Syam s/o Mohanan and Geetha d/o Vijayamma v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 24[TH] DAY OF JUNE 2022 / 3RD ASHADHA, 1944** **CRL.A NO. 2525 OF 2008** **AGAINST THE JUDGMENT IN SC 267/2005 OF ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK COURT-I), THIRUVANANTHAPURAM APPELLANT/ACCUSED:** 1 SYAM, S/O MOHANAN, PUTHENCOTTA VEEDU, PANDAKASALA DESOM, SARKARA VILLAGE, CHIRAYINKIL TALUK, (SC 268/05). 2 GEETHA, D/O.VIJAYAMMA, PUTHENCOTTA VEEDU, PANDAKASALA DESOM, SARKARA VILLAGE, CHIRAYINKIL TALUK, (SC 267/05). BY ADVS. SRI.DINESH.M ## **RESPONDENT/PETITIONER:** STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2525 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2525 of 2008 --------------------------------------Dated this the 24[nd] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 06.10.2008, passed by the Additional District and Sessions Court, (Fast Track-I), Thiruvananthapuram in S.C.Nos.267/2005 and 268/2005, the two accused have preferred this appeal. The appellants/accused were convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on getting prior information, the Excise party led by PW2 proceeded to the house of accused No.1 and on inspection, a can having the volume of 10 litre filled with arrack was found in the north-eastern corner of the room inside his house, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellants for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. Crl.A No.2525 of 2008 3 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 them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, they came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P9 and MO1. Exhibits X1 to X4(a) were marked as Court Exhibits. 5. After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellants for the aforesaid offence. 6. Heard Sri. Dinesh.M, the learned counsel appearing for the appellants/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenged the Crl.A No.2525 of 2008 4 judgment of conviction and sentence on the following grounds: - (i) The prosecution failed to establish the identity of the persons who allegedly kept the arrack in the building in question. - (ii) The prosecution failed to establish the conscious possession of the contraband substance by the accused. - (iii) The prosecution also failed to show that the liquor allegedly seized from the place of occurrence reached the hands of the Chemical Analyst. 8. The alleged seizure was effected on 28.02.2002 by the Excise Inspector, Excise Circle office, Attingal (PW2). The detecting officer searched the building No.IV/1019 and found 10 litres of arrack therein. The accused were not found on the premises from where the recovery was effected. PW2 got information from the neighbours that it was the accused who kept the contraband substance in the building. 9. The case of the prosecution is that on seeing the Excise party accused No.1 ran away from the scene. The detecting officer and the other official witnesses have no case that they had any Crl.A No.2525 of 2008 5 previous acquaintance with accused No.1. The detecting officer and the other official witnesses who had participated in the search and seizure identified the accused in the Court after a long lapse of 5 years. The identifying features of accused No.1 have not been narrated in the seizure mahazar. The witnesses who identified accused No.1 had no opportunity to see him after the incident. No test identification parade was conducted in this case. Going by the evidence, the official witnesses have only a fleeting glimpse of the persons who ran away from the scene. 10. The detecting officer could not effect the arrest of the accused. PW7, the Secretary of the local Grama panchayat, gave evidence that the building in question has been assessed in the name of one 'Mohanan'. No independent witnesses supported the prosecution case that the accused had kept the liquor in the building. Therefore, the prosecution failed to establish the identity of the persons who had possessed the arrack as alleged by the prosecution. The prosecution has no case that the accused were in physical possession of liquor at the place of occurrence. 11. The prosecution relied on Exts.P7 and P8 certificates of ownership issued from the local authority to substantiate that the Crl.A No.2525 of 2008 6 accused were in possession of liquor at the place of occurrence. Exhibit P7 refers to building No.IV/1019 belongs to one Mohanan. Exhibit P8 refers to building No.IV/1020 belongs to one Sathyabhama. The building number referred to in Ext.P1 seizure mahazar is III/416. 12. The prosecution has to establish the conscious possession of the contraband substance by the accused to bring home the offence alleged. This Court has considered the question of possession in the context of Abkari Act in Santhosh v. State of Kerala [2021 (5) KHC 214]. In Santhosh's case this Court held as follows: “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 Crl.A No.2525 of 2008 7 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 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)]. 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.” ## 13. In the present case, the prosecution failed to establish Crl.A No.2525 of 2008 8 that the two accused had actual control over the contraband substance recovered from the building. Resultantly, the prosecution failed to establish the possession of the contraband substance by the accused. 14. Though the seizure was effected on 28.02.2002, the properties, including the sample, were produced before the Court only on 11.03.2002, which is evident from Ext.P5 list of property. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties. 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 Crl.A No.2525 of 2008 9 is delayed production of the property. 15. 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 sample could not be ruled out. 16. Admittedly, no sample was drawn at the scene of occurrence by the detecting officer. PW6, the property clerk of the Court, gave evidence that she had drawn the sample from the bulk quantity of the liquor produced before the Court and forwarded the same to the laboratory. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or Excise official concerned. In Baburaj v. State of Kerala [2021 (6) KLT 416] while dealing with the sanctity of the act of drawing sample by the official of the Court as per the instructions of the learned Magistrate, this Court held thus: “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the Crl.A No.2525 of 2008 10 contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” 17. In Baburaj's case (supra) this Court held that as the procedure adopted in drawing sample from the contraband substance by the officer of the Court has no sanction of law is not a procedure established by law, the Certificate of Chemical Analysis obtained based on the sample so drawn has no evidentiary value. 18. Exhibit P6 is the copy of the forwarding note. It does not contain the specimen of the seal. There is nothing to show that the specimen of the seal was forwarded to the Analyst for comparison. In the absence of specimen seal, the Analyst is unable to ascertain Crl.A No.2525 of 2008 11 the genuineness of the sample forwarded. 19. In the present case, the prosecution failed to show that the arrack allegedly recovered from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. Therefore, Exhibit P9 Certificate of Chemical Analysis has no evidentiary value. 20. 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. 21. 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]}. 22. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband Crl.A No.2525 of 2008 12 seized and the sample analysed in the laboratory. The accused are entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 23. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellants/accused are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS