Pramod, S/o Anirudhan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944 CRL.A NO. 699 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 18/2007 OF ADDITIONAL SESSIONS COURT(ADHOC)-1, KOTTAYAM** **APPELLANT/ACCUSED:** **PRAMOD, S/O ANIRUDHAN, AGED 35 YEARS PALAKKULAM HOUSE, PARALKARA, VAZHAPPALLY WEST, CHANGANASSERY. BY ADVS. SRI.G.SUKUMARA MENON SMT.DEEPTHI S.MENON** ## **COMPLAINANT/RESPONDENT:** **STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SMT. REKHA.S (SR.P.P)** THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No. 699 of 2007 2 **K.BABU, J** . -------------------------------------Criminal Appeal No.699 of 2007 --------------------------------------Dated this the 24[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 28.03.2007, in S.C No.18/2007, passed by the Additional Sessions Judge (Adhoc)-I, Kottayam, the accused has preferred this appeal. 2. The trial Court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 25.01.2003 at about 1.00 p.m the appellant/accused was found in possession of 10 littres of arrack, in the building bearing No. XVI/168 and 65 litters wash on the premises of the building owned and possessed by him. 4. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before Crl.A No. 699 of 2007 3 the Judicial First Class Magistrate Court, Changanacherry. The case was committed to the Sessions Court, Kottayam from where it was made over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 5. The prosecution examined PWs 1 to 9 and proved Exts.P1 to P7, X1 & X2 series and MOs 1 to 3. 6. 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. From the side of the defence DW1 was examined and proved Ext.D1. The trial Court, after hearing the arguments 4 Crl.A No. 699 of 2007 addressed on both sides, found the accused guilty of the offence under Section 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs.100,000/- under Section 55(a) of the Abkari Act. 7. Heard Sri.G.Sukumara Menon, learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 8. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the following grounds. a) The prosecution failed to establish that the contraband substance seized from the place of occurrence was in the possession of the appellant/accused. b) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was actually subjected to analysis in the Chemical Examiner's laboratory. Crl.A No. 699 of 2007 5 9. The offence was detected by PW1, a Preventive Officer attached to Excise Range Office, Changanacherry. PW1 conducted a raid on 25.01.2003, on getting reliable information that illicit arrack and wash were stored in the residence of the appellant/accused. He proceeded to his residence and recovered 10 littres of arrack and 65 litters of wash. 10. According to PW1, on seeing the excise party led by him two or three persons escaped from the building and they could not be apprehended. PW1, further stated that it was the appellant and his wife who ran away from the building at the time of occurrence. To substantiate the prosecution case that the accused was in possession of the contraband substance in building No.168 of Ward No.XVI of Vazhappally Grama Panchayath, the prosecution relied on Ext.P5, a certificate issued by the Secretary, Vazhappilly Garama Panchayth stating that Pramod, Palakkulam, Vazhappally was the owner of the building at the relevant period. The defence refuted the prosecution 6 Crl.A No. 699 of 2007 evidence based on Ext.P5 relying on Ext.D1, a copy of the identity card issued by the Election Commission in favour of the appellant/accused which would show that the appellant was residing in building No. 661 of Veloor Laksham Veedu, Vazhappally. 11. According to the prosecution, on seeing the Police party, two or three persons escaped from the building. The question to be considered is whether the prosecution could establish that the appellant/accused had dominion or control over the contraband substances recovered from the place of occurrence. 12. While dealing with the question of possession of contraband substance in the context of the Abkari Act, this Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] 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 Crl.A No. 699 of 2007 7 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 **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 Crl.A No. 699 of 2007 8 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 KHC 464 = 1972(2) SCC 194 Halsburys laws of England (supra)]”. 13. In the given case, the building from where the contraband substances were recovered was admittedly in the occupation of the accused and his wife. In **Santhosh's Case** (supra) on the evidentiary burden to establish possession this Court held thus: “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 9 Crl.A No. 699 of 2007 the offence alleged.” 14. In the instant case, the prosecution failed to establish that the accused had conscious possession over the contraband substances allegedly recovered from the kitchen of the building. Resultantly, the prosecution failed to establish possession of the contraband substance by the accused. 15. The further contention of the learned counsel for the appellant/accused is that the prosecution also failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel relied on the following circumstances to substantiate his contentions. 1) The detecting officer has not given evidence as to the nature and description of the seal stated to have been affixed on the bottle containing the sample. 2) No specimen seal was produced before the Court 10 Crl.A No. 699 of 2007 to ensure the genuineness of the sample produced. 3) There is no evidence as to the date on which the sample was forwarded to the Chemical Examiner's laboratory. 4) There is nothing to show as to the person with whom the sample was forwarded to the laboratory. 16. 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. 17. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamperproof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required Crl.A No. 699 of 2007 11 to be established by the prosecution. 18. 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. Daulat Ram** (1980 KLT OnLine 1025 (SC) : 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 seals on the sample have not been tampered with. In **Sathi v. State of Kerala** : (2017 (1) KLT SN 6 (C. No. 7) : 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 12 Crl.A No. 699 of 2007 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). 19. **In Bhaskaran v. State of Kerala** : (2019 (3) KLT SN 34 (C. No.49) : 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. 20. 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 13 Crl.A No. 699 of 2007 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. 21. 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 tamperproof 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. 22. In the instant case, this Court also noticed the following deficiencies in the prosecution evidence. a. The specimen of the seal has not been produced before the Court. Crl.A No. 699 of 2007 14 b. No forwarding note/requisition for sending sample to the laboratory was produced and marked. c. The detecting officer has not given evidence as to the nature and description of the seal used. 23. In **Vijay Pandey v. State of U.P.** [AIR 2019 SC 3569] the Apex Court held thus:- “the failure of the prosecution in the case to relate the seized sample with that seized from the appellant, makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of the Laboratory report that the sample tested was narcotics cannot be conclusive proof by itself.” 24. 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. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be 15 Crl.A No. 699 of 2007 sustained. The appellant/accused is, therefore, not guilty of the offence punishable under Section 55(a) of the Kerala Abkari Act. He is acquitted of the charge. He is are set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE rpk