Sura S/o Madhavan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944 ``` ``` CRL.A NO. 733 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 19/2006 OF SPECIAL COURT (NDPS ACT ``` ``` CASES), THODUPUZHA ``` ``` CP 22/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PEERUMEDU APPELLANT/ACCUSED: ``` ``` SURA, S/O.MADHAVAN, OZHUKAYIL VEEDU, VEDIKUZHI PUTHUVAL, KOLAHALAMEDU, VAGAMON VILLAGE. ``` ``` BY ADV C.M.TOMY ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY SR. PUBLIC PROSECUTOR SMT.REKHA.S ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.06.2022, ``` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.Appeal No.733 of 2007 2 ## BABU, J. -------------------------------------------------- Criminal Appeal No.733 of 2007 -------------------------------------------------Dated this the 16[th] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 13.04.2007, passed by the Additional Sessions Court, Thodupuzha in S.C.No.19/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(g) of the Abkari Act and sentenced to undergo simple imprisonment for a term of five years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 24.12.2003, the appellant/ accused possessed utensils for distilling arrack and 400 litres wash at his house in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under 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 appearance of the accused, charge was framed against him for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty to Crl.Appeal No.733 of 2007 3 the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P10 and MOs1 to 3. 5. After the closure of the prosecution evidence, 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. Ext.D1 was 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 judgment of conviction and sentence on the ground that the prosecution has not succeeded in proving that the very same sample drawn from the scene of occurrence was produced before the Court and forwarded to the Chemical Examiner's laboratory. Crl.Appeal No.733 of 2007 4 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (i) The prosecution failed to establish the conscious possession of the contraband substances, allegedly recovered from the building in question, by the accused. - (ii) The prosecution has not succeeded in proving that the wash allegedly recovered from the place of occurrence was examined in the Chemical Examiner's Laboratory. 9. PW3, the then Sub Inspector of Police, Peerumedu detected the offence. PW3 searched the building number IV/350 of Elappara Grama Panchayat on getting a reliable information that wash was kept on the premises. In the search, PW3 seized barrels containing wash from the premises of the building. PW3 recovered 400 litres of wash from the scene of occurrence. He also seized utensils kept for manufacturing arrack from the premises. The contention of the accused is that he had not possessed the wash and the utensils recovered from the place of occurrence. PW3 has no case that the accused had physical possession of the contraband substances recovered. The prosecution relied on Ext.P10 Ownership Certificate issued in the name of the accused to attribute possession 5 Crl.Appeal No.733 of 2007 of the wash and the utensils by the accused. Admittedly, other persons are also residing in the building in question. The defence has a further contention that the property from where the wash was recovered belongs to the brother of the accused. In order to establish the offence alleged, the prosecution has to establish conscious possession of the contraband substance by the accused. While dealing with the question of possession, in the context of the 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, (5 th 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.’’ 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)]. Crl.Appeal No.733 of 2007 6 22. In Gunwantlal v. State of M.P. [1972 (2) SCC 194], 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. [1972 (2) SCC 194] Halsburys laws of England (supra)] 24. xxx xxx 25. xxx xxx 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.” 10. In the instant case, the prosecution failed to establish that the accused had actual control over the contraband substance allegedly recovered from the place of occurrence. 7 Crl.Appeal No.733 of 2007 11. The alleged seizure was on 24.12.2003. Ext.P7 list of properties shows that the properties including the sample were produced before the Court only on 30.12.2003. The prosecution has not offered any satisfactory explanation for delay of 6 days in bringing the properties, including the sample before the Court. 12. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property. ” (Emphasis supplied) In **Ravis' case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 13. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. Crl.Appeal No.733 of 2007 8 14. The bottle containing the sample remained in the custody of the property clerk of the Court from 30.12.2003 to 12.01.2004. On 12.01.2004, the sample was forwarded to the Chemical Examiner's Laboratory through a Police Constable with number 1161. Those witnesses were not examined by the prosecution to prove the tamper-proof dispatch of the sample from the Court to the laboratory. 15. 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. 16. 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. ## 17. 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 Crl.Appeal No.733 of 2007 9 accused eventually reached the hands of the Chemical Examiner in a tamper-proof condition. Relying on **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314] in **Sasidharan's case** (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's case** (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 Section 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's case** (supra) and **Sathi's case** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala** [2011 (3) KLT 353]. 18. The prosecution has not succeeded in proving that the wash recovered from the place of occurrence was actually subjected Crl.Appeal No.733 of 2007 10 to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P9 Chemical Analysis Report has no evidentiary value. 19. Another aspect that needs consideration is the delay in the analysis of sample. Though the sample reached the laboratory on 13.01.2004, it was analyzed only on 11.04.2005. On the question of delay in the analysis of the sample this Court in **Krishnadas v. State of Kerala** [2019 KHC 191] held thus: “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.” In the instant case, the delay of more than one year in analyzing the sample has not been explained by the prosecution. 20. The prosecution miserably failed to prove that the contraband substance allegedly seized from the possession of the accused was eventually subjected to analysis in the Chemical Examiner's laboratory. 21. 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 Crl.Appeal No.733 of 2007 11 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. 22. 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]}. 23. 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 accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 24. The upshot of the above discussion is that the judgment of conviction and sentence 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 12 Crl.Appeal No.733 of 2007 AJ