Purushan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944 ``` ``` CRL.A NO. 1960 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 10.10.2007 IN SC 489/2003 OF ADDITIONAL ``` ``` SESSIONS COURT FAST TRACT (ADHOC), MAVELIKKARA ``` ``` APPELLANT/ACCUSED: ``` ``` PURUSHAN, AGED 38 YEARS, PUTHANPARAMBIL VEEDU,ENNAKKAD VILLAGE, PENNUGATTU MURI, CHENGANNUR. ``` ``` BY ADV SRI.S.MOHANAN ``` ``` RESPONDENT: ``` ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, CHENGANNUR. ``` ``` BY SR.PUBLIC PROSECUTOR SMT.REKHA.S ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.Appeal No.1960 of 2007 ``` 2 ## **`K.BABU, J`** `.` ``` ---------------------------------- ``` ``` Criminal Appeal No.1960 of 2007 ---------------------------------- Dated this the 15[th ]day of June, 2022 ``` ## JUDGMENT Aggrieved by the judgment dated 10.10.2007 passed by the Additional District & Sessions Court, Fast Track (Adhoc), Mavelikkara in Sessions Case No.489/2003, the accused has preferred this appeal. The appellant/accused was convicted under Sections 8(2) & 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of 3½ years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 17.07.2001 at 2.30 PM the appellant/accused was found in possession of 645 litres of wash for distillation of arrack at Ennakadu 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) & 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 were framed against him for the offences punishable under Sections 8(2) & 55(g) of the Abkari Act. The accused pleaded ``` Crl.Appeal No.1960 of 2007 ``` 3 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 P9 and MOs 1 to 4. 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) & 55(g) of the Abkari Act and convicted him thereunder. 6. Heard Sri.S.Mohanan, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence is challenged on the following grounds: 1. The prosecution failed to establish the conscious possession of contraband substance by the accused. ``` Crl.Appeal No.1960 of 2007 ``` 4 2. The arrest of the accused as alleged by the prosecution is doubtful. 3. The prosecution failed to prove that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The alleged arrest and seizure were effected on 17.07.2001 by PW6, the SI of Police, Mannar Police Station. According to PW6, the Police team led by him was on patrol duty on the date of occurrence. When the Police team reached near St. Martry's CSI Church, a man was found sitting in the nearby bushes. PW6 apprehended him and searched the surroundings and recovered 654 litres of wash. The place from where wash was recovered is admittedly not owned and possessed by the accused. Ext.P2 report of the Village Officer shows that the ownership of the property from where recovery was effected could not be ascertained. Therefore, the prosecution failed to prove the possession of the property from where recovery was effected. The prosecution has no case that the accused was in physical possession of the articles at the scene of occurrence. The necessary inference is that the prosecution failed to prove conscious possession of the articles by the accused. ``` Crl.Appeal No.1960 of 2007 ``` 5 9. While dealing with the meaning of the word '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)]. 22. In Gunwantlal v. State of M.P. [1972 (2) SCC 194], 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 ``` Crl.Appeal No.1960 of 2007 ``` 6 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. [1972 (2) SCC 194] Halsburys laws of England (supra)] 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.” 10. In the instant case, prosecution failed to show that the accused had actual control over the contraband substance allegedly recovered from the place of occurrence. The resultant conclusion is that there is no evidence to establish the conscious possession of the wash allegedly recovered from the place of occurrence by the accused. 11. The defence challenges the arrest of the accused as alleged. The learned counsel relied on the presence of crime number in Ext.P5 arrest memo to contend that the arrest at the spot is doubtful. Ext.P5 contains the crime number (167/2001) registered ``` Crl.Appeal No.1960 of 2007 ``` 7 against the accused. While dealing with a similar fact situation, this Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] held as follows:- “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758: 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)]” 12. In the absence of satisfactory explanation offered by the prosecution with regard to the presence of crime number in Ext.P5 arrest memo a doubt arises as to the manner in which the seizure and arrest were effected. ``` Crl.Appeal No.1960 of 2007 ``` 8 13. The learned counsel for the appellant contended that the prosecution failed to establish that the wash allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. He relied on the following circumstances to substantiate his contentions: (1) The delay in the production of properties, including the sample, has not been satisfactorily explained. (2) The properties produced in some other case were subjected to analysis in the laboratory. 14. Ext.P7, the list of properties shows that the properties including the sample, reached the Court only on 23.07.2001. There is a delay of 6 days in bringing the properties before the Court. The prosecution has not offered any satisfactory explanation for the delay in the production of the same. 15. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] on the question of delay in the production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC 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 ``` Crl.Appeal No.1960 of 2007 ``` 9 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) In _**Ravi's case**_ (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 16. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 17. Ext.P9 Chemical Analysis Report shows that the properties forwarded as per letter dated 26.02.2001 of the Judicial First Class Magistrate Court-II, Chengannur were examined in the laboratory. 18. Ext.P7 property list shows that the sample reached the Court only on 23.07.2001 whereas the sample subjected to analysis in the laboratory is the one received as per letter dated 26.02.2001 of the Judicial Magistrate concerned. Therefore, the possibility that the sample forwarded from the Court might have been changed cannot be ruled out. ``` Crl.Appeal No.1960 of 2007 ``` 10 19. The discrepancy in the evidence of the prosecution, as discussed above points to the possibility of the sample being changed. This discrepancy should have been explained or clarified by the prosecution by examining the officials concerned. 20. In the instant case, the prosecution has not ventured to give evidence to rule out the possibility of the sample being changed or tampered with. 21. Yet another aspect that requires consideration is that in the present case, there is nothing to show that the specimen seal was produced before the Court and forwarded to the Chemical Examiner's Laboratory. The forwarding note/requisition for sending sample to the laboratory was also not produced and marked. 22. 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. 23. 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 ``` Crl.Appeal No.1960 of 2007 ``` 11 reaches the laboratory is required to be established by the prosecution. 24. 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 seals on the sample have not been tampered with. In **Sathi v. State of Kerala** (2007 (1) ILR 718 (Ker.)), this Court reemphasized 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 ``` Crl.Appeal No.1960 of 2007 ``` 12 been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala** (2011 (3) KLT 353). 25. 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. 26. 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. 27. 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 it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. ``` Crl.Appeal No.1960 of 2007 ``` 13 28. In the instant case, the prosecution miserably failed to show that the wash allegedly recovered from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P9 Chemical Analysis Report has no evidentiary value. 29. 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 offences alleged. He is set at liberty. The appeal is allowed as above. Sd/- **`K.BABU JUDGE`** ``` AJ ```