Shiju Augustine v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA,** **1943** **CRL.A NO. 1684 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 489/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)III, MANJERI, MALAPPURAM APPELLANT/S:** **SHIJU AUGUSTINE, KOLLAMKUNNEL HOUSE, PERAMBRA, KOZHIKODE.** **BY ADV SRI.P.V.ANOOP** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR** **OTHER PRESENT:** **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- Crl.Appeal No. 1684 of 2008 ## **JUDGMENT** Aggrieved by the judgment dated 31.7.2008 passed by the learned Additional Sessions Judge Fast Track No.III (Adhoc), Manjeri in Sessions Case No.489 of 2006, 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 10.12.2002, a Preventive Officer of Excise Range, Nilambur (PW1) found a mini lorry bearing Registration No.KL-11B/5948 at Onakkamanna on the side of the road carrying 840 litres of Indian Made Foreign Liquor kept in 70 wooden cases. The accused was the registered owner of the vehicle involved. 4. The Excise Inspector, Nilambur registered crime No.29 of 2002 against the accused. 5. After the completion of investigation, final -3- Crl.Appeal No. 1684 of 2008 report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate, Nilambur. The case was committed to the Sessions Court, Manjeri from where it was made over to the Trial Court. On 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 levelled against him and therefore, he came to be tried by the Trial Court for the aforesaid offence. 6. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P12. Exts.D1 and D2 were marked on the side of the accused. 7. 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 -4- Crl.Appeal No. 1684 of 2008 adduce evidence, if any, he may have in support thereof. The Trial Court, after hearing the arguments addressed from both sides, found that the accused is guilty of offence under Section 55(a) of the Abkari act and he was convited thereunder. The accused was sentenced to undergo Simple Imprisonment for a term of two years and to pay a fine of Rs.1 lakh. 8. Heard Sri.P.V.Anoop, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant/accused contended that the prosecution has failed to establish the conscious possession of the contraband substance allegedly seized from the vehicle involved in this case. 10. The learned Public Prosecutor submitted that materials are sufficient to establish the charge against the accused. 11. The only point that arises for consideration is -5- Crl.Appeal No. 1684 of 2008 whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## The Point 12. Sri.P.C.Kurian, the Excise Preventive Officer, Nilambur Range (PW1), detected the offence. He has given evidence that on 10.12.2002, on getting information that a mini lorry bearing Reg.No.KL-11B/5948 was parked in a suspicious circumstance on the road side at Onakkamanna, the Excise team led by him proceeded to the place of occurrence. PW1 searched the vehicle and found that it contained 840 bottles of Indian Made Foreign Liquor packed in 70 wooden cases, concealed below packets containing grapes. Nobody was found in the control of the vehicle. PW1 found out photostat copies of five pages of the RC Book of the vehicle, the insurance certificate and the Goods Vehicle Record (GVR) in respect of the vehicle. PW1 seized the vehicle, the contraband substance found therein and the above referred documents in respect of the vehicle. PW1 collected liquor from -6- Crl.Appeal No. 1684 of 2008 different bottles in three 180 ml bottles and sealed the same to be used as samples. 13. PW2, the Excise Official who had accompanied PW1 in the search and seizure supported the prosecution. 14. PW3 registered crime against the accused and produced the properties including the samples before the Court. 15. PW4, the then Joint RTO, Koyilandy, gave evidence that as per the RC particulars in respect of the vehicle, the accused was the owner of the same. 16. PWs 5 and 6, the independent witnesses, did not support the prosecution. PW7 conducted investigation and submitted final report. 17. The learned counsel for the accused contended that the prosecution failed to establish the conscious possession of the contraband substance allegedly seized from the place of occurrence. It is submitted that though the accused was the registered owner of the -7- Crl.Appeal No. 1684 of 2008 vehicle, he had no knowledge regarding the contraband substance found in the vehicle. The learned counsel relied on Exhibit D1, a complaint filed by him on 13.12.2002 alleging theft of the vehicle. 18. The learned Public Prosecutor submitted that the lodging of complaint by the accused can only be treated as after thought as he preferred such a complaint only three days after the incident and five days after the alleged theft. 19. The fundamental question to be considered in this case is whether the prosecution established the conscious possession of the contraband substance by the accused. 