SADASIVAN @ SADAN v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943 ``` ## **`CRL.A NO. 1933 OF 2007`** ``` JUDGMENT DATED 29.09.2007 IN SC 211/2006 OF THE ADDITIONAL SESSIONS COURT/SPECIAL COURT FOR NDPS ACT CASES, THODUPUZHA APPELLANT/ACCUSED: ``` ``` SADASIVAN @ SADAN S/O. GOPALAN, URUMBIL HOUSE, AYYAPPAN COIL VILLAGE, KALTHOTTY, IDUKKI. ``` ``` BY ADV ``` ``` SADASIVAN @ SADAN (PARTY) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, KATTAPPANA RANGE, KATTAPPANA, IDUKKI. ``` ## **`BY ADV.`** ## **`SRI.RANJIT GEORGE – PUBLIC PROSECUTOR`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.01.2022, THE COURT ON 14.02.2022 DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1933 OF 2007 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the accused in S.C. 211/2006 on the file of the Additional Sessions Judge/Special judge for NDPS Act Cases, Thodupuzha. As per the judgment impugned in this case, the appellant was found guilty for the offence punishable under Section 55(g) of Abkari Act. On the basis of the said finding he was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh. It was also ordered that in default of payment of fine he shall undergo simple imprisonment for six months. 2. The prosecution case is that, on 04.02.2002 at about 2.30 p.m., the accused was found in his possession 50 litres of wash in his property at Kalthotty Kara in Ayyappankovil Village. According to the prosecution case, the contraband article was recovered when an inspection was conducted by the Excise party under the leadership of Excise Inspector, Kattappana Excise Range upon getting reliable information in respect of the same. At the relevant time, the appellant was present in his residence and he was arrested immediately after the inspection. Based on the aforesaid inspection, Crime No.6/2002 of ``` CRL.A NO. 1933 OF 2007 ``` ``` 3 ``` Excise Range, Kattappana was registered and after completing the investigation thereon, a final report was submitted before the Judicial First Class Magistrate Court, Kattappana, where the file was taken as C.P. No.57/2005. Later, after complying with the statutory formalities, the case was committed to the Court of Session and later it was made over to Assistant Sessions Court, Kattappana. Subsequently the case was transferred to the Court of Special Judge for NDPS Act Cases, Thodupuzha and it was tried as S.C. No.211/2006. In support of the prosecution case, they have examined PWs 1 to 6, marked Exts.P1 to P9 and the cannas which was found in the premises of the appellant with wash was marked as MO1. 3. After completing the prosecution evidence, the appellant was examined under Section 313 of Cr.P.C and the incriminating materials brought out during the course of trial were put to him. The appellant denied and pleaded innocence. No defence evidence was adduced by the appellant. On the basis of the materials available on record, the Sessions Court arrived at the finding that the appellant is guilty of the offences and accordingly he was imposed with the ``` CRL.A NO. 1933 OF 2007 ``` ``` 4 ``` sentence as mentioned above. This appeal is filed challenging the aforesaid conviction and sentence. 4. Heard Miss.Aiswarya Ann Jacob, learned Amicus Curiae appointed by this Court and Sri.Ranjith George, learned Public Prosecutor appearing for the State. 5. Learned Amicus Curie contended that the finding of guilt entered into by the Sessions Court is without the support of proper materials and the prosecution miserably failed in establishing the guilt of the accused. It was pointed out by her that, it is evident from the records that the contraband article was seized from a property having an extent of 70 cents of land which was lying without any compound wall and was having access to any person. In such circumstances the conscious possession of the appellant cannot be said to be proved and hence the finding on this issue of the Sessions Court was improper. It was also contended that even though the article was seized on 04.02.2002, it is evident from Ext.P5 property list that the same was produced before the court only on 12.02.2002 and the explanation for the delay was not at all sustainable. It was also submitted by the ``` CRL.A NO. 1933 OF 2007 ``` ``` 5 ``` learned counsel that the prosecution failed to establish the sequence of events from the event of seizure of article till the obtaining of chemical examination report of the sample taken. In the absence of reliable evidence to establish each sequence of events relating to the same, it cannot be concluded that, the sample which was subjected to chemical analysis, was the same sample which was drawn from the contraband article seized from the possession of the appellant. Another contention put forward by the learned counsel is that, even if it is assumed for argument sake that, wash was indeed seized from the possession of the appellant, unless it is established by the prosecution that, the same was kept by the appellant for the purpose of manufacturing liquor, the offence under Section 55(g) could not be attracted. In this case, it was pointed out that, apart from the possession of the article there are no materials to prove that such possession was with the intention to manufacture the liquor in violation of the provisions of the Abkari Act. On that ground also learned counsel challenges the finding of the trial court. 