Thamizharasan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944** **CRL.A NO. 1300 OF 2007** **AGAINST THE JUDGMENT IN CP 28/2005 OF JUDICIAL MAGISTRATE OF FIRST** **CLASS - I, DEVIKULAM** **SC 89/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** THAMIZHARASAN, S/O. PALANI SWAMI, KALLAR ESTATE, MUNNAR. BY ADV SRI.JOICE GEORGE ## **RESPONDENTS/COMPLAINANT/1ST ACCUSED:** 1 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 RAJESH, S/O PARAMASIVAN, SEVENMALA ESTATE, MUNNAR. BY ADV PUBLIC PROSECUTOR SMT. REKHA.S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1300 of 2007 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.1300 of 2007 --------------------------------------Dated this the 17[th] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 29.05.2007, passed by the Additional Sessions Court (Adhoc-II), Thodupuzha in S.C.No.89/2006, accused No.2 has preferred this appeal. The appellant/accused No.2 was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 24.04.2005 at 11.30 a.m, the appellant and the other accused (A1) were found in possession of 10 litres of arrack in a can while travelling in the autorickshaw bearing registration No.KL-7 AN 8428 through Munnar-Kannimala road in Idukki district, 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 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was Crl.A No.1300 of 2007 3 made over to the Trial Court. On the appearance of the accused, charges were framed against them for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, they came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P8 and MOs 1 to 4. 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 found the accused guilty of the offence under Sec.55(a) of the Abkari Act and convicted them thereunder. 6. Heard Sri. Joice George, the learned counsel appearing for the appellant/accused No.2 and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondents. 7. The learned counsel for the appellant challenged the Crl.A No.1300 of 2007 4 judgment of conviction and sentence on the following grounds: - (i) The alleged arrest is doubtful. - (ii) The prosecution failed to establish the conscious possession of the contraband substance by the appellant/accused No.2. - (iii) The prosecution also has not succeeded in proving that the arrack allegedly seized from the place of occurrence was actually examined in the Chemical Examiner's Laboratory. 8. The case of the prosecution is that on 24.04.2005 the appellant and the other accused were arrested from the place of occurrence by the Assistant Sub Inspector of Police, Munnar Police Station (PW3). 9. The learned counsel for the appellant disputed the arrest of the accused on the ground that Ext.P3 series arrest memos contain the number of crime registered against the accused. Exhibit P3 series arrest memos mention the Crime No.81/2005 registered against the accused. While dealing with a similar fact situation this Court in Santhosh v. State of Kerala [2021 (5) KHC 214] held thus: “14. The presence of crime number in the arrest memo Crl.A No.1300 of 2007 5 prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758: 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)]” 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P3 series arrest memos, a doubt arises as to the manner in which the seizure and arrest were effected. 11. Even if the entire prosecution story is believed, the appellant/accused No.2 was driving the autorickshaw involved and arrack was seized from the back seat of the vehicle where the other accused was sitting. The learned counsel for the appellant contended that the prosecution has not established the conscious possession of the contraband substance by the appellant/accused No.2. While considering the question of possession, in the context Crl.A No.1300 of 2007 6 ## of the Abkari Act, this Court in Santhosh's case (supra) 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)]. 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’. Crl.A No.1300 of 2007 7 [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.” 12. In the instant case, the prosecution has not succeeded in proving that the appellant had any dominion or control over the articles found in the back seat of the vehicle in which the other accused was also travelling. Therefore, the prosecution has failed to show the conscious possession of the contraband substance by the appellant/accused No.2. 13. The properties, including the sample, were received by the Junior Superintendent of the Court, as is evident from Ext.P5 property list. It remained in the custody of the property clerk till 02.05.2005. Exhibit P8, the Certificate of Chemical Analysis, shows that the sample was forwarded to the laboratory as per letter dated Crl.A No.1300 of 2007 8 02.05.2005 of the Judicial First Class Magistrate, Devikulam. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. The necessary inference is that the sample was forwarded on 02.05.2005. Exhibit P8 further shows that the sample was delivered in the laboratory only on 28.06.2005 through a Police Constable No.1778. The custody of the sample during the period from 02.05.2005 to 28.06.2005 has not been explained by the prosecution. 14. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”. 15. The property clerk of the Court, the Junior Superintendent of the Court and the Police official who delivered the sample to the laboratory were not examined by the prosecution. The inevitable consequence of this omission is that the prosecution failed to prove Crl.A No.1300 of 2007 9 the tamper-proof despatch of the sample to the laboratory. 16. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that the sample reached the laboratory in a tamper-proof condition. 17. 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. 18. 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 the contraband reaches the laboratory is required to be established by the prosecution. 19. 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.A No.1300 of 2007 10 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 reemphasized 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]. 20. Where the prosecution failed to prove that the liquor Crl.A No.1300 of 2007 11 allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Exhibit P8, Certificate of Chemical Analysis has no evidentiary value. 21. 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 accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS