Sreedharan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944 CRL.A NO. 1673 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 23.08.2007 IN SC 342/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA APPELLANT/ACCUSED: ``` ``` SREEDHARAN, S/O.NARAYANAN KALLARACKAL HOUSE, KANJIKUZHY VILLAGE, THODUPUZHA TALUK. ``` ``` BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1673 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1673 of 2007 --------------------------------------------- Dated this the 8[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 23.08.2007, passed by the Additional Sessions Court (Adhoc-II), Thodupuzha, in Sessions Case No.342/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 55 (g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 09.07.2004 at 5.40 p.m., in his house bearing No.V/69 (VIII/42) of Kanjikuzhy Grama Panchayath, the accused was found in possession of 30 litres of wash prepared for distillation of arrack in a 35 litre can in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 12(1) read with Section 55 (g) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the ``` Crl.A.No.1673 of 2007 ``` ``` 3 ``` appearance of the accused charge was framed against him for the offence punishable under Section 12(1) read with Section 55 (g) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P10 and MO 1. 5. After the 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 evidence against the accused and hence, he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. Exts.D1 to D3 were marked on the side of the defence. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55 (g) of the Abkari Act and convicted him thereunder. 6. Heard Sri.C.M.Tomy, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the ``` Crl.A.No.1673 of 2007 ``` ``` 4 ``` judgment of conviction and sentence on the following grounds:- (1) The prosecution failed to establish the conscious possession of the contraband substance allegedly recovered from the place of occurrence. (2) The prosecution also failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The seizure and arrest were effected by a Preventive Officer, Excise Range Office, Idukki (PW3). According to PW3, on getting reliable information that wash was kept in the residence of the accused, he proceeded to there. He searched the residence of the accused and recovered 30 liters of wash from the kitchen of building No.VIII/42 of Kanjikuzhy Grama Panchayath. The accused was in the building at the time of recovery of the contraband substance. Later his wife came there. 9. The challenge of the defence is that the prosecution failed to establish the conscious possession of the contraband substance by the accused. The learned counsel for the ``` Crl.A.No.1673 of 2007 ``` ``` 5 ``` appellant/accused relying on Ext.D1 ration card, contended that in addition to the appellant/accused, his wife, his son and daughterin-law were also residing in the building from where the recovery was effected. Relying on Ext.D2, identity card issued by the Election Commission and Ext.D3, a building tax receipt issued in his favour, it is contended that the number of the house that belonged to the appellant/accused at the relevant time was I/451 of Vazathoppu Grama Panchayath. 10. On the question of possession in the context of Abkari Act, this Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] held thus: “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. ‘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.’’ ``` Crl.A.No.1673 of 2007 ``` ``` 6 ``` 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 **Gunwantlal v. State of M.P. (1972 KLT OnLine 1112 (SC) = 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 possession is referred to as ‘constructive possession’. [See : **Gunwantlal v. State of M.P. in 1972 KLT OnLine 1112 (SC) = 1972 KHC 464 = 1972 (2) SCC 194 Halsburys laws of England (supra)** ]. **==> picture [91 x 20] intentionally omitted <==** 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 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.” 11. In the instant case, the prosecution failed to establish that the accused had actual control over the contraband substance allegedly recovered from the building. ``` Crl.A.No.1673 of 2007 ``` ``` 7 ``` 12. Resultantly, the prosecution failed to establish conscious possession of the contraband substance by the accused. 13. The learned counsel further contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. Ext.P1 is the seizure mahazar prepared by the detecting officer at the scene of occurrence. It does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature and description of the seal used. The copy of the forwarding note (Ext.P6) does not contain the name of the official with whom the sample was sent to the laboratory. Ext.P10, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory from the Court on 11.08.2004. Ext.P10 further shows that the sample reached the laboratory only on 12.08.2004. It was handed over to the laboratory by Sri.N.C.Sebastian, an Excise Guard. The sample remained in the custody of the Property clerk of the Court and Sri.N.C.Sebastian. Those witnesses were not examined by the prosecution to ``` Crl.A.No.1673 of 2007 ``` ``` 8 ``` establish the tamper-proof handling of the sample during its transit from the Court to the laboratory. The inevitable consequence of this omission on the part of the prosecution is that, it failed to rule out the possibility of the sample being changed or tampered with. 14. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 15. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when it reaches the laboratory is required to be established by the prosecution. 16. In **Sasidharan v. State of Kerala (2007 (1) KLT 720)** , this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner ``` Crl.A.No.1673 of 2007 ``` ``` 9 ``` in a tamper-proof condition. Relying on **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)** in **Sasidharan (supra)** this Court held that where sample changed several hands before reaching the Chemical Examiner, the prosecution had to necessarily examine the various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. In **Sathi v. State of Kerala (2007 (1) ILR 718 (Ker.))** , this Court re-emphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc. of the contraband to be sent for Chemical Examination. In **Sathi (supra)** , this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was shown to have been performed. This Court specified that the presumption under S. 114(e) of the Evidence Act has no application in circumstances where official acts are not shown to be performed properly. The ratio in **Sasidharan (supra)** and **Sathi (supra)** has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** . 17. In **Bhaskaran v. State of Kerala (2020 KHC 5296)** , this Court held that the nature of the seal used by the detecting officer ``` Crl.A.No.1673 of 2007 ``` ``` 10 ``` shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 18. In the present case, the prosecution failed to establish that the wash allegedly seized from the place of occurrence was actually subjected to analysis in the Chemical Examiner's laboratory. Therefore,Ext.P10 Certificate of Chemical Analysis has no evidentiary value. 19. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 20. 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]}. ``` Crl.A.No.1673 of 2007 ``` ``` 11 ``` 21. 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. 22. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK