Pauloose v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944 CRL.A NO. 232 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 03.01.2008 IN SC 223/2006 OF ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM ``` ## **`APPELLANT/2ND ACCUSED:`** ``` PAULOSE, AGED 59 YEARS, S/O. SOURU, CHIRAYATH VEEDU, CHERANALLOOR KARA,KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK. ``` ``` BY ADV SRI.K.SUNILKUMAR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` BY ADV. SMT. REKHA,SR PP SRI.RAJESH A, SPL GP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.232 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------Crl.A No. 232 of 2008 --------------------------------------------- Dated this the 19[th ] day of December, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 03.01.2008, passed by the Additional Sessions Court (Adhoc-I), Ernakulam in Sessions Case No.223 of 2006, accused No.2 has preferred this appeal. The appellant/accused No.2 was convicted under Sections 55 (g) and 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of six months and pay a fine of Rs.1 Lakh. Accused No.1 is acquitted of the offences. 2. The prosecution case is that on 09.02.2004 at 5.30 p.m., the accused were found in possession of materials used for manufacturing liquor, wash and also manufacturing arrack in the kitchen of the house No.KP.II/99 (Chirayath House) in Koovappady village in violation of the provisions under Abkari Act. 3. 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 charges were framed against them for the offences ``` Crl.A.No.232 of 2008 ``` ``` 3 ``` punishable under Sections 55(g) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 3 and proved Exts. P1 to P6, and MOs 1 to 5. 5. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was 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. The Trial Court, after hearing the arguments addressed on both sides, found accused No.2 guilty of the offences under Sections 55(g) and 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. K. Sunil Kumar, the learned counsel appearing for the appellant/accused No.2 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:- (1) The prosecution failed to establish the possession of the contraband substances and the ``` Crl.A.No.232 of 2008 ``` ``` 4 ``` utensils used for the manufacturing of arrack by accused No.2. (2) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The prosecution case is that on 09.02.2004 at 5.30 p.m., on getting reliable information that distillation of arrack was being done in the residence of accused No.2, the Excise team rushed to the place of occurrence and seized the contraband substances and other utensils used for distilling arrack. On seeing the Excise team, one man ran away from the house. He was implicated as accused No.1. According to the prosecution, accused No.2 was the owner of the building. 9. Accused No.2 is charged with the offences under Sections 55(g) and 8(2) of the Abkari Act, on the ground that he happened to be the owner of the house, from where the contraband substances were recovered. He was neither found in that residence nor in the possession of the contraband substances. 10. According to the prosecution, the son of accused No.2 was engaged in the distillation of arrack. Other members of the ``` Crl.A.No.232 of 2008 ``` ``` 5 ``` family of accused No.2 were also residing in the building. 11. The prosecution has to prove that accused No.2 used, kept or had in his possession any materials, still, utensils, implement or apparatus for the purpose of manufacturing liquor in order to attract Section 55(g). 12. The learned counsel for the appellant contended that prosecution failed to establish the possession of the contraband by accused No.2. This Court in **Santhosh v. State of Kerala [2021 (5) KHC 214]** had considered the meaning of the term ‘possession’ in context of the Abkari Act. In **Santhosh (Supra),** this Court held thus:- “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 ``` Crl.A.No.232 of 2008 ``` ``` 6 ``` 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)]”.” 13. The prosecution in the instant case failed to establish conscious possession of the contraband substances by accused No.2 14. 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 ``` Crl.A.No.232 of 2008 ``` ``` 7 ``` 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 substances 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 substances allegedly recovered from the kitchen room of his house. Resultantly, the prosecution failed to establish possession of the contraband substances by the accused. 16. Yet another contention of the counsel for accused No.2 is that the prosecution failed to prove that the wash allegedly seized form the place of occurrence eventually reached the Chemical Examiner’s Laboratory. The prosecution has not adduced any evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for verification of the genuineness of the sample brought for analysis. The forwarding note/requisition for sending sample has not been produced and marked. ## 17. 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, ``` Crl.A.No.232 of 2008 ``` ``` 8 ``` 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 it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 18. In the instant case, prosecution failed to establish that the wash seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. Therefore, Ext.P12 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to connect the appellant with the contraband seized. 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 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 ``` Crl.A.No.232 of 2008 ``` ``` 9 ``` {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. Therefore, the appellant/accused is entitled to the benefit of doubt. 22. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. Accused No.2 is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK