Sukumaran s/o Kannan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944** ## **CRL.A NO. 674 OF 2007** **AGAINST THE ORDER/JUDGMENT SC 349/2002 OF ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA** ## **APPELLANT/ACCUSED:** SUKUMARAN S/O.KANNAN, MUTHU BHAVANAM,, ARUNOOTIMANGALAM MURI, VETTIYAR VILLAGE, MAVELIKKARA. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN ## **RESPONDENTS/STATE AND COMPLAINANT:** 1 STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 EXCISE INSPECTOR MAVELIKKARA EXCISE RANGE. SMT. REKHA.S (SR.P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No. 674 of 2007 2 ## **K.BABU, J** . -------------------------------------- Criminal Appeal No.674 of 2007 --------------------------------------Dated this the 24[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 19.03.2007, in S.C No.349/2002, passed by the Additional District and Sessions Court, Fast Track (Adhoc), Mavelikara, the accused has preferred this appeal. The appellant/accused was convicted under Sections 8(2) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of 3 years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 01.02.2000 at 5.45 p.m the appellant/accused was found in possession of 35 litres of wash at his house bearing No.242 of Ward No. XII, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(g) of the Abkari Act before the Jurisdictional Magistrate. The case was Crl.A No. 674 of 2007 3 committed to the Sessions Court, from where it was made over to the trial Court. On the appearance of the accused charges were framed against him for the offences punishable under Sections 8(2) and 55(g) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P9, and MOs 1 and 2. 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. On the side of the defence, DW1 was examined and Exts.D1 and D2 were marked. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the 4 Crl.A No. 674 of 2007 offences under Sections 8(2) and 55(g) of the Abkari Act and convicted him thereunder. 6. Heard Sri. Gerorge Varghese, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 7. The learned counsel for the appellant/accused challenged the impugned judgment on the following grounds:- a. The prosecution failed to establish the exclusive dominion or control of the accused over the contraband substance recovered from the place of occurrence. b. The prosecution failed to prove that the contraband allegedly seized from the residence of the accused was brought to the Chemical Examiner's laboratory in a tamper-proof condition. 8. On 01.02.2000 at 5.45 p.m PW4, the Preventive Officer of Mavelikkara Excise Range was on patrol 5 Crl.A No. 674 of 2007 duty. On getting reliable information that the appellant/accused had kept wash at his residence, the excise team led by PW4 proceeded to there. The Excise team detected 35 litres of wash kept in MO1 Aluminium pot at the house of the appellant. PW4 collected 500 m.l of liquid from MO1 pot and sealed the same. PW4 seized the contraband substance as per Ext. P1 seizure mahazar. The appellant was arrested. PW5 conducted investigation and submitted final report in the matter. 9. The prosecution allegation is that PW4, recovered 35 litres of wash kept in MO1 Aluminium pot from MuthuBhavanam, building No. 242 of Ward No.XII of Vettiyar village, the residence of the accused. The detecting officer and the other official witnesses had not given evidence as to the actual dominion or control over the contraband substance by the accused. The defence, relying on Exts.D1 and D2, pleaded that the accused was the resident of building No.202, ward No.XII Chirathazhe Thekathil, Vettiyar village. Ext.D2 ration Crl.A No. 674 of 2007 6 card shows that, in the building in which the accused was residing at the time of occurrence, his wife, son and daughter were also residing. Though the accused was arrested from the residence on the date of occurrence prosecution has not given convincing evidence as to whether the accused was in exclusive control or dominion over the contraband substance recovered from the place of occurrence. 10. In order to succeed on the ground that the accused had possessed the contraband substance allegedly recovered, the prosecution has to establish the conscious possession of the contraband substance by the accused. On the question of possession 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 Crl.A No. 674 of 2007 7 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.'' 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 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 Crl.A No. 674 of 2007 8 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)]”. ------------------- 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 contraband substance was recovered from the building allegedly in the possession of the accused, his wife, son and Crl.A No. 674 of 2007 9 daughter. Ext.D2 ration card substantiates the case that the accused was not in exclusive possession of the building. The necessary conclusion is that the prosecution failed to establish that the accused had actual dominion or control over the contraband substance allegedly recovered from the building in question. 12. The learned counsel for the accused further contended that the prosecution failed to prove that the wash allegedly recovered from the building reached the Chemical Examiner's Laboratory in a tamper-proof condition. The learned counsel relied on the following circumstances to substantiate his contention:- a. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. b. The detecting officer has not given evidence as to the nature and description of the seal used. c. No specimen seal was produced before the Court and forwarded to the Chemical Examiner's laboratory. 10 Crl.A No. 674 of 2007 d. No forwarding note/requisition for sending the sample to the laboratory was produced and marked. 13. 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. 14. A legal obligation is cast on the prosecution to prove that it was 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 the contraband reaches the laboratory is required to be established by the prosecution. 15. In **Sasidharan v. State of Kerala** (2007 (1) KLT 720), this Court had occassion to elucidate on the Crl.A No. 674 of 2007 11 legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner in a tamperproof 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 Crl.A No. 674 of 2007 12 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). 16. In **Bhaskaran v. State of Kerala** : 2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer 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. 17. In **Rajamma v. State of Kerala** : 2014 (1) KLT 506), this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Crl.A No. 674 of 2007 13 Chemical Analysis report. 18. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 19. In the instant case, this Court noticed the following deficiencies in the evidence of the prosecution. 1) The specimen of the seal was not produced before the Court to ensure the genuineness of the sample produced before it. 2) Ext.P1 doesn't contain any narration as to the nature and description of the seal stated to have been affixed on the sample. 14 Crl.A No. 674 of 2007 3) No forwarding note/requisition for sending the sample to the laboratory was produced and marked. 4) The sample, in its transit to the laboratory, remained in the custody of the property clerk of the Court, the excise official who received it from the Court and the excise official who delivered the same in the Chemical Examiner's laboratory. None of these officials have been examined by the prosecution. 20. In V **ijay 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. The upshot of the above discussion is that the 15 Crl.A No. 674 of 2007 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 offences punishable under Sections 8(2) and 55(g) of the Abkari Act. He is acquitted of the charges. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE rpk