Sivadasan v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR ``` ``` FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 ``` ``` CRL.REV.PET NO. 1011 OF 2013 ``` ``` AGAINST THE JUDGMENT DATED 21.02.2013 IN Crl.A NO.4 OF 2012 OF SESSIONS COURT, KOZHIKODE ARISING OUT OF THE JUDGMENT DATED 17.12.2011 IN SC NO.387 OF 2008 OF III ADDITIONAL ASST. SESSIONS ``` ``` COURT, KOZHIKODE ``` ``` REVISION PETITIONER/APPELLANT/ACCUSED: ``` ``` SIVADASAN, S/O.CHAYICHAN, VALASSERI HOUSE, PANNIYANKARA AMSOM, THIRUVANNUR DESOM, KOZHIKODE ``` ``` BY ADV SRI.P.V.ANOOP ``` ``` RESPONDENT: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. ``` ``` OTHER PRESENT: ``` ``` SRI.VIPIN DAS-PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.03.2025, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING: ``` 2 Crl.R.P.1011/2013 ``` 2025:KER:27627 ``` **==> picture [58 x 58] intentionally omitted <==** ## **ORDER** This criminal revision petition is preferred impugning the judgment of the learned Sessions Court, Kozhikode in Crl.A.No.4/2012. 2. The revision petitioner herein is the sole accused in Crime No.6/2007 of Feroke Excise Range registered for offence punishable under Sections 55(g) of the Abkari Act. 3. The prosecution case is that, when the Excise Inspector, Feroke, conducted a search in the house of the revision petitioner/accused based on reliable information, he was found in possession of 20 liters of wash in a bucket having capacity of 20 liters, which is the key ingredient used in the distillation of arrack. The accused was arrested at the spot with seized articles. 4. The trial court convicted and sentenced the accused to undergo simple imprisonment for one month and to pay fine of Rs.1,00,000/- and in default, to undergo simple imprisonment for four months. 5. The appellate court dismissed the appeal confirming the conviction and sentence. 6. Impugning the judgment of the learned Sessions Judge, Kozhikode, the accused preferred this revision. Crl.R.P.1011/2013 3 7. Before the trial court, PWs.1 to 6 were examined and Exts.P1 to P9 were marked. PW5 is the Excise Inspector attached to Excise Range Office, Feroke who detected the case. PW1 is the officer who accompanied him. PW.2 is an independent witness to the mahazar who turned hostile to the prosecution. PW4 is the Village Assistant who prepared Ext.P3 site plan. PW6 completed the investigation and filed final report. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The trial court, after full fledged trial, convicted and sentenced the revision petitioner as aforesaid. 8. I have heard Adv.Vipindas, learned Public Prosecutor and Adv.P.V.Anoop, learned counsel appearing for the revision petitioner. 9. The learned Public Prosecutor submitted that the impugned judgment is legally sustainable and no interference, whatsoever, is warranted in this matter. He further submitted that the prosecution has succeeded in alleging and proving the charge against the revision petitioner. 10. Per contra, learned counsel for the revision petitioner submitted that the impugned judgment is illegal, irregular and improper. Both the trial court and the appellate court had failed to note the 4 Crl.R.P.1011/2013 ``` 2025:KER:27627 ``` **==> picture [58 x 58] intentionally omitted <==** illegalities and improprieties in this case. 11. The learned counsel further submitted that the prosecution has failed to allege and prove the charge against the accused beyond reasonable doubt. He submitted that the penal statutes are to be interpreted strictly within the four corners of the statute. Suspicion, however strong it may be, it would not be a substitute for proof. The impugned judgment is based on surmises and conjectures. 12. It is well settled that the revisional court cannot act as an appellate court and the power of the revisional court under Sections 397 to 401 Cr.P.C cannot be equated with the power of an appellate court. In **State of Kerala v. Puttumana Illath Jathavedan Namboodiri [(1999) 2 SCC 452 = 1999 SCC (Cri) 275],** the Honourable Supreme Court held thus: “5. … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the Crl.R.P.1011/2013 5 evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ...” ## 13. In **Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [(2015) 3 SCC 123 = (2015) 2 SCC (Cri) 19],** the Honourable Supreme Court held thus: “14. … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.” 6 Crl.R.P.1011/2013 ``` 2025:KER:27627 ``` **==> picture [58 x 58] intentionally omitted <==** 14. Before further discussion, it may be fruitful to extract the relevant section: “ **55. For illegal import, etc.