Sobhana W/o Mohanan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943 CRL.A NO. 1167 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 609/2006 OF 3RD ADDITIONAL SESSIONS JUDGE (ADHOC-I), THODUPUZHA, IDUKKI** ## **APPELLANT:** **SOBHANA W/O.MOHANAN, THATTAMKUNNEL HOUSE, KEERITHODU KARA, KANJIKUZHAY VILLAGE (A2)** **BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI M C ASHI-PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 1167 OF 2008** **2** ## **K.BABU, J.** =================== ## **Crl. A. No. 1167 of 2008** =================== Dated this the 30[th] day of September, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 22.05.2007, passed by the 3[rd] Additional Sessions Judge (Adhoc-I), Thodupuzha in SC.No.609/2006, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 8 (2) of the Abkari Act. 3. The prosecution case is that on 17.08.2004 the appellant and the other accused in this case were found in possession of 5.3 litres of distilled arrack and 115 litres of wash at their residence bearing building No. KP V/515 at Periyarvalley, Keerithodu Kara, in Kanjikuzhy Village, Idukki District. **CRL.A NO. 1167 OF 2008** **3** 4. After completion of the investigation, the final report was submitted against the appellant and the other accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Idukki. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the trial Court. On the appearance of the accused charge was framed against them for the aforesaid offence. The accused pleaded not guilty and therefore, they came to be tried by the trial court. 5. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P15 and MOs 1 to 6. 6. After closure of the evidence on behalf of the prosecution, the statement of the appellant and the other accused under Section 313 Cr.P.C were recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. **CRL.A NO. 1167 OF 2008** **4** The trial court, after hearing the arguments addressed from both sides, found that the appellant (accused No.2) is guilty of offence punishable under Section 8 (2) of the Abkari Act. The accused No. 1 was acquitted of the charge. The appellant/accused was sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 1 lakh under Section 8(2) of the Abkari Act. 7. Heard Sri. C.M. Tomy, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that, the prosecution failed to establish that the accused was in exclusive possession of the building from where the contraband substance was allegedly recovered. 9. The learned Public Prosecutor, per contra, submitted that, sufficient materials are there to establish the charge against the accused. 10. The only point that arises for consideration is whether **CRL.A NO. 1167 OF 2008** **5** the conviction entered and the sentence passed against the accused/appellant are sustainable or not. 11. PW6, the Circle inspector of police, Kanijikuzhi on 17.08.2004 got reliable information that illicit arrack was kept at the residence of the accused. The police team led by PW6 proceeded to the residence of the accused. The appellant/accused No.2 and her husband were sitting in a room near to the kitchen of the residence. PW6 recovered 5.3 litres of arrack and 115 litres of wash and other utensils for the distillation of arrack from the building. According to PW6, on seeing the police party the husband of the appellant (accused No.1) ran away from there and he could not be arrested. PW6 seized the contraband substances and other articles recovered from the place of occurrence as per Ext.P1(a) search list. The appellant/accused was arrested from the spot. 12. PW1 to PW3 and PW5, the independent witnesses, did not support the prosecution. PW4, the police constable who had accompanied PW6 in the search and seizure, supported the **CRL.A NO. 1167 OF 2008** **6** prosecution. PW7 completed the investigation and submitted the final report. PW8, the Secretary of the local authority gave evidence that the building from where the contraband substances were recovered was in the name of one Madhavan Ittan Thattamkunnel, Periyarvalley. 13. The learned counsel for the appellant disputed the arrest of the accused. He mainly relied on the presence of the crime number in Ext.P10 arrest memo to substantiate his contentions. Ext.P10 contains the crime No.75/2004 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 **CRL.A NO. 1167 OF 2008** **7** 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 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. The learned counsel for the accused further contended that, the prosecution failed to establish the exclusive possession of the contraband substances by the accused in order to connect them with the crime. The prosecution has to establish that the accused was found to be in possession of contraband substances. 17. In order to establish 'possession', prosecution must **CRL.A NO. 1167 OF 2008** **8** 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)]._ 18. In _**Gunwantlal 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.” 19. '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'. **CRL.A NO. 1167 OF 2008** **9** [See : **Gunwantlal v. State of M.P** 1972 KHC 464 = 1972(2) SCC 194;] 20. The prosecution has failed to establish that the accused was in exclusive possession of the building from where the contraband substances were recovered. PW8, the Secretary of the local authority, gave evidence that the building was in the name of the father of the 1[st] accused. The 1[st] accused was also residing in the building. Even according to the prosecution, other members of the family were also residing there. At the time of search, PW1 found the appellant/accused, her husband (accused No. 1) and some others in the residence. 21. The accused faces a charge that attracts stringent punishment. A balance, thus, must be struck while construing 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 her. Where the offence alleged seeks to deprive the accused of his **CRL.A NO. 1167 OF 2008** **10** 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. 22. 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 the building in question. Resultantly, the prosecution failed to establish possession of the contraband substance by the accused. 23. Yet another aspect brought to my notice by the learned counsel for the accused is that, the copy of the forwarding note does not contain the name of the person with whom the samples were forwarded to the Chemical Examiner's Laboratory and also it does not contain the date on which the learned Magistrate countersigned. There is no material to **CRL.A NO. 1167 OF 2008** **11** show the name of the police official, who received the bottles containing the sample from the Court. While dealing with a similar fact situation, this Court in _**Kumaran v. State of Kerala**_ [2016 (4) KLT 718], held thus: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while_ **CRL.A NO. 1167 OF 2008** **12** _appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 24. Ext.P13 certificate of chemical analysis shows that the bottles containing the sample were forwarded to the laboratory from the Court on 22.08.2004. But the samples reached the laboratory only on 25.08.2004 through a Police Constable No. 1679. The sample remained in the possession of the property clerk, the police official, who received the sample from the Court and the Police Constable No. 1679, who delivered the sample to the laboratory. The prosecution has not examined these officials as witnesses. The inevitable consequence of this omission is that, the prosecution failed to establish that the seals on the bottles containing the sample while in their custody were not tampered with. The prosecution ought to have examined those officials to rule out the possiblity of tampering with the sample (Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR 1980 SC 1314]. 25. Ext.P13 certificate of chemical analysis would show **CRL.A NO. 1167 OF 2008** **13** that, though the sample reached the laboratory on 25.08.2004 they were subjected to analysis only on 10.05.2006. The delay of almost 20 months in subjecting the sample for analysis has not been properly explained by the prosecution. While dealing with a similar fact situation, in _**Krishnadas v. State of Kerala**_ [2019 KHC 191], this Court 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.”_ ## 26. 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 the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 27. It is settled that the prosecution in a case of this **CRL.A NO. 1167 OF 2008** **14** 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]}. 28. 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 the benefit of doubt arising from the absence of link evidence as discussed above. 29. 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 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. **CRL.A NO. 1167 OF 2008** **15** The appeal is allowed as above. Sd/- **K.BABU, JUDGE** LU