6. On the other hand, learned Public Prosecutor would ``` CRL.A NO. 1933 OF 2007 ``` ``` 6 ``` oppose the aforesaid contentions. It was pointed out that, sufficient materials are available on record in the form of oral evidence of official witnesses and also the documentary evidence such as Ext.P1 mahazar, Ext.P3 arrest memo, Ext.P5 property list, Ext.P6 forwarding note, Ext.P8 ownership certificate and Ext.P9 chemical analysis report. By relying upon the aforesaid evidence, learned Public Prosecutor contends that, an offence has been made out against the appellant herein beyond reasonable doubt and no grounds are in existence warranting any interference in the finding of the court below. 7. The question arises is as to whether the appellant is guilty of commission of offence under Section 55(g) of Abkari Act. PW3 is the detecting officer who is the Excise Inspector of Kattappana Excise Range. He deposed that on 04.02.2002 at about 2.30 p.m. he along with his subordinate officers was patrolling along with places within his Range. While so, he got a reliable information that accused is in possession of wash for manufacturing arrack. Accordingly, he along with the Excise party went to the residence of the appellant and he was ``` CRL.A NO. 1933 OF 2007 ``` ``` 7 ``` present there at the relevant time. On questioning the appellant it was conceded by the appellant that, he had kept hidden the wash on the southern side of his property underneath the soil. Accordingly, the soil was excavated during the course of which a cannas containing the liquid was recovered. On examining it was found that it was wash which is a liquid intended to be used for manufacturing of arrack. Immediately the appellant was arrested and the articles were seized in the presence of independent witnesses. He also stated in examination in chief that the articles were produced before the court on the very same day itself. However, during the cross-examination, he has stated that the articles were produced before the court only on 12.02.2002. It was pointed out by PW3 that, when the articles were produced on 04.02.2002, he was directed to produce the same at a later point of time, as the strike declared by NGOs were to commence from 06.02.2002 onwards. However, he conceded that no endorsements with respect to the production of the articles on 04.02.2002 are made on Ext.P5. 8. PWs 1 and 2 are the independent witnesses who were ``` CRL.A NO. 1933 OF 2007 ``` ``` 8 ``` examined to prove the arrest and seizure of the article. Both of them have attested Ext.P1 mahazar. However, even though both of them admitted the signature in Ext.P1 mahazar, they stated that they did not witness recovery of any contraband article from the property of the appellant. They were declared hostile by the prosecution and were cross-examined. PW4 is the Village Officer who prepared Ext.P7 sketch indicating the location of the property. He also deposed that the property is a non-patta land which is in possession of one Urumbil Sadasivan, the appellant herein. PW5 is the Secretary of Kanchiyar Grama Panchayat and he proved the ownership certificate issued by him as Ext.P8. Ext.P8 indicates that the building which is situated in the property is in the name of the appellant herein. PW6 is the investigating officer who submitted the charge sheet after completing the investigation. Ext.P6 is the forwarding note by which the articles were forwarded for chemical analysis and Ext.P9 is the chemical analysis report. In the chemical analysis report the liquid which was subjected to examination was found to be wash. It is also mentioned in Ext.P9 that, the seals on the packet were intact and found tallied ``` CRL.A NO. 1933 OF 2007 ``` ``` 9 ``` with the sample seal provided. These are the materials adduced by the prosecution to establish the guilt of the accused. 9. One of the contentions put forward by the learned amicus curiae is that the conscious possession of the appellant is not proved by the prosecution. It was pointed out that, the contraband article was recovered from a property having an extent of 70 cents of land which was having access to any person without any proper compound wall. Therefore it was contended that, merely because of the reason that the appellant was in possession of the property as per the Revenue records, it cannot be concluded that he was in possession of the same. However, I am not inclined to accept the aforesaid contention. It is evident from the materials that, the article was seized on the basis of a confession statement made by the appellant himself when he was questioned by the Excise party, which is an admissible peace of evidence under section 27 of the Evidence Act. Since the articles were found concealed in his property, the conscious possession of the appellant is evident from the same. Apart from the above, the presumption under Section 64 of the Abkari Act is also against the ``` CRL.A NO. 1933 OF 2007 ``` ``` 10 ``` appellant. In such circumstances, I do not find any merit in the said contention put forward by the learned counsel for the appellant. 