Santosh s/o Ayyappan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943** **CRL.A NO. 2182 OF 2006** **AGAINST THE JUDGMENT IN SC 364/2004 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-II, THODUPUZHA, IDUKKI** **APPELLANT/ACCUSED:** **SANTHOSH S/O.AYYAPPAN, THEKKEPURATHU VEETTIL, UDUMBANNOOR KARA, UDUMBANNOOR VILLAGE.** **BY ADV SRI.S.RAJEEV** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, MUNAR, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** . **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.2182 of 2006 2 **'C.R.'** ## **K.BABU, J.** **========================= Crl.A No.2182 of 2006** **==========================** _Dated this the 9[th] day of August, 2021_ ## _**JUDGMENT**_ Challenge in this appeal is to the judgment dated 13.10.2006, passed by the Additional Sessions Judge (Adhoc) II, Thodupuzha, in S.C.No.364/2004. By the impugned judgment, the appellant/accused has been convicted of the offence punishable under Section 55(g) of the Abkari Act. 2. The prosecution case is that on 15.8.2002, at 6.45 pm., the accused was found in possession of 5 litres of wash in his house bearing No.UP 1/560 situated at Udumpannoor. The Sub Inspector of Police, Karimannoor Police Station detected the offence. 3. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 55(g) of the Abkari Act before the Judicial First Class Magistrate Court I, Thodupuzha. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the Crl.A No.2182 of 2006 3 Additional Sessions Court (Adhoc) II, Thodupuzha. On appearance of the accused, charge was framed against him for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4, Exts.P1 to P10 and MOs1 to 4. 5. 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. Ext.D1 was marked from the side of the accused. The learned trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 55(g) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of three months and to pay a fine of Rs.1,00,000/-. 6. Heard Sri.S.Rajeev, the learned counsel appearing for Crl.A No.2182 of 2006 4 the accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the accused canvassed the following grounds to challenge the judgment of conviction: a) The prosecution failed to establish the identity of the person, who was in possession of the contraband substance at the place of occurrence. b) The exclusive possession of the contraband substance by the accused has not been established by the prosecution. c) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence eventually reached the hands of Analyst at the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the Crl.A No.2182 of 2006 5 accused are sustainable or not. ## THE POINT 10. The detecting officer (PW3) gave evidence that on 15.8.2002, while he was on patrol duty, he got a reliable information that wash and other utensils for distilling arrack were kept in the residence of one Ayyappan, Thekkepurathu, Udumpannoor. PW3 prepared Ext.P9 search memorandum and proceeded to the house of Sri.Ayyappan. He searched the residence and recovered a steel vessel containing 5 litres of wash in the room on the southern side of the kitchen. A mud pot with holes fitted with a hose for the distillation of arrack was also found. The accused was available in the house. PW3 seized the contraband substance and other articles as per Ext.P1 seizure mahazar. The accused was arrested. Ext.P2 search list was prepared by PW3. He gave evidence that sample was collected from the wash seized and the residue was destroyed then and there. PW3 registered Crime No.152/2002, alleging offence punishable under Section 55(g) of the Abkari Act. PW1, an independent witness, gave evidence that the police party led by PW3 came to the place of occurrence on the relevant day and effected seizure as pleaded by the prosecution. PW1 did not Crl.A No.2182 of 2006 6 support the case of the prosecution that the accused was arrested from his residence. According to PW1, he found the accused along with the police team when they left the scene. PW2, the then Village Officer, Udumpannoor was examined to prove Ext.P3, a statement he had given to the investigating officer during the course of investigation, informing that the accused was a resident of the building in question. PW4 conducted investigation and submitted final report. 11. The learned counsel for the accused contended that the prosecution failed to give convincing evidence on the identification of the accused. The learned Public Prosecutor submitted that as the accused was arrested from the spot, the challenge on the identity of the accused will not sustain. The learned counsel for the accused submitted that no witnesses testified in the court identifying the accused. It is further contended that the alleged arrest is doubtful in view of the incorporation of crime number in Ext.P4 arrest memo stated to have been prepared at the scene of occurrence. 12. The substantive evidence of identification, of an accused by a witness, is the evidence given by the witness during the trial identifying the accused as the person who committed the Crl.A No.2182 of 2006 7 alleged act. PWs 1 and 2, the witnesses examined to prove the incident proper, failed to give statement in the court identifying the accused as the person who was found in possession of the contraband substance. 13. The learned counsel for the accused disputed the arrest of the accused. He mainly relied on the presence of the crime number in Ext.P4 arrest memo to contend that the arrest of the accused at the spot is doubtful. Ext.P4 contains the number of the crime (No.152/2002) registered against the accused. 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 Crl.A No.2182 of 2006 8 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(3) KHC 715)]_ . 16. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P4 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 17. The accused faces charge under Section 55(g) of the Abkari Act. Section 55(g) of the Abkari Act reads thus: _“55. For illegal import, etc.