** - Whoever in contravention of this Act or of any rule or order made under this Act - (a) imports, exports, [transports, transits or possesses] liquor or any intoxicating drug; or - (b) Manufactures liquor or any intoxicating drug; - (c) x x x - (d) taps or causes to be tapped] any toddyproducing tree, or - (e) draws or causes to be drawn] toddy from any tree; or - (f) constructs or works any [distillery, brewery, winery or other manufactory in which liquor is manufactured; or - (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; or - (h) bottles any liquor for purposes of sale; or (i) Sells or stores for sales liquor] or any intoxicating drug; - shall be punished.-” 15. I have heard the rival submission of the counsel for the parties and perused the records. 16. The first submission by the learned counsel for the revision petitioner is that the prosecution has failed to allege and prove that the revision petitioner/accused was in conscious possession of the contraband articles. The prosecution has no evidence to show that the Crl.R.P.1011/2013 7 house and the property from where the articles were allegedly seized belonged to the accused. He has placed reliance on a decision reported in **Santhosh v. State of Kerala [2021(5) KHC 214]** . In **Santhosh** ’s case (supra), this Court observed that, the inevitable factor to be proved by the prosecution to establish possession is, dominion or control over the contraband articles by the accused in proving the offence punishable under Section 55(g) of he Abkari Act. 17. The learned Public Prosecutor resisted this argument and submitted that, in the instant case, the revision petitioner was found engaged in stirring the wash which is a raw material for distilling arrack in the compound of his house. Therefore, it is immaterial to produce the ownership certificate of the house or property. The relevant paragraphs of **Santhosh** ’ case (supra) are extracted hereunder: “20. The word 'possession' is not defined in the Abkari Act. The Halsbury's Laws of England, (5th 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. 8 Crl.R.P.1011/2013 ``` 2025:KER:27627 ``` **==> picture [58 x 58] intentionally omitted <==** '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: 2011 (2) KLD 232: 2011 (3) KLT 627: 2011 (3) KLJ 477)]. 22. In Gunwantlal v. State of M.P. (1972 KHC 464: (1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756: 1972 CriLJ 1187), the Apex Court in the context of S.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 possession is referred to as 'constructive possession'. [See: Gunwantlal v. State of M.P in 1972 KHC 464: (1972) 2 SCC 194 (1972 SCC (Cri) 678 : AIR 1972 SC 1756 : 1972 CriLJ 1187) Halsburys laws of England (supra)]". 18. The learned counsel for the revision petitioner further submitted that, there was no impression of specimen seal in Ext.P2 property list and this is a circumstance creating doubts in the prosecution story. Crl.R.P.1011/2013 9 19. The learned counsel for the revision petitioner further submitted that the inventory prepared by the excise officials is not in accordance with Section 53A of the Abkari Act. It is submitted that, even though Ext.P8 inventory was prepared by the officer authorized, the photographs of the contraband articles were not taken and certified under Section 53A(2)(b) of the Act. 20. I do not find much force in the arguments advanced by the learned counsel for the revision petitioner. Moreover, I do not find any illegality or perversity in the findings of the trial court and the appellate court. The trial court and the appellate court correctly appreciated the evidence and arrived a proper conclusion, in my view. The revision petitioner was preparing wash which is the key raw material for the preparation of arrack and which is a portable liquor containing alcohol. 21. The learned counsel for the petitioner further submitted that the petitioner is aged more than 76 years and suffering from various old age ailments and therefore, prays for leniency in the sentence. 22. The sentence imposed in this case is not harsh and excessive, so also the fine. However, considering the facts and circumstances of the case and the extreme old age of the petitioner, I am of 10 Crl.R.P.1011/2013 **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27627 ``` the view that the default sentence can be modified and reduced to simple imprisonment for 15 days. In the result, - (i) The Criminal revision petition is allowed in part. - (ii) The sentence imposed in this matter is maintained. - (iii) The fine imposed is also maintained. - (iv) The default sentence of simple imprisonment for four months is reduced to simple imprisonment for 15 days. - (iv) The trial court shall execute the sentence in the modified form. Sd/- ## **K. V. JAYAKUMAR JUDGE** Sbna **/-**