Sasidharan S/o Appukuttan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943** **CRL.A NO. 599 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC NO. 282/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** **CP 5/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA** ## **APPELLANT/ACCUSED:** **SASIDHARAN, S/O APPUKUTTAN, PANACHUVATTIL HOUSE, AYYAPPAKOVIL VILLAGE,, VELLILAMKANDOM KARA. BY ADV JOICE GEORGE** ## **RESPONDENTS/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. NOUSHAD K A- SR. PP** **THIS CRIMINAL APPEAL HAVE BEEN FINALLY HEARD ON 04.02.2022, THE COURT ON 04.03.2022 DELIVERED THE FOLLOWING:** Crl.A No. 599 of 2006 **2** ## **JUDGMENT** Appellant is the sole accused in S.C.No.282/2004 on the files of the Court of the Additional Sessions Judge (Adhoc)-II, Thodupuzha. The aforesaid case arises from Crime No.370/2001 of Kattappana police station, which was registered against the appellant for the offence punishable under Section 55(a) and 8(2) of the Abkari Act. 2. The prosecution case is as follows; On 11.07.2001 at about 2.50 p.m., the Sub Inspector of Police, Kattappana upon receiving information that illicit sale of arrack is being conducted in a shop, he along with the police party conducted a search in the said premises. During the course of search, accused was not there but 20 litres of illicit arrack was seized there from. Later the accused was arrested on 06.09.2001. Articles seized were produced before the court and upon completing the investigation, final report was submitted before the Judicial First Class Magistrate Court, Kattappana where the case was taken on file as C.P.No.5/2002. Upon completing the legal formalities, the matter was committed to Court of Sessions, Thodupuzha and later the same was made over to Assistant Sessions Court, Kattappana for trial. Thereafter, the same Crl.A No. 599 of 2006 **3** was made over to Additional Sessions Court Adhoc-II, Thodupuzha where the case was tried as S.C.No.282/2004. 3. In support of the prosecution, they have examined Pws 1 to 5, marked Exts.P1 to P7 and Mos 1 to 3 were identified. After closure of the prosecution evidence, the appellant was questioned under Section 313 of the Cr.P.C. and the incriminating materials brought out during the course of trial were put to him. Appellant denied all the said materials and pleaded innocence. The defense examined DW1 in support of their case. After considering the entire materials placed on record, the learned Sessions Judge found that the accused is guilty and he is sentenced to undergo rigorous imprisonment for 2 years and fine of Rs.1,00,000/-. The default sentence imposed upon him for failure to pay fine is rigorous imprisonment for 3 months. This appeal is filed challenging the aforesaid order of conviction and sentence. 4. Heard Sri. Joice George the learned counsel appearing for the appellant and Sri.Noushad. K.A the learned Public Prosecutor appearing for the State. 5. The learned counsel for the appellant submits that the appellant is innocent of all the allegations and the prosecution ## Crl.A No. 599 of 2006 **4** miserably failed in establishing the guilt of the accused. He mainly contends that the materials available on record are not sufficient to establish that the seizure effected by the police was from the shop room owned by or in possession of the appellant. He points out that the only evidence in this regard is Ext.P6 and the deposition of PW5, which would not prove the possession of the appellant over the said building in question. The learned counsel also place reliance upon the decision of this Court in _**Santhosh v. State of Kerala**_ [2021 (5) KHC 214 : 2021 KHC Online 502]. 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions and submit that the prosecution clearly established the guilt of the accused on the strength of evidence adduced and no interference is warranted. 7. The crucial question that arises here is whether the prosecution is successful in proving the possession of the contraband article by the appellant herein. PW1 is the detecting officer, who was the Sub Inspector of Police, Kattappana police station at the relevant time. His evidence indicates that on 11.07.2001, he got an information that the appellant herein is conducting sale of illicit arrack in his shop room situated in Kanchiyar Grama Panchayath. Crl.A No. 599 of 2006 **5** Immediately he along with the police party went to the said shop room, which is at Vellilamkandam city and upon reached there, they found the shop room locked. As they were informed that the appellant went to his house for having lunch, the police party went to his residence. However, on seeing police party, the appellant took to his heels from his house and therefore they came back to the shop room. Thereafter, they broke open the shop room and they found a mug and a glass with the smell of arrack. They also found a pet bottle having capacity of 750ml filled with a liquid. On examining the same, they realized it as arrack. On further investigation, they found out two cans having 10 litres of capacity each filled with arrack. Immediately, articles were seized by preparing Ext.P1 mahazar in the presence of witnesses and the same were produced before the court. 8. Pws 2 and 3 are the independent witnesses who attested Ext.P1 mahazar. PW2 is running a tea shop at Vellilamkandam. Even though he admitted the signature in Ext.P1 mahazar prepared by PW1, he denied the seizure of any article as stated in Ext.P1. He has stated that he did not see the police searching the shop of the accused and seizing the arrack. He was declared hostile by the prosecution. PW3 is an autorickshaw driver at Vellilamkandaom. He ## Crl.A No. 599 of 2006 **6** also admitted his signature in Ext.P1 mahazar but the fact of seizure as mentioned in Ext.P1 is denied. Thus evidence of PWs 2 and 3 do not render any assistance to the prosecution in establishing the guilt of the accused. 