Sajeevan v. State of Kerala

**C.R.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942** ## **CRL.A.No.1366 OF 2005** **AGAINST THE JUDGMENT DATED 19-07-2005 IN SC 528/2003 OF THE ADDL. DISTRICT AND SESSIONS (ADHOC) FAST TRACK COURT-I, PATHANAMTHITTA** **APPELLANT/ ACCUSED :** **SAJEEVAN, S/O. BHASKAAN NAIR, AGED 46 YEARS, LAKSHMI BHAVANAM VEEDU, VAZHAMUTTAM KIZHAKKU, VALLIKKODE VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.V.SETHUNATH** **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE, PATHANAMTHITTA POLICE, STATION (CRIME NO. 858/2001), REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.MAYA M.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-09-2020, THE COURT ON 07-10-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.1366/05 ## **-:2:-** ## **C.R.”** ## **JUDGMENT** Dated this the 7[th] day of October, 2020 Appellant was found guilty of possessing arrack. He was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for two years for the offence punishable under Section 8(1) and (2) of the Kerala Abkari Act [for short, 'the Act']. He challenges his conviction and sentence. 2. The prosecution case was that on 22.11.2001, the Sub Inspector of Police, Pathanamthitta Police Station received information that the accused was engaged in the sale of arrack at Vazhamuttam. On the basis of the aforesaid information, when the appellant proceeded towards the place, they found the accused sitting on a culvert on the side of vallikodeVazhamuttam public road in possession of a black can having 5 litres capacity, containing two litres of arrack in it and holding a glass containing smell and sediments of arrack. The prosecution alleged that possession of liquor without authority being a contravention of Section 8(1), the accused had committed the Crl.Appeal No.1366/05 ## **-:3:-** offence punishable under Section 8(2) of the Act. 3. In order to prove the prosecution case, PWs 1 to 5 were examined and Exts.P1 to P8 were marked while material objects like the black can and the glass were marked as Exts.MO1 and MO2. Five witnesses were examined as PWs 1 to 5. After analysing the facts and evidence in the case, the Sessions Judge found that the prosecution succeeded in proving that the accused was in possession of two litres of arrack and accordingly found him guilty and sentenced him to undergo the sentence mentioned earlier. 4. The learned counsel for the appellant Sri.V.Sethunath attacked the judgment of the Sessions Court and contended that the prosecution had miserably failed in establishing possession of illicit arrack with the appellant so as to warrant a finding of guilt under Section 8 of the Act. He further contended that seizure of the alleged contraband article from a public place, without any direct proof of possession with the appellant coupled with the absence of independent witnesses ought to have led the Sessions Court to discard the evidence of the prosecution. The learned counsel also vehemently contended that non-mention in the mahazar of the seal affixed on MO1 and the failure to mark Crl.Appeal No.1366/05 ## **-:4:-** before the court the alleged forwarding note on the basis of which MO1 was sent for analysis to the Forensic Science Laboratory, clearly erodes the credibility of the prosecution case. He relies upon the decisions in **Krishnan H v. State** [2015 (1) KHC 822] and **Prakashan and Another v. State of Kerala** [2016 (1) KHC SN 40] and contended that the prosecution case is not worthy of belief and the accused is entitled to be acquitted. 5. Smt.Maya M.N., the learned Public Prosecutor contended that the possession of the can with the accused was proved through PWs 1, 3 and 5 and that though the forwarding note is not marked in evidence, PW5 had clearly spoken to the sending of the sample along with the forwarding note, the original of which was kept in the case diary but omitted to be marked. She urges this Court to dismiss the appeal and submits that the impugned judgment is well considered and does not warrant any interference. 6. Section 8(1) and (2) of the Act reads thus : _S.8(1)._ _**Prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc. of arrack** – No person shall manufacture, import, export [without permit transit] possess, store, distribute, bottle or sell arrack in any form._ _(2) If any person contravenes any provisions of sub-_ **-:5:-** Crl.Appeal No.1366/05 _section (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than one lakh._ A reading of the said section will evince that the possession of arrack is made punishable with imprisonment up to 10 years and with fine which shall be not less than Rs.1,00,000/-. 