10. Another contention is that even if it is assumed for argument sake that, the appellant was found in possession of wash as alleged by the prosecution, that by itself is not sufficient to attract the offence under Section 55(g) of the Abkari Act. According to the learned counsel, the prosecution has the obligation to prove that such possession was for the purpose of manufacturing arrack or any other illicit liquor. In this case no such evidence is available, contends the learned counsel. However, I am not inclined to accept the said contention as well. This is particularly because, the wash was found in a concealed state in the property of the appellant. If the said article was kept for any other purposes, it was not necessary for the appellant to keep the same hidden beneath the soil in his property. The very fact of concealment itself indicates the mischievous purpose for which the same was kept. It is also a relevant factor to note that wash is not a household material and the only purpose for which the same can be used is to manufacture liquor. Apart from the above, as mentioned ``` CRL.A NO. 1933 OF 2007 ``` ``` 11 ``` above, the presumption under Section 64 of Abkari Act is also stares at the appellant. Even though learned counsel for the appellant placed reliance upon the decisions of this Court in **Santhosh v. State of Kerala [2007 (2) KLT 27]** and an unreported judgment in Crl.A. No.1048/2005, I am of the view that the aforesaid judgments are not applicable to the facts and circumstances of this case. As far as the judgment rendered in **Santhosh** ’s case (supra) is concerned, the article seized in the said case was jaggery and kareenja patta. It is true that in the said judgment it was held that, the prosecution has to prove that, the article was kept in possession of the accused for using it for manufacturing of liquor. It was also held that in the absence of any evidence leading to that, it cannot be assumed that Section 55(g) of the Abkari Act is attracted. However, the factual difference in that case is that the article seized being jaggery, which is a household article there was justification for raising such a contention in that case. As far as this case is concerned, the article is wash which cannot be used for any other house hold purposes. Apart from the above the article was found hidden beneath the soil of the property of the ``` CRL.A NO. 1933 OF 2007 ``` ``` 12 ``` appellant and this is also another factor indicating the guilty mind of the accused. Similarly, in the judgment in Crl.A. No.1048/2005 even though it was held that even in respect of wash the principles laid down in **Santhosh** ’s case (supra) is applicable, the factual circumstances which I have already discussed above are not existing in that case also. In such circumstances, I am of the view that the principles laid down in the above decisions cannot be made applicable to the facts and circumstances of this case. Hence the said contention is not acceptable. 11. Another contention put forward by the learned Amicus curiae is the delay in forwarding the articles to the court. Admittedly the articles were seized on 04.02.2002. Ext.P5 is the property list which contains the endorsement of the court which would indicate that the same was received by the court on 12.02.2002. The explanation offered by PW4 in this regard is that, even though the same was produced on the very same day, it was returned to him on the reason that, as the strike declared by NGOs was supposed to commence from 06.02.2002 onwards. He was directed to produce the same after the ``` CRL.A NO. 1933 OF 2007 ``` ``` 13 ``` strike. The article was happened to be produced before the court on 12.02.2002 in that circumstance. However on perusal of Ext.P5 property list it can be seen that no such endorsement indicating the production of the article on 04.02.2002 is seen made on Ext.P5. In such circumstances, the contention of the learned counsel for the appellant in this regard is having some relevance. The question of delay was considered by this Court by several judgments. **Sukumaran v. State of Kerala [2019 (3) KLT 920], Ravi v. State of Kerala [2011 (3) KLT 353]** and **Vikraman v. State of Kerala [2018** **(1) KLT 822]** are some of the decisions in this regard. The principles that can be deduced from the aforesaid