Ponnan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 ``` ``` CRL.A NO. 1727 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT SC 50/2007 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC-III),NORTH PARAVUR DATED 16.07.2008 ``` ## **`APPELLANT/ ACCUSED:`** ``` PONNAN, S/O.MADHAVAN HOUSE, CHERIYA PALLAMTHURUTH, PARAVUR, VILLAGE, PARAVUR TALUK. ``` ``` BY ADVS. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.N.T.NANDAKUMAR PARAVUR ``` ## **`RESPONDENTCOMPLAINANT:`** ``` STATE OF KERALA, REP. BY EXCISE INSPECTOR N.PARAVUR EXCISE RANGE. ``` ``` BY PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A No. 1727 of 2008 2 ## **K.BABU, J.** ------------------------------------------Crl.A No. 1727 of 2008 --------------------------------------------- Dated this the 15[th] day of November, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 16.07.2008, passed by the Additional Sessions Court, Adhoc-lll, North Paravur in S.C.No.50/2007, the appellant/accused has preferred this appeal. The appellant/accused was convicted under Sections 8(2) and 55(g) 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 29.07.2005 at 11:30 am, the accused was found in possession of 115 litres of illicit arrack and 50 litres of wash in his house No. IX/341 of Chittattukara Panchayath, 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 where it was made over to the Trial Court. On the appearance of the accused, charges 3 Crl.A No. 1727 of 2008 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 7 and proved Exts.P1 to P14 and MO1 series, MO2, MO3 series & Mos 4 to 13. 5. After the closure of the prosecution evidence, statement of the accused under Section 313 Cr.PC. 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. On the side of defence, DW1 was examined and Exhibits D1 to D2 were marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offences. 6. Heard Sri. G.Balamuraleedharan, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A No. 1727 of 2008 4 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds: (i) The seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. (ii) The forwarding note does not contain the specimen of the seal stated to have been affixed on Ext. P3 Mahazar. (iii) The prosecution failed to establish the conscious possession of the contraband substance by the accused. 8. Ext.P3 mahazar prepared by the detecting officer at the scene of occurrence to evidence the arrest and seizure does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The detecting officer has not given evidence as to the nature and description of the seal used. The detecting officer has also not produced the specimen of the sample at the time of production of properties before the Court. 9. 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 Crl.A No. 1727 of 2008 5 seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 10. The forwarding note does not contain the specimen of the seal stated to have been affixed on Ext. P3 Mahazar. The space meant for affixing the sample is left vacant. 11. 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. 12. The prosecution failed to show the physical possession of the contraband substance by the accused. The prosecution case is that the accused was present in the building from where the contraband substances were recovered. Admittedly, his wife and other members of their family were also residing there. To establish the ingredients of the offences alleged, the prosecution has to prove the conscious possession of the contraband substance by the accused. While constructing the meaning of the word ‘possession’ in the context of Crl.A No. 1727 of 2008 6 ## Abkari Act, 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 Gunwantial 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 Crl.A No. 1727 of 2008 7 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”. 13. In the present case, the prosecution miserably failed 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. 14. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the Crl.A No. 1727 of 2008 8 appellant/accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU JUDGE** TKS