T. P. Muhammed Kutty and K. Prabhakaran v. S.I. of Police, Town Police Station, Kozhikode and State of Kerala, rep. by Public Prosecutor, High Court of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945`** ## **`CRL.REV.PET NO. 436 OF 2008`** ## **`AGAINST THE JUDGMENT DATED 24.04.2006 IN CRL.APPEAL NO.372/2002 OF ADDITIONAL DISTRICT & SESSIONS COURT FAST TRACK (ADHOC-II), KOZHIKODE`** ## **`SC 110/2001 OF III ADDITIONAL ASSISTANT SESSIONS COURT, KOZHIKODE`** ## **`REVISION PETITIONERS/APPELLANTS/ACCUSED:`** - **`1 T.P. MUHAMMED KUTTY, S/O.ABOOTTY, MANDAPARAMBATH, LAKSHAM VEEDU, PALLUR AMSOM, CHELAKKARA.`** - **`2 K. PRABHAKARAN, S/O. ANANTHAN,`** ``` PANAYALIHOUSE,PERUNTHATTILAMSOM,ERANHOLYDESOM, THALASSERY. ``` ## **`BY ADV SRI.T.G.RAJENDRAN`** ## **`RESPONDENTS/COMPLAINANT & STATE:`** - **`1 S.I. OF POLICE,`** - **`TOWN POLICE STATION, KOZHIKODE.`** - **`2 STATE OF KERALA`** - **`REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.`** ## **`SHRI RENJIT GEORGE, SR.PUBLIC PROSECUTOR`** ``` THISCRIMINALREVISIONPETITIONHAVINGBEENFINALLYHEARD ON01.11.2023,THECOURTON09.11.2023DELIVEREDTHEFOLLOWING: ``` Crl.R.P No.436 of 2008 2 ## **O R D E R** This revision petition is at the instance of accused Nos.1 and 2 in SC No.110 of 2001, on the file of 3[rd] Additional Assistant Sessions Judge, Kozhikode, assailing the judgment in Crl.Appeal No.372 of 2002 on the file of Additional District and Sessions Judge Fast Track (Adhoc II), Kozhikode, which upheld their conviction and sentence under Section 55(a) of the Abkari Act. 2. The prosecution case is that, on 02.12.1997 at 2.30 p.m at Beach road, Kozhikode, PW1-Circle Inspector of Police and party, on a tip off received, intercepted KA 23/9943 lorry driven by the 1[st] revision petitioner, in which the 2[nd] revision petitioner was the cleaner, and on examining the lorry, in a secret cabin of that lorry, 49 cases each containing 24 bottles of 375ml each, and 37 cases, each containing 48 bottles of 180ml each, foreign liquor were found concealed, and they were transporting the same from Thalassery to Angamaly. PW1 arrested them after preparing arrest memo, and they seized the bottles, sealed and labeled the same, and produced it before the Police Station. PWs 5 and 6 investigated the case and laid charge sheet against the revision petitioners and four other accused persons who are absconding. Crl.R.P No.436 of 2008 3 3. On the revision petitioners pleading not guilty to the charge, the trial court examined PWs 1 to 6, marked Exts.P1 to P19 and identified M.Os I and II from the side of the prosecution, and marked Exts.D1 and D2 from the side of the revision petitioners. They denied all the incriminating materials brought on record in their 313 examination. No defence evidence was adduced. After hearing the rival contentions on either side, and on analysing the facts and evidence, the trial court found the revision petitioners guilty under Section 55(a) of the Abkari Act, and they were convicted and sentenced to undergo simple imprisonment for a period of three years and fine of Rs.1 lakh by each of them and in default each has to undergo simple imprisonment for a further period of six months. 4. Aggrieved by the conviction and sentence, the revision petitioners preferred Crl.Appeal No.372 of 2002. The appellate court, on re-appreciating the facts and evidence, dismissed the appeal, upholding the conviction and sentence imposed by the trial court, against which, this revision has been preferred. 5. Now this Court is called upon to verify the legality, propriety and correctness of the judgment impugned. 6. Heard learned counsel for the revision petitioners and learned Crl.R.P No.436 of 2008 4 Public Prosecutor. 7. The revision petitioners are assailing the judgment of the appellate court mainly on the ground that, the revision petitioners were only innocent driver and cleaner of the lorry, from which the contraband was seized, and they had no prior information about the secret chamber or the concealment of the contraband in that lorry. In the FIR itself, it is mentioned that, the contraband belonged to one Mr.Ravi at Thalassery and he was made the 3[rd] accused, and the lorry owner was the 4[th] accused. But, A3 who was the owner of the contraband or A4 the owner of the lorry, was never arrested by Police, and still they are absconding. In 313 examination, the revision petitioners contended that, they were employed in that lorry on a temporary basis, and the 1[st] revision petitioner became driver of that lorry on the date of incident for the first time, as an alternate arrangement, and only when the police party removed the sheet in the platform of the lorry, by using a spanner from outside the cabin, he came to know about the secret cell, as no one could have noticed such a cell on seeing the lorry from inside or outside the cabin. So, the revision petitioners pleaded innocence about the contraband concealed in the secret cabin, of the lorry. According to them, if they had prior Crl.R.P No.436 of 2008 5 information of such a large quantity of the contraband being concealed in the secret cabin of the lorry in which they were working, immediately on Police intercepting that vehicle, they could have tried to escape from the scene. Since they were unaware of such concealment, they stopped the vehicle as directed by the Police and never tried to run away, and fully co-operated with the search and seizure conducted under the leadership of PW1. They were arrested from the scene of occurrence itself and according to them, that also will speak about their genuineness. 8. Regarding possession of the contraband, no doubt, it should be conscious, and mere physical possession may not be sufficient always. In **Santhosh v. State of Kerala [2021 (5) KHC 214]** , this Court held that possession of an article involves power to control and intent to control. Unless the person who is said to be in possession of an article, is not having dominion or control over it, even if he is in physical possession of the same, it cannot be said that he is in actual possession of that article. 9. Paragraph 23 of the decision **Santhosh [2021 (5) KHC 214]** reads thus: _“23. ‘Possession' of an article involves power to control_ Crl.R.P No.436 of 2008 6 _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'.”_ 10. In **Ravi C. v. State of Kerala [2011 (3) KHC 427]** , this Court held 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. 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. Paragraphs 22 to 25 of that judgment read thus: “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 Crl.R.P No.436 of 2008 7 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 KHC 1611 : (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 S.114 of the Evidence Act merely because these persons were present when PW7 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. 25. The person who ‘stores’ an article in a building or house need not be in ‘possession’ of the same. Like wise, the person who is in ‘possession’ of an article might not have ‘stored’ it in the building. Therefore, ‘possession’ does not follow ‘storage’ nor does ‘storage’ follows ‘possession’. ‘Possession’ and ‘storing’ connote different things. The facts to be proved to constitute ‘possession’ and ‘storing’ are different. ‘Possession’ as well as ‘storing’ of arrack are prohibited under the Act. Illegal possession and storing of arrack constitute independent offences under S.8(2) of the Act and each such act calls for separate punishments also.” ## 11. In **Gunwantlal v. The State of M.P. [1972 KHC 464]** , the Crl.R.P No.436 of 2008 8 Apex Court held that, ‘Possession’ does not mean only physical or actual possession but includes constructive possession. If there is any disputed question of possession, specific facts admitted or proved will alone establish the existence of the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. 12. Even if an article is found kept or stored in a building or house, the owner or occupier of such building may not be aware of such concealment, unless it is proved that it was kept in the building, owned or possessed by him, with his knowledge and consent. The presence of the owner or occupier of the building at the time of seizure of the contraband, from that house or building may not be sufficient to implicate him, unless he was found to be in possession of that article. No presumption can be drawn as to the article seized was kept there with the knowledge, consent and active participation of the owner/occupier of the building sharing common intention with the real culprit behind. In the case of seizure of contraband from a vehicle also, unless it is shown that the driver or the cleaner, who were present at the time of detection and seizure, was aware of such concealment and transit, it cannot be said that, they were in possession of the Crl.R.P No.436 of 2008 9 contraband for the purpose of Section 55(a) of the Abkari Act. 13. In the case on hand, the 1[st] revision petitioner contended that, on the date of occurrence, only as an alternate arrangement, he became the driver of that lorry for the first time, and he was unaware of any secret chamber in that lorry, from where the contraband was seized. It is the case of the 2[nd] revision petitioner also. Ext.P1 FIR clearly says that, the secret chamber was not visible at first look, and after entering the platform on knocking the back side of the cabin, some space was felt inside, and so it was opened using a spanner, and then only the secret chamber and the contraband kept there became visible. If the revision petitioners worked in that lorry for the first time on the date of occurrence, it is quite probable that, they might not have been aware of the secret chamber or the contraband concealed inside, especially when the prosecution case is that, the lorry was owned by A4 and the contraband was owned by A3 arrayed in the charge sheet. The fact that the revision petitioners did not attempt to run away on seeing the Police party also probabilises their case. If they were aware of the fact that, the lorry contained large quantity of Indian Made Foreign Liquor without any authority, they might have attempted to flee from the scene on seeing the Police party. So, it is a Crl.R.P No.436 of 2008 10 probable story that the revision petitioners were unaware of such concealment, and so much so it could not be said that they were in possession of the contraband. 14. In the case on hand, the detection was made by PW1-the Circle Inspector of Police. Part of the investigation was done by the Sub Inspector of Police, and the final part including filing of the charge sheet was done by Assistant Sub inspector of Police, who are subordinates to the detecting officer. Learned counsel for the revision petitioners would submit that, prejudice was caused to the accused, as the investigation was not done by an officer higher in rank or even equivalent in rank, to the detecting officer. True that, a subordinate officer investigating a case, detected by his superior officer, may be in a delicate and embarrassing position to go against his superior officer, if at all his investigation reveals something which will have the effect of exonerating the accused from the allegations made against him. 15. In **Xavier v. State of Kerala [1998 (1) KLT 686]** , this Court has observed that when the complainant himself is a Police official, the investigation should have been conducted by his top ranking officer or else it will cause prejudice to the accused, as he will be deprived of his valuable rights of contradicting and corroborating Crl.R.P No.436 of 2008 11 the previous informations recorded under Sections 154 or 155 of Cr.P.C., and previous statement of the witnesses recorded under Section 161 of Cr.P.C. Paragraph 2 of the judgment **Xavier [1998 (1) KLT 686]** reads thus: “….In a case of this nature, when the complainant himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an Investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous informations recorded under Ss. 154 or 155 Crl. P.C. and previous statement of the witness, being a police officer, complaint recorded, under S. 161 Cr. P.C. enjoined in S. 145 and 157 of the Indian Evidence Act and proviso of S. 162 Cr.P.C. In the instant case, before me, PW1 is an Assistant Sub Inspector of Police, and I understand from the Public Prosecutor as well as from the Counsel for the petitioner that the particular Police Station has got a Sub Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub Inspector of Police or any other Police Officer above the rank of PW1. In the instant case, thus an incurable infirmity and flaw have been committed by the prosecution, quite against the proposition of law. Therefore, on that score itself, the petitioner is entitled to get an order of acquittal. In view of my above conclusion on the footing of position of law, this is a fit case, which has to be allowed by Crl.R.P No.436 of 2008 12 ## acquitting the petitioner.” 16. When the detection is by a superior officer, the investigation must have been done by an officer of higher rank or even of equal rank, in order to ensure fairness and transparency in investigation. Otherwise, the subordinate officer may find it difficult to proceed with the investigation in the right path, if at all he has to deviate from the facts reported by the superior officer, who detected the offence. 17. The contraband seized from the lorry was produced before the Magistrate on 04.12.1997. The seizure was on 02.12.1997. That delay is not properly explained by the prosecution. In Ext.P2 seizure mahazar, no specimen seal is impressed. The forwarding note contains two sheets of paper, but the pages are not serially numbered. In the second sheet, nature of examination required is mentioned and a specimen seal of the SHO is seen affixed. On the reverse side of the second sheet, another specimen seal is impressed and that is of JFCM, Kozhikode. We are not sure which of those seals was affixed in the sample sent to the analyst. So, the link evidence is not satisfactorily established. Prosecution is bound to prove that the sample seized was the sample which reached the examiner for chemical analysis. Crl.R.P No.436 of 2008 13 18. In **Sasidharan v. State of Kerala [2007 (1) KLT 720]** , this Court held that, the prosecution has a duty to prove that, it was the sample taken from the contraband liquor seized from the accused, reached the hands of the chemical examiner in a foolproof condition. Though in Ext.P19 chemical report, the examiner has reported that the sample on the bottles were intact and found tallied with the sample seal provided, since two sample seals are seen affixed in the forwarding note, we cannot ascertain which was the sample seal affixed on the sample and which was the seal provided as specimen seal. So, the prosecution failed to prove that, there was tamper proof despatch as far as the sample analysed by the Chemical Examiner is concerned. Ext.P19 Chemical Report further shows that, the sample was forwarded from JFCM-I, Kozhikode on 08.12.1997, to the Chemical Examiner’s Laboratory at Kozhikode itself. But, the sample reached the Laboratory only on 27.12.1997 i.e. after about 20 days. That also casts serious doubt regarding the tamper proof despatch of the sample to the Examiner. 19. In the forwarding note, the name of the Police Constable through whom the sample was forwarded to the analyst will not find a place. But, in Ext.P19 Chemical Report, PC number of two Police Crl.R.P No.436 of 2008 14 Constables are seen mentioned. The thondi clerk who despatched the samples or the Police Constables who received the samples for taking it to the Chemical Examiner’s Laboratory are not examined, to explain the delay in reaching the sample before the analyst. 20. In **Kumaran P. v. State of Kerala and another [2016 (5) KHC 632 : 2016 (4) KLT 718]** , this Court held that ‘ _when the space meant for writing the name of Excise Guard/Preventive Officer with whom sample was sent, is remaining vacant in the forwarding note, the prosecution has to examine the thondy clerk of the Court or Excise Guard concerned, to prove tamper proof despatch of the sample to the laboratory. Absence of such examination, enures to the benefit of the accused_ ’. 21. To sum up, the prosecution failed to prove possession of the contraband by the revision petitioners. No specimen seal was impressed on the seizure mahazar. In the forwarding note, two specimen impressions were affixed and it is not sure which was the seal affixed on the sample. The name of the Police Constables with whom the sample was entrusted for taking it to the analyst will not find a place in the forwarding note. The thondi clerk or the Police Constable who took the sample was not examined. There occurred Crl.R.P No.436 of 2008 15 delay of about 20 days for reaching the sample before the analyst after it was forwarded from court. All these facts cumulatively point towards the failure of the prosecution to prove its case beyond reasonable doubt. So the revision petitioners are liable to be acquitted of the offence alleged under Section 55(a) of the Abkari Act. In the result, the revision petition is allowed, setting aside the impugned judgments of conviction and sentence by the courts below. They are found not guilty under Section 55(a) of the Abkari Act, and hence acquitted under Section 235(1) of Cr.P.C. Their bail bonds are cancelled and they are set at liberty forthwith. Sd/- **SOPHY THOMAS JUDGE** smp/DSV/-