judgments is that the detecting officer has an obligation to produce the article before the court immediately on seizure and without any unnecessary delay. There should be an explanation for the delay when there is delay in production of the property. However, in this case I do not find that the explanation offered by PW3 for delay in production of the article before the court is legally sustainable. As mentioned above, even though it was claimed that it was produced before the court on ``` CRL.A NO. 1933 OF 2007 ``` ``` 14 ``` 04.02.2002 itself, Ext.P5 do not contain any endorsement to that effect. Admittedly the same was produced only on 12.02.2002. In such circumstances, there is no proper evidence as to the nature of custody of the article from the date of seizure till the date of production i.e. from 04.02.2002 to 12.02.2002. In such circumstances, in the light of the lack of proper explanation for the delay, the prosecution case in this regard becomes weaker and hence benefit of doubt has to be given to the appellant in this regard. 12. Another contention of the learned Amicus curiae is with regard to the lack of evidence indicating the identity of the sample. PW3 has clearly stated that immediately upon seizure of the article, he had drawn 500 ml. of the liquor from the contraband article and it was collected in a one litre bottle. The bottle was sealed, labeled and was taken into custody as per Ext.P1 mahazar. However, on going through Ext.P1 mahazar it can be seen that, no sample seal was affixed thereon. Later, as per Ext.P6 the sample bottle was forwarded to the Chemical Analysist for examination. It is seen that in the forwarding note the sample seal is affixed. In Ext.P9 chemical analysis report it is ``` CRL.A NO. 1933 OF 2007 ``` ``` 15 ``` stated that they have verified the sample seal provided and found intact. However, the crucial question that arises is as to whether it was the sample collected on the date of seizure which was subjected to chemical analysis. In order to establish the said fact, each step of the transactions have to be independently proved. When we consider the aforesaid aspect it can be seen that, even though the sample seal is affixed in the forwarding note, it is not seen imposed on Ext.P1 scene mahazar. The question of necessity to have the impression of seal affixed on scene mahazar was considered by this Court in **Moothedath Sivadasan and Another v. State of Kerala [2021 (1)** **KLT 744]** . It was categorically held in the said judgment that, in order to establish the chain of events right from the seizure of the article until the chemical analysis, there must be evidence to show that the sample is drawn from the contraband article seized from the accused. In that case, it was also held that, lack of specimen impression of seal on seizure mahazar is a lacuna in the prosecution case. In this case, on examining the Ext.P1 seizure mahazar it can be seen that no specimen seal is seen imposed upon the same. In the ``` CRL.A NO. 1933 OF 2007 ``` ``` 16 ``` absence of the same, it cannot be safely concluded that the article produced before the court was the same sample drawn from the article seized from the possession of the appellant. The said fact coupled with the delay in production of the article before the court, creates a strong suspicion in the prosecution case. In **Baburaj v. State of Kerala [2021 (6) KHC 92]** this Court considered the question of necessity of strict compliance of statutory requirements for the purpose of holding the accused guilty of the offence under Abkari Act. After elaborately referring to large number of decisions in this regard, it was held that, since the provisions of the Abkari Act are stringent in nature, strict compliance of the statutory procedure is mandatory. Therefore question of substantial compliance is not sufficient. In the light of the aforesaid principles it is absolutely necessary for the prosecution to comply with all legal requirements strictly, for proving the guilt of the accused. In such circumstances, the failure on the part of prosecution to establish clear evidence indicating the fact that the very same sample which was drawn from the article seized from the possession of the appellant was subjected to chemical analysis, is a ``` CRL.A NO. 1933 OF 2007 ``` ``` 17 ``` crucial lacuna. In such circumstances I am of the view that, prosecution failed to establish the guilt of the accused in this case beyond reasonable doubt and hence he is entitled for benefit of doubt. In the above circumstances, I find merit in the contentions put forward by the appellant and accordingly I allow this appeal. In the result, the judgment dated 29.09.2007 in S.C. No.211/2006 of the Additional Judge/Special Judge for NDPS Act Cases, Thodupuzha is hereby set aside and the appellant is found not guilty and he is acquitted of all the charges. ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` SCS ```