Suresh v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942** ## **CRL.A.No.667 OF 2005** **AGAINST THE JUDGMENT DATED 28.3.2005 IN SC 306/2003 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.1 (ADHOC), MANJERI** ## **APPELLANT:** **SURESH, SON OF VIJAYAN CHERUKULATH HOUSE, PACHATTIRI AMSOM, PERIYAPURAM DESOM, TIRUR TALUK.** **BY ADVS. SRI.K.C.CHARLES SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.667/2005 ## **C.R.** ## **JUDGMENT** ## **Dated this the 25th day of June 2020** The above appeal is filed by the accused in Sessions Case No.306 of 2003 on the file of the Additional Sessions Judge, Fast Track Court-I (Adhoc), Manjeri. The appellant was charge sheeted by the Excise Range Office, Tirur, alleging offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 10.10.2001, at 5.30 P.M., the accused was found lifting a cannas containing 20 litres of illicit arrack out of a pond in the property of one Parambil Moideenkutty. It is also the prosecution case that another cannas containing 7 litres were found out from the pond as concealed by the accused and therefore, the accused committed the offence. 3. To substantiate the case, the prosecution examined PW1 to PW7. Exts.P1 to P10 were marked on 3 Crl.A.No.667/2005 the side of the prosecution. MO1 and MO2 are the material objects. 4. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 55(a) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was directed to undergo simple imprisonment for three years. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that even if the entire prosecution case is accepted, no offence under Section 55(a) of the Abkari Act is attracted. According to the counsel, simply because the accused was found lifting a can from a pond owned by a third party, it cannot be presumed that the accused was in possession of the same. 4 Crl.A.No.667/2005 7. The learned Public Prosecutor submitted that there is oral and documentary evidence to prove the offence under Section 55(a) of the Abkari Act. According to the learned Public Prosecutor, the evidence of PW1 is corroborated by PW2. The documentary evidence also supports the case of PW1 and PW2. Therefore, the Public Prosecutor submitted that the accused committed the offence under Section 55(a) of the Abkari Act. 8. After hearing both sides, the point for consideration is whether the accused committed the offence under Section 55(a) of the Abkari Act. 9. Altogether seven witnesses were examined in this case. PW1 is the Preventive Officer, and PW2 is the Excise Guard. They were examined to prove the search and seizure. PW3 is the owner of the property where the pond is situated. He turned hostile to the prosecution. PW4 is another independent witness examined by the prosecution. But he also turned hostile to the prosecution. PW5 is the Excise Inspector who registered the case. PW6 5 Crl.A.No.667/2005 is the detecting officer. PW7 is the Excise Inspector who investigated this case. 10. It is a settled position now that to attract an offence under Section 55(a) of the Abkari Act; the prosecution has to prove that the accused was found in possession of liquor in the course of import, export, transport or transit of the goods. This point is considered by this Court in _**Josekutty v. State of Kerala (2013 (1) KLT 434)**_ . 11. But an offence under Section 58 of the Abkari Act is maintainable if the prosecution can prove that the accused was found in possession of illicit liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the duty, tax or rental payable under the Abkari Act not to have been paid. 12. In this case, the evidence adduced by the prosecution is like this: The Excise Party was on patrol duty on 10.10.2001. The uniform versions of PW1, PW2 and PW6 are that while they were passing through a 6 Crl.A.No.667/2005 pathway near to a Jama Ath Mosque at Keezhur, they noticed the presence of the accused standing near to a pond. On watching the accused at a distance of 20 meters, the Excise Party found the accused lifting a cannas out of the pond and placing it on the step of the pond. The Excise Party felt suspicion, and they had restrained the accused in the presence of local people. In their presence, cannas was opened, and the contents was examined. They were fully convinced that cannas contained 20 litres of illicit arrack, and it was concealed under water by the accused and the accused was lifting MO1 out of the water. On feeling suspicion, one of the Excise Guards by name Raveendran was asked to examine the bottom of the pond. The said Raveendran obeyed that order and step down into the pond and examined. Then another cannas having capacity of 20 litres was also traced out. On examining the second cannas they found about 7 litres of illicit arrack. Accordingly, arrest and seizure were affected. According to the prosecution, first 7 Crl.A.No.667/2005 cannas found in the physical possession of the accused was marked as 'A'. The second cannas searched and found out from the pond was marked as 'B'. Samples were separately taken out of these two cannas. All the contraband articles were duly sealed and labeled. Documents were prepared. MO1 and MO2 are the cannas. PW5 who received the articles and the accused from the Excise Party prepared occurrence report, property list and forwarding note. Exts.P4 to P6 are the documents. These documents along with Ext.P1 was forwarded to the court on the very next day of detection. Samples were duly forwarded to the laboratory as per the requisition. Ext.P10 is the chemical examination report. As per Ext.P10, it is certified that the two sample bottles with inscription ‘A’ & ‘B’ contained ethyl alcohol. Hence, it is alleged that the accused committed the offence. 13. The point to be decided is, even if we accept the entire prosecution case whether it can be presumed that the accused was in possession of the illicit liquor. 8 Crl.A.No.667/2005 "Possession" is not defined in the Abkari Act. It is well settled by precedents that to constitute 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. In this case, the Excise Officials found that the accused was lifting a can from a pond, which is situated in the property of PW3. Except for the act of lifting the can from the pond, no other overtact is alleged against the accused in this case. The prosecution has not even a case that the accused was perplexed when he saw the Excise Officials. So the evidence available in this case is that the accused was lifting a can from a pond which belongs to a third party. Admittedly, PW3 is the owner of the pond from where this can was taken by the accused. Simply because there is evidence to show that the accused was found lifting the can from a pond belong to PW3 it will not prove "possession". Touching or lifting a contraband article from an open pond by an accused without any other overtacts will not amount to possession. 9 Crl.A.No.667/2005 To prove possession, dominion or control over the property is necessary. Hence it cannot be concluded that the accused was in possession of the contraband articles. Admittedly, the pond is situated in an open property. If a can is seen in a pond, a person may even take out the same because of curiosity. He may be a thief or an ordinary person trying to take out a strange article seen in a pond. In this case, the admitted case of the prosecution is that the accused lifted the can from the pond. I don't think that the same amounts to either physical/actual possession or even constructive possession of illicit liquor. 14. This court interpreted the word "possession" in **Ravi v. State of Kerala (2011(3) KLT 627)** . The ## relevant paragraph is extracted hereunder : _“15. “Possession” of an article involves power to control and intent to control. The inevitable factor to be proved by prosecution to establish “possession” is, dominion or control over 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 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” (vide Gunwantlal_ 10 Crl.A.No.667/2005 _v. State of M.P. in (1972) 2 SCC 194)._ _16. Thus, possession can either be physical/actual possession or constructive possession. In either case, whether it be physical or constructive possession, prosecution must inevitably prove that the person who is alleged to be in “possession” of a contraband article has dominion or control over such article. The question whether a person is in illegal physical/actual possession or constructive possession of a contraband article is a mixed question of fact and law. It depends on facts and circumstances of each case. Referring to “possession”, it is held by 3 judges-bench of the Supreme Court in Superintendent and Remembrancer of Legal Affairs v. Anil Kumar Bhunja 1979) 4 SCC 274 held thus: “this issue, in turn, is a mixed issue of fact and law, depending on proof of specific facts or definite circumstances by the prosecution”._ _17. The above principle will apply to a case of “storing” also. Whether a person has illegally “stored” an article is a mixed question of facts and law. Whether a person is in possession of an article or has stored the same, depends on facts and circumstances proved in each case. The facts to be proved to establish “storing” and “possession” are different. An example will make the position can be clearer:_ _18. A person, say 'A' owns a contraband article and he is having dominion or control of the same. He may put it and keep it in his own house, to retrieve it for use on a future date. Here, he has “stored” the article and he is also in “possession” of the same. So, if such article is seized from his house, he can be said to have stored the article and also in possession of the same._ _19. However, `A' removes an article belonging to him to B's house. He puts and keeps the article in B's house (with permission of the latter), to retrieve it for use on a future date. While doing so,`A' himself retains control or dominion over the article but, B has no such control or dominion over the same. B only allowed A to store it in his house, knowing that the article is a contraband article._ _20. In the above example, A “stores” the article and he is also in “possession” of it, even though the article is stored in B's house. 'B' has neither stored it nor is he in possession of the same. B's liability is limited only in permitting A to “store” the article in his house, with his knowledge and consent. If such article is seized from B's house, B cannot be said to have “stored” the same nor is_ 11 Crl.A.No.667/2005 _in “possession” of the same._ _21. Suppose, 'A' employs his servant, B to store the article in B's house. 'B' removes the article from A's house and puts and keeps it in B's house, on the understanding that 'A' will retrieve it for his use on a future date, when 'A' is in need of it. `A' retains control or dominion over the article but B is not given any right or authority to deal with the article, as he pleases. `B' has no dominion or control over the property. Here, B “stores” the article but `A' does not “store” the same. 'A' is in “possession” of the article but, B is not in “possession”. If the article is seized from B's house, B can be held liable for “storing” and not for “possession”; A is liable for “possession” but not for “storing”._ _22. Thus, it will be clear that only because an article is found kept or stored in a building or house, the owner or occupier of such building cannot be said to have “stored” the article, nor can it be said that he is in “possession” of such article. There is also no presumption either on facts or in law that an article which is seen kept or stored in a building or house is “stored” or “possessed” by the owner or occupier of the building. Even if owner or occupier of the house was present in the house at the time of seizure, he cannot be presumed to be in possession of the article or stored the same._ _23. The Supreme Court in Ismailkhan Aiyubkhan Pathan v. State of Gujarat, (2000) 10 SCC 257 held thus: "There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under Section 114 of the Evidence Act merely because these persons were present when PW 7 went there"._ _24. Thus, the question whether a person "stored" the article which is found kept in his house, or whether he is in "possession" of such article does not depend merely on ownership or possession of the house. An owner or occupier of the building or house cannot be held liable for "storing" or for "possession" of such article, for the sole reason that he is the owner or occupier of the building or house.”_ ## 15. In the light of the above judgment, I think it 12 Crl.A.No.667/2005 cannot be said that simply because the accused was found lifting a can from a pond belongs to PW3 can be convicted under Section 55(a) of the Abkari Act or Section 58 of the Abkari Act for possessing illicit liquor. The act of the accused will not amount to either physical/actual possession or even constructive possession, as laid down by this court in the above judgment. Therefore, on this simple ground itself, the accused is entitled benefit of doubt. Hence this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 28.3.2005 in Sessions Case No.306 of 2003 on the file of the Additional Sessions Judge, Fast Track Court-I (Adhoc), Manjeri is set aside. The appellant is set at liberty. The bail bond, if any executed by the appellant, is cancelled. Sd/- ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **csl**