State of Kerala (MANU/KE/3804/2020 : 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 **CRL.A NO. 414 OF 2008** **==> picture [13 x 9] intentionally omitted <==** evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 24. In the instant case, the prosecution failed to show that the contraband substance seized from the place of occurrence was eventually subjected to analysis in the chemical examiners laboratory. Therefore, Ext.P4, Certificate of Chemical Analysis, has no evidentiary value. The conviction and sentence, therefore, cannot be sustained. Resultantly, the conviction and sentence passed against the appellant stand set aside. The appeal is allowed as above. Sd/- ## **K. BABU, JUDGE** AS