- Whoever in contravention of this Act or of any rule or order made under this Act ….............._ _.........................................._ _(g) uses, keeps, or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug;_ _….................... shall, be punishable_ _(1) for any offence, other than an offence falling clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh, and............”_ 18. Going by the above definition, the prosecution has to establish that the accused used, kept or had in his possession any Crl.A No.2182 of 2006 9 materials, still, utensils, implement or apparatus for the purpose of manufacturing liquor in order to attract Section 55(g). 19. The learned counsel for the accused contended that the prosecution failed to establish the possession of the contraband substance by the accused. The learned counsel for the accused relied on the evidence that the building, from where the contraband substances were recovered, was in the joint possession of the accused, his father, brother and mother to substantiate his contention. It is contended that only if the prosecution establishes that the accused had exclusive dominion and control of the contraband substance allegedly recovered from the building, he can be found to be in possession of the same, so as to attract the offence alleged. 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._ Crl.A No.2182 of 2006 10 _'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 **G** _**unwantlal 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 successfully prove that accused has control or dominion over such property. Such Crl.A No.2182 of 2006 11 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. It is the admitted case of the prosecution that the building from where the contraband substance was recovered was in the occupation of the accused, his father, mother and wife. Ext.D1 ration card substantiates the case of the accused that he was not in the exclusive possession of the building. PW3 has given evidence that at the time of search, the accused, his father, mother and wife were present in the residence. 25. The prosecution relied on Ext.P3, a statement given by the Village Officer concerned to the investigating officer informing that the building was in the possession of the accused. Ext.P3 statement can only be treated as a statement made by the Village Officer as provided in Section 161 Cr.P.C. The statement made by a witness to the police cannot be brought on record as it is barred under Section 162 Cr.P.C. Therefore, Ext.P3 has no evidentiary value. 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 Crl.A No.2182 of 2006 12 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. 27. In the instant case, the prosecution failed to establish that the accused had actual control over the contraband substance allegedly recovered from the kitchen room of his house. Resultantly, the prosecution failed to establish possession of the contraband substance by the accused. 28. The further contention of the learned counsel for the accused is that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence was eventually subjected to analysis in the Chemical Examiner's laboratory. The learned counsel relied on the following circumstances to substantiate his contention: Crl.A No.2182 of 2006 13 i) The detecting officer has not given evidence as to who had drawn the sample at the scene of occurrence. ii) PW3 failed to give evidence as to the name of the official with whom the articles including the sample were forwarded to the court. iii) There is no convincing evidence as to the name of the official who received the bottle containing the sample from the court and delivered the same to the Chemical Examiner's laboratory. 29. I have gone through the oral evidence of PW3, which is silent about the official who had actually drawn the sample at the scene of occurrence. PW3 has given evidence that he had sent the articles including the sample to the court. He failed to mention the name of the official who produced the articles before the court. The name of the official with whom the sample was forwarded to the Chemical Examiner's laboratory was required to be mentioned in the copy of the forwarding note. In the instant case, Ext.P7 copy of the forwarding note does not contain the name of the person with whom the sample was forwarded to the laboratory. Even the date on which the sample was sent to the Crl.A No.2182 of 2006 14 Chemical Examiner's laboratory is not mentioned in Ext.P7. The learned Magistrate, who put his initial omitted to write the date on which he made his initials in Ext.P7. Ext.P8 would show that a Police Constable No.1823 delivered the sample to the Chemical Examiner's laboratory. The necessary conclusion is that the sample changed several hands before it reached the hands of the Analyst in the Chemical Examiner's laboratory. The sample remained in the custody of the police official who produced the same before the court, the property clerk of the court and the police official who handed over the same to the Chemical Examiner. These officials were not examined by the prosecution to prove that while in their custody, the seal was not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period -a fact which had to be proved affirmatively by the prosecution [See: _**State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314)_ ] 30. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested Crl.A No.2182 of 2006 15 have to be co-related. 31. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 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 benefit of doubt arising from the absence of link evidence as discussed above. 32. 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 found not guilty of the offence punishable under Section 55(g) of the Abkari Act. In the result, - (i) the Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the charge ; Crl.A No.2182 of 2006 16 (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/-** **K. BABU JUDGE** **ab**