Surendran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944 CRL.A NO. 697 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 05.11.2007 IN SC 159/2001 OF ADDITIONAL SESSIONS COURT-I,MAVELIKKARA IN CP 42/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHENGANNUR ``` ## **`APPELLANT/ACCUSED:`** ``` SURENDRAN, THEKKEKANNI MELTHARA VEEDU, ERAMATHUR MURI, KURATTISSERI VILLAGE. ``` ``` BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, MANNAR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 30.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.Nos.697 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 697 of 2008 ## --------------------------------------------- ## Dated this the 30[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 05.11.2007, passed by the Additional Sessions Court-I, Mavelikara in Sessions Case No.159/2001, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 24.12.1998 at 6.00 p.m., the appellant/accused was found in possession of 1.5 litres of arrack in two bottles at his residential house by the name “Thekke Kannimelthara Veedu” in Eramathoor Muri, Kurattisseri village 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 55(i) 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 ``` Crl.A.Nos.697 of 2008 ``` ``` 3 ``` charges were framed against him for the offences punishable under Sections 8(2), 55(a) and 55(i) 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 P5 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 to adduce evidence, if any, he may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. John Britto, 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 challenges the judgment on the following grounds:- ``` Crl.A.Nos.697 of 2008 ``` ``` 4 ``` (1) The prosecution failed to establish the identity of the person who was allegedly found in possession of the contraband substance. (2) The prosecution failed to establish the inordinate delay in the production of articles, including the sample, before the Court. (3) The prosecution failed to establish the conscious possession of the contraband substance by the accused. (4) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The offence was detected by PW1, the Assistant Sub Inspector of Police, Mannar Police Station. According to the prosecution, on 24.12.1998 at 6.00 p.m., on getting reliable information that the appellant/accused was engaged in the sale of arrack, the police team headed by PW1 proceeded to the place of occurrence. On seeing the police party, the accused ran away from the premises of his residence. Police recovered 1.5 litres of arrack in two bottles from the residence by the name “Thekke ``` Crl.A.Nos.697 of 2008 ``` ``` 5 ``` Kannimelthara Veedu” in Eramathoor Muri, Kurattisseri village. 9. The learned counsel for the appellant submitted that the prosecution failed to establish the identity of the person who was found in possession of the contraband articles. As per the prosecution case, PWs 1 and 2 have no case that they had any previous acquaintance with the appellant/accused. They identified the appellant in the Court after a long lapse of 9 years. There is nothing on record to show that the witnesses who identified the accused had any opportunity to see him after the incident. Going by their evidence, they had only a fleeting glimpse of the person who ran away from the scene. 10. It is well settled that where a witness identifies an accused, who is not known to him, in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court **[vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007** ``` Crl.A.Nos.697 of 2008 ``` ``` 6 ``` **SC 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another** **[AIR 1980 (SC) 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]** . So, on this ground alone the prosecution must fail. 11. The learned counsel for the appellant contended that there is inordinate delay in sending the properties, including the sample, to the Court. The alleged incident took place on 24.12.1998. Ext.P3 property list shows that the material objects were produced before the Court only on 01.01.1999. The prosecution has not offered any satisfactory explanation for the delay in producing the properties before the Court. 12. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in the production of properties, a Division Bench of this Court held thus: “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 ``` Crl.A.Nos.697 of 2008 ``` ``` 7 ``` 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) 13. In **Ravi's 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 an explanation for the delay when there is delayed production of the property. 14. 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. 15. The learned counsel for the appellant further submitted that the prosecution failed to establish the conscious possession of the contraband substance by the accused. Even according to the prosecution case, the building from which the contraband substance was recovered was not in the exclusive possession of the accused. Ext.P5 Certificate of possession issued from the local authority shows that the building belongs to the mother of the accused. ``` Crl.A.Nos.697 of 2008 ``` ``` 8 ``` # 16. While dealing with the question of possession in the context of the Abkari Act, this Court, in **Santhosh v. State of Kerala** [2021 (4) KLT Online 1150], 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.'' 21. In order to establish 'possession', the 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 the 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 the 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 ``` Crl.A.Nos.697 of 2008 ``` ``` 9 ``` possession'. [See : **Gunwantlal v. State of M.P** in 1972 KHC 464 = 1972(2) SCC 194 Halsbury’s laws of England (supra)]”. |24.|xxx|xxx|xxx| |---|---|---|---| |25.|xxx|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.” 17. In the instant case, the prosecution has not established that the accused had actual control over the contraband substance allegedly recovered from the place of occurrence. Resultantly, the prosecution failed to establish possession of the contraband substance by the accused. 18. Yet another contention of the defence is that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner's Laboratory. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the ``` Crl.A.Nos.697 of 2008 ``` ``` 10 ``` sample. The detecting officer who had drawn the sample has not narrated the nature of the seal used at the time of sampling. 19. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the Court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the Court {Vide: **Bhaskaran K. v. State of Kerala and another** (2020 KHC 5296), **Achuthan v. State of Kerala** [2016(1) KLD 391], **Krishnadas v. State of Kerala** (2019 KHC 191)}. 20. The prosecution also failed to produce any materials to show that the specimen impression of the seal was forwarded to the Chemical Examiner’s Laboratory to facilitate verification of the sample forwarded to the laboratory. 21. 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 ``` Crl.A.Nos.697 of 2008 ``` ``` 11 ``` 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. 22. The materials placed before the Court shows that the sample changed several hands. The sample remained in the custody of the officer concerned of the Court, the Excise official who received the same from the Court and the Excise Official who delivered the same to the laboratory. None of these officials were examined by the prosecution. The inevitable consequence is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during its transit to the laboratory. In the absence of any convincing evidence to show that the contraband substance stated to have been seized from the place of occurrence was subjected to analysis in the laboratory, Ext.P4 Certificate of Chemical Analysis has no evidentiary value. 23. 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 ``` Crl.A.Nos.697 of 2008 ``` ``` 12 ``` 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. 24. 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]}. 25. 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. 26. 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