7. PW1, who was the Police Constable attached to the Pathanamthitta Police Station, deposed in chief examination in tune with the prosecution case. However, during the crossexamination, he stated that at the time they reached the spot there were approximately 10 people at the site and that all others except the accused left the place on seeing the police party. It was also deposed by him that though MO2 glass was in the hands of the accused, MO1 can was not in his hand but was kept on one side of the culvert. He further stated that he did not see the accused pouring arrack to any person or into MO2 glass. It is also categorically stated in the cross-examination that the can was opened, smelt and tasted only after the accused was arrested. PW2, who was cited as a mahazar witness, and PW4 were declared hostile while PW3 had deposed that no money was recovered from the possession of the accused. PW5 is the Sub Inspector who arrested the accused. In his deposition, he stated Crl.Appeal No.1366/05 ## **-:6:-** that he found the accused sitting on the culvert with a glass in his hand and a black can nearby and noticing his reaction, they stopped him and opened the can. After being satisfied that the can contained arrack, he prepared the inspection memo and the arrest memo and prepared a forwarding note and produced the same before the court. The sample taken by him was sent for chemical examination, on receipt of which it was revealed that the sample contained 32.31% by volume of Ethyl Alcohol. He stated during cross-examination that though the glass contained smell of alcohol and sediments, the same was omitted to be noted in the mahazar. He also mentioned that MO1 was found in a public place and was not in the hands of the accused. He also agreed to the suggestion that there were other persons in the locality who used to indulge in sale of illicit liquor that he had heard other people conducting toddy shops in that locality. 8. The question that arises for consideration is whether the prosecution has proved beyond reasonable doubt that the accused had committed the offence under Section 8(1) and (2) of the Act. 9. Possession of arrack is the gravamen of the charge against the accused. 'Possession' in law is of different types. Crl.Appeal No.1366/05 **-:7:-** There can be actual physical possession as well as constructive possession. Possession of arrack under Section 8 of the Act is penal. When possession is made an offence, under a statute, actual physical possession would invariably satisfy the requirements. However, for constructive possession to become penal in nature, there must be something more than mere deemed possession. There must be an element of consciousness or knowledge of the possession in the person charged with the offence coupled with a power or control over the article. The consciousness or knowledge and power or control are required to be specifically proved. In the absence of specific facts proved, court cannot assume constructive possession on an accused. 10. While dealing with possession under the Arms Act, the Supreme Court held in **Gunwantlal v. State of Madhya Pradesh** [(1972) 2 SCC 194], that “ _the possession of a firearm under the Arms Act in our view must have, firstly the element of consciousness or knowledge of that possession in the person charged with such offence and secondly where he has not the actual physical possession, he has nonetheless a power or control over the weapons so that his possession thereon continues despite physical possession being in someone_ Crl.Appeal No.1366/05 ## **-:8:-** _else....................In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the possession of the thing in question_ .” This proposition has been reiterated recently in **Suresh v. State of Kerala** (2020 (4) KLT 384) Possession and conscious possession are matters of inference to be drawn by the court from the facts and circumstances proved in the case, as held by this Court in **Santosh T.A. and Another v. State of Kerala** (2017 (5) KHC 107). 11. In the instant case, the evidence adduced by the prosecution only goes to show that the accused was sitting on a culvert on the side of a public road with a glass in his hand and a black can nearby. No other evidence to connect the black can with the accused has been adduced by the prosecution. Prosecution failed to adduce any evidence to show that at any point of time before the police party arrived at the scene, the accused had the necessary element of consciousness or knowledge or even dominion or control over the can. Sitting near a black can cannot create a presumption of possession of can, especially in the absence of any specific evidence to create a link Crl.Appeal No.1366/05 ## **-:9:-** between the accused and the can. Possession of arrack has to be proved beyond reasonable doubt by the prosecution in order to bring home the guilt of the accused under Section 8 of the Act. 12. Sitting near a can of arrack by itself cannot create any possession, much less any conscious or constructive possession. The accused could have been sitting near the can of arrack for manifold reasons. In the absence of anything in evidence to connect the accused with the black can of arrack or to prove dominion or control of the accused over the black can, it cannot be held that the prosecution proved beyond reasonable doubt that the accused was in possession of arrack. 13. Apart from the above, as pointed out by Adv.Sri. Sethunath, prosecution had neither produced nor marked the forwarding note involved in the case. The importance of a forwarding note in a prosecution under the Abkari Act is no longer in controversy. A forwarding note is prepared as per Rule 17 of Kerala Chemico Legal Examination Rules, 1959 for certain specific purposes. Section 293 of the Code of Criminal Procedure, 1973 permits the use of reports of Government Scientific Experts as evidence in any enquiry trial or other proceeding under the court. Crl.Appeal No.1366/05 ## **-:10:-** ## 14. Section 293(1)of Cr.P.C. reads as follows: ## **S.293.Reports of certain Governments Scientific** **Experts;** -(1) _Any document purporting to be a report under the hand of a Government Scientific Expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any enquiry, trial or other proceeding under this Code_ . 