9. PW4 is the Additional Sub Inspector of police who conducted the investigation. According to him, he investigated the case and to establish the legal possession of the shop room by the appellant, he procured Ext.P6 certificate from the Kanchiyar Grama Panchayath which would indicate that the shop room bearing door No.XI/566 is belonging to the appellant herein. PW5 is the Secretary of the Kanchiyar Grama Panchayat who issued Ext.P6 certificate. He has stated that Ext.P6 was issued certifying that the building bearing No.XI/566 is in the name of Sri.Sasi Panachuvattil. It is also stated by PW5 that, the aforesaid door number was assigned in the said name while preparing voters list. He has also stated that no license was issued in favour any person for conducting any business in the said shop room. PW5 has also stated that the Panchayat also maintain an assessment register for recording the details of door numbers. 10. DW1 was the Secretary of the Kanchiyar Grama Panchayath at the time when the trial was conducted. He has stated Crl.A No. 599 of 2006 **7** that the building No.XI/566 is not included in the assessment register. He has also stated that in respect of the buildings which are situated in 'Poramboke' land, along with the building number the word “UA” will also be mentioned. However, in this case only No.566 is mentioned. 11. Specific case put forward by the learned counsel for the appellant is regarding the lack of materials in support of the prosecution case as to the ownership and possession of the appellant over the building in question. Only evidence available on record is Ext.P6 which is marked through PW5. The reading of Ext.P6 would show that the building in question stands in the name of one Sashi Panachuvattil house. However, further details such as the name of the father of the said person or the address which are the crucial identifying features of a person are lacking in the said certificate. It is also a relevant aspect that the name of the appellant is Sasidharan S/o Appukuttan, where as the name mentioned in Ext.P6 is Sashi Panachuvattil. There is some clear difference or in -completeness in the description of the person in whose the name the aforesaid building number is seen allotted. Apart from the above, it is also evident Crl.A No. 599 of 2006 **8** from the depositions of PW5 as well as DW1 that the building number does not find a place in assessment register and the said name was assigned in the name of Sashi for the purpose of preparing voters list. It is also discernible that, the voters list is normally prepared in the address where the person is residing. In this case, it is discernible from Ext.P1 mahazar that the building in question is a shop room and no person is residing there. No voters list was also produced by the prosecution to substantiate that consequent to the assignment of the building number as claimed by PW5, a voters list including the person named in Ext.P6 is included in the voters list. 12. The appellant is accused of having in possession of illicit arrack and therefore the crucial act which attracts offence is his possession. The prosecution has an obligation to establish the conscious possession on the part of the accused for proving the guilt of the accused. On scanning through the materials available on record, the only evidence adduced by the prosecution is Ext.P6 which is marked through PW5. Even going by Ext.P6, it can be seen that the aforesaid number was assigned for a residential building for the purpose of preparing Census and voters list in Kanchiyar Grama Panchayath. The name mentioned in the said certificate is Sashi Crl.A No. 599 of 2006 **9** Panachuvattil house which is incomplete as well. The name of the appellant/accused is slightly different than mentioned in Ext.P6. In addition to the above, even though it is stated by PW5 as well as DW1 that, the details of the building number and the person in whose ownership the said building is in existence, would be there in the assessment register, no assessment register is seen produced. The ownership over the property wherein the aforesaid shop room is situated is also not proved and there is not even a single piece of evidence indicating the same. Lack of any materials in respect of the same coupled with the discrepancies and the differences in the description of the owner of the building in question as contained in Ext.P6 would only make the contentions of the appellant stronger and thereby indicating a serious lacuna in the prosecution case. In _**Santhosh’s**_ case (Supra) this court observed as follows: _“ The accused faces a charge that attracts stringent punishment. A balance, thus, must be struck while constructing the meaning of a word in the statue ('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_ Crl.A No. 599 of 2006 ## **10** _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.”_ 13. As mentioned above, since the basis of allegation against the appellant is the possession of the contraband articles, the prosecution has a duty to establish the same by reliable and unimpeachable evidence. In this case, as mentioned above, Ext.P6 coupled with the evidence of PW5, does not serve the purpose of proving the said aspect. No other evidence are available indicating that the appellant was in possession or ownership of the shop room from where the contraband article were seized. It also evident that the presence of the appellant was not there when the articles were seized. No evidence was adduced by the prosecution to establish that the appellant was conducting any activity in the premises from which the contraband articles were seized. In such circumstances, the only conclusion possible is that the prosecution failed in establishing the guilt of the accused. In the said circumstances, I am of the view Crl.A No. 599 of 2006 **11** that the finding of the learned Sessions Court holding appellant guilty is liable to be interfered with. In the result, this criminal appeal stands allowed and the appellant is found not guilty. Accordingly, the judgment passed by the Additional Sessions Judge Adhoc-II, Thodupuzha on 27.01.2006 in S.C.No.288/2004 is set aside and the appellant is acquitted from all the charges leveled against him. Sd/- **ZIYAD RAHMAN A.A,** rps/ **JUDGE**