Rajan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 23[RD] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943** **CRL.A NO. 1708 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 573/2005 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA, KOZHIKODE** ## **APPELLANT/ACCUSED:** RAJAN AGED 42 YEARS S/O. GOPALAN, THERUVANKATTIL HOUSE, NANMINDA AMSOM DESOM, KOYILANDY TALUK. BY ADV SRI.P.R.SREEJITH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI. M.C. ASHI (P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1708 of 2007 2 ## **K.BABU, J** . -------------------------------------- Criminal Appeal No.1708 of 2007 --------------------------------------Dated this the 23[rd] day of September, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 24-08-2007, passed by the Additional District & Sessions Judge, Vadakara in S.C No.573/2005, 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 24-06-2003 at 4.30 p.m. the accused was found in possession of two cartons (Cardboard boxes) containing 24 bottles of 'Doctor No.1 Grape' brandy kept on the floor of a transport bus near the third seat from the rear side. 4. After completion of the investigation, the final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Crl.A No.1708 of 2007 3 Act before the Judicial First Class Magistrate Court, Vadakara. The case was committed to the Sessions Court, Kozhikode from where it was made over to the Additional Sessions Court, Vadakara. 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 trail Court for the aforesaid offence. 5. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P8 and MOs 1 to 4. 6. After 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 that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments Crl.A No.1708 of 2007 4 addressed from both sides, found that the accused is 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 one year and to pay a fine of Rs.1 Lakh under Section 55(a) of the Abkari Act. 7. Heard Sri.P.R.Sreejith, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. The Excise Inspector, Nadapuram Range (PW1) detected the offence. He gave evidence that on 24-06-2003 at 4.30 p.m. the Excise team led by him inspected a bus bearing registration No.KL 13/B 36 near Chombal Telephone Exchange on the Thalassery-Vadakara road. PW1 recovered two cartons (Cardboard boxes) containing 24 bottles of 'Doctor No.1 Grape' brandy kept on the floor of the bus near the third seat from the rear side. The accused was found sitting on a 5 Crl.A No.1708 of 2007 nearby seat. Based on the information, given by the conductor of the bus, to the effect that it was the accused who had carried and kept the cartons, PW1 arrested him and seized the contraband substances. He collected 200 ml of liquor from one of the bottles in a 375 ml. bottle and sealed the same to be used as sample. PW1 prepared Ext.P3 seizure mahazar. He produced the accused and the contraband substances before PW4. 9. PW2, an Excise guard who had accompanied PW1 in the search and seizure, supported the prosecution. PW3, the conductor of the bus, could not identify the accused as the person who had carried the contraband substance as alleged by the prosecution. PW4, the Excise Inspector, Vadakara, produced the properties including the sample before the Court on 25-06-2003. PW6 conducted the investigation. PW7, the property clerk of the Court, received the properties including the sample on 25-06-2003 and forwarded the sample to 6 Crl.A No.1708 of 2007 the Chemical Examiner’s laboratory on 03-07-2003. 10. The learned counsel for the accused contended that the prosecution failed to establish the possession of the contraband substance by the accused as alleged. The case of the prosecution is that two cartons containing 24 bottles of liquor were found on the floor of the bus, from where the contraband substances were recovered. According to the detecting officer, the cartons containing the liquor were found near the third seat from the rear side of the bus. The accused was sitting on a nearby seat. The learned counsel submitted that the prosecution failed to establish the necessary ingredients to attribute possession in respect of the contraband substance by the accused. According to the prosecution, the accused was implicated in the crime based on the information given by the conductor of the bus (PW3), that it was the accused who kept the cartons in the bus. The conductor of the bus denied having given such a statement to the police. He failed to Crl.A No.1708 of 2007 7 identify the accused as the person who possessed the contraband substance in the bus as alleged by the prosecution. 11. In _**Mohan Lal v. State of Rajasthan**_ [(2015) 6 SCC 222], the Apex Court observed that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge. ## 12. In _**Santhosh v. State of Kerala**_ [2021 (5) KHC 214] while dealing the question of possession this Court held thus: _“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_ Crl.A No.1708 of 2007 8 _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)]”._ _24. …...... …......_ _25. …...... …......_ _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 actual physical possession of the contraband substance by the accused. The proof of conscious possession of the contraband substance by the accused is inevitable to establish the prosecution allegation.”_ 13. In order to establish possession, the prosecution has to prove the above referred ingredients. This Court is of the considered view that the prosecution failed to establish the possession of the contraband substance as alleged. 14. The learned counsel for the appellant/accused Crl.A No.1708 of 2007 9 further submitted that the detecting officer has not given evidence as to the specific nature of the seal affixed on the bottle containing the sample. The learned counsel further submitted that the specimen impression of the seal had not been produced before the Court and forwarded to the Chemical Examiner for verification. Exhibit P5 is the copy of the forwarding note. The specimen impression of the seal has not been mentioned in Ext.P5. The seal found affixed in Ext.P5 is the official seal of the Judicial First Class Magistrate Court, Vadakara. The specimen impression of the seal has not been produced and marked in this case. In the absence of any evidence to show that the specimen impression of the seal had been provided to the Chemical Examiner for verification, the statement in Ext.P8 certificate of chemical analysis that the seal on the bottle was intact and found tallied with the sample seal provided, cannot be accepted. While dealing with a similar fact situation, in _**Rajamma v.**_ Crl.A No.1708 of 2007 10 _**State of Kerala**_ (2014(1) KLT 506), this Court held thus: _“The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant.”_ 15. In the instant case, the prosecution failed to establish that the specimen impression of the seal had been forwarded to the Chemical Examiner for verification. So no evidentiary value can be attached to Ext.P8 certificate of chemical analysis. 16. The sample collected from the scene of occurrence reached the laboratory on 03-07-2003. It was subjected to analysis on 27-05-2004. There is no 11 Crl.A No.1708 of 2007 satisfactory explanation for the delay in the analysis of the sample. While dealing with a similar fact situation, this Court in _**Krishnadas v. State of Kerala**_ [2019 KHC 191] held as follows: _“6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.”_ In the instant case, the delay of more than 10 months in the analysis of the sample has not been satisfactorily explained. 17. 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 12 Crl.A No.1708 of 2007 to be co-related. 18. 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 allegedly recovered from the place of occurrence. {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR 1980 SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 19. 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. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 20. 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 sustained. The appellant/accused is, therefore, not Crl.A No.1708 of 2007 13 guilty of the offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE KAS