20. Only conscious possession of the contraband substance by the accused would attract the offence punishable under Section 55(a) of the Abkari Act. The prosecution has to establish that the accused had the intention to possess and transport the contraband -8- Crl.Appeal No. 1684 of 2008 substance as alleged. 21. Going by the prosecution records, it is evident that the prosecution has no case that the accused had intentionally possessed the contraband substance in the vehicle involved or that the contraband substance was transported with his consent and knowledge by somebody else. 22. In _**Sony C. Mathew v. State of Kerala**_ (2007 KHC 4187) this Court held that in the absence of any specific allegation attributing any role to the accused for the commission of the offence, on the sole ground that he was the registered owner of the vehicle no charge under Section 55(a) will lie. 23. In _**Sooraj v. Excise Inspector**_ (2002 KHC 656) this Court held that in the absence of any specific provision under the Abkari Act which casts a liability on the owner of the vehicle for the offences committed on using that vehicle no charge under the penal provision of -9- Crl.Appeal No. 1684 of 2008 Abkari Act will lie against him. 24. In the context of the offence under Section 55(g) of the Abkari Act this Court in _**Santhosh v. State of Kerala**_ [2021 (5) KHC 214] while dealing the question of possession 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 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 -10- Crl.Appeal No. 1684 of 2008 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.” 25. In the instant case, the prosecution failed to establish that the contraband substances were transported in the vehicle owned by the accused with his knowledge and consent. Therefore, the prosecution failed to establish the conscious possession of the contraband substances by the accused. 26. Going by the evidence of the detecting officer, he has not given evidence as to the nature of the seal affixed on the bottles containing the sample. In _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296) and in _**Krishnadas v. State of Kerala**_ (2019 KHC 191) this Court held that, the detecting officer who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample and that the nature of the seal used shall be mentioned in the -11- Crl.Appeal No. 1684 of 2008 seizure mahazar. 27. The prosecution has not given evidence as to the date on which the bottles containing the sample were forwarded to the Chemical Examiner. Ext.P12 certificate of chemical analyses would show that three bottles containing the sample were forwarded to the laboratory as per letter dated 11.12.2002 of the Judicial First Class Magistrate, Nilamboor. As per Ext.P12, the sample reached the laboratory only on 24.12.2002. Ext.P12 would further show that the samples were delivered to the laboratory through Excise Guard by name C.K.Nasar. Neither the property clerk, the custodian of the properties including the sample nor Sri.C.K.Nasar, was examined as witness. In the absence of any evidence regarding the date on which the battles containing the sample were handed over to Sri.C.K.Nasar, this Court has to infer that the bottles containing the sample were forwarded to the laboratory on 11.12.2002. The delay occurred in bringing the sample to the laboratory has not -12- Crl.Appeal No. 1684 of 2008 been explained by the prosecution. While dealing with a similar fact situation this Court in _**Viswanadhan v. State of Kerala**_ (2016 (3) KHC 38) held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 28. The sample remained in the possession of the property clerk of the Court and the Excise Guard Sri.C.K.Nasar, who delivered the sample to the laboratory. The prosecution failed to examine these officials to prove that the seals on the sample were not tampered with while they were in their custody. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. (See _**State of**_ -13- Crl.Appeal No. 1684 of 2008 ## _**Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314]). 29. Yet another aspect to be considered is the delay in the analyses of the sample. The samples reached the laboratory on 24.12.2002. The samples were analysed in the laboratory only on 11.02.2004. While dealing with the question of delay in analysis of the sample 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.” 30. The delay of more than one year in the analyses of the sample remains unexplained, the benefit of which must go to the accused. -14- Crl.Appeal No. 1684 of 2008 31. In _**Vijay Pande 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 to be corelated. 32. 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 said to have been seized from the possession of the accused (vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]). 33. 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 prosecution also failed to establish the conscious possession of the contraband substances -15- Crl.Appeal No. 1684 of 2008 allegedly recovered from the vehicle involved. Resultantly, the accused is entitled to benefit of doubt. 34. 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 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** das