15. Though the aforesaid section permits the use of reports of government scientific experts in trial, the evidentiary value of such a report received as per Section 293 Cr.P.C. will depend upon two conditions; (1) the sample should be duly sent for chemical examination, and (2) the report should be obtained in the course of any proceeding under the Code. 16. How is a sample of arrack duly sent for chemical examination? Rule 17 of the Kerala Chemico Legal Examination Rules, 1959 ( for brevity, Chemico-legal Rules) prescribes the manner in which samples of arrack and other articles named therein are sent for examination. 17. Section 17(b)(2), (3) & (4) of the Chemico-legal Rules reads thus :- _S. 17(b)(2) In all miscellaneous cases, where samples or thondy articles are required to be examined by the_ Crl.Appeal No.1366/05 ## **-:11:-** _Chemical Examiner, the concerned Police Officer, or Excise Officer shall submit along with the charge sheet, the prescribed application before the court for forwarding the articles to the Chemical Examiner's Laboratory, for examination or analysis as the case may be._ _(3) On the first day of posting of the case the accused person or persons if present or produced before the court and plead not guilty of the offence charged, the complainant Officer in charge of the prosecution shall ensure that material objects or other articles or samples produced before the court, requiring chemical examination, are sent to the Chemical Examiner's Laboratory, on the next working day itself, following the procedure laid down in Rule 30, of Section III._ _(4) The officer charge sheeting the case shall be personally responsible for the proper despatch of all thondy or other articles required to be examined and certified by the Chemical Examiner to Government. If the instructions in sub rule (3) have not been strictly complied with in any case coming under Rule 17(a) the reasons therefore shall be stated in the requisition letter to the Chemical Examiner._ 18. A reading of the above provisions will show that when samples are required to be sent for chemical examination, the officer concerned shall submit the application to court for forwarding the articles for analysis or examination and if the accused pleads not guilty to the offence charged, the officer shall ensure that the samples requiring chemical examination are sent to the Laboratory and such officer shall be personally responsible for the proper despatch. 19. A Forwarding Note will contain details like the quantity Crl.Appeal No.1366/05 ## **-:12:-** and the description of the sample drawn from the contraband, the details of the case, space for providing the sample impression of the seal affixed on the sample taken from the contraband, etc. In the decision in **Smithesh v. State of Kerala** [2019 (2) KLT 974], it was held that the copy of forwarding note must be proved in evidence by the Investigating Officer. Further in **Gopalan v. State of Kerala** (2016 KHC 541) **, Prakashan and Another v. State of Kerala** (2016 (1) KLT SN 96) and in **Sadasivan @ Para v. State of Kerala and Another** (2020 KHC 478), this court had held that non-production of a forwarding note is fatal to the prosecution and that itself is a ground for acquitting the accused. 20. Dealing with the absence of a seal in the forwarding note this court had held in **Prakasan’s Case** (supra) that _“Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the_ Crl.Appeal No.1366/05 ## **-:13:-** _same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.”_ 21. The prosecution did not produce the Forwarding Note or even the copy of the forwarding note in the instant case. PW5 during his evidence deposed that the original of the forwarding note is kept in the case diary. Substantive evidence is absent to prove that the sample drawn from MO1 was the sample sent for chemical analysis. The chain of evidence adduced by the prosecution has snapped. 22. Though ‘break the chain’ has become the prevalent aphorism in society, in legal parlance, a ‘break in the chain’ is detrimental, especially to the prosecution. Absence of the Forwarding Note or even the sample seal in the forwarding note breaks the chain of evidence required to prove the offence under Section 8 of the Act. To prove that it was the very same sample Crl.Appeal No.1366/05 ## **-:14:-** drawn from the article seized that had reached the hands of the Chemical examiner, it is essential to prove the forwarding note with the sample seal on it. The seal must also tally with the seal affixed on the copy and the sample. In the absence of the forwarding note in the instant case, a break in the chain has occurred. No evidentiary value can be given to Ext.P8 chemical examiners report. Viewed in the above perspective, prosecution has failed to prove beyond reasonable doubt the possession of arrack with the accused. 23. In the above circumstances, the conviction and sentence imposed on the appellant as per judgment dated 19.07.2005 in SC No.528 of 2003 on the files of the Additional District & Sessions Court (Ad-hoc) Fast Track Court-I, Pathanamthitta is set aside. The appellant is set at liberty, and the bail bond, if any, executed by the appellant is cancelled. This criminal appeal is allowed. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM