Thomas @ Joy v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943** **CRL.A NO. 1708 OF 2006** **AGAINST THE JUDGMENT IN SC 355/2005 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-II, THODUPUZHA, IDUKKI** ## **APPELLANT/ACCUSED:** THOMAS @ JOY S/O VARKEY,THAZHATHEDATHU HOUSE, MANAKAKKUNNU KARA, VATHIKUDY VILLAGE. BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. SYLAJA S.L. (P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.A.No.1708/2006 **'C.R.'** ## _**JUDGMENT**_ _Dated this the 14[th] day of July, 2021_ Aggrieved by the judgment dated 11.8.2006, passed by the learned Additional Sessions Judge, (Adhoc)-II, Thodupuzha, in Sessions Case No.355 of 2005, the accused has preferred this appeal. The trial court convicted the accused for the offence punishable under Section 8(2) of the Kerala Abkari Act. 2. The prosecution case is that on 30.11.2003, at about 03.00 P.M., the accused was found in possession of nine litres of illicit arrack in a can having a capacity of ten litres, concealed in his landed property at Kanakakkunnu Kara in Vathikkudy Village in Idukki District. 3. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Kerala Abkari Act before the Judicial First Class Magistrate Court, Idukki. The case was committed to the Sessions Court, Thodupuzha, from where it was made over to the trial court. On appearance of the accused, charges were framed against him for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. He pleaded not guilty and therefore, he came to be tried by the trial court for the abovesaid offences. 3 Crl.A.No.1708/2006 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exhibits P1 to P7, Exhibit C1 sketch of the scene and MOs 1 and 2. Exhibits D1 and D2 were marked on the side of the defence. 5. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. The accused pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce any evidence he may have in support thereof. 6. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 8(2) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act. 7. Heard Sri.C.M.Tomy, the learned counsel appearing for the accused and Smt.S.L.Silja, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the accused made the following submissions : (i) The prosecution failed to establish the conscious possession 4 Crl.A.No.1708/2006 of the articles, said to have been seized from the place of occurrence, by the accused. - (ii) The prosecution failed to establish that the very same contraband substance collected from the bulk quantity of the articles seized from the place of occurrence eventually reached the Chemical Examiner’s laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution has well established the charges against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## The point : 11. PW3, the Sub Inspector of Police, Murickassery, detected the offence. PW3 has given evidence that on 30.11.2003, at 02.30 P.M., while he was on patrol duty, on getting reliable information that the accused was keeping arrack for sale in his house at Kanakakkunnu, he proceeded to the place of occurrence. PW3 further gave evidence that the accused took out a can, that contained nine litres of illicit arrack, from a pit. According to PW3, the accused confessed that he had concealed the arrack in the pit. He seized the contraband substance as per Exhibit P1 seizure mahazar and collected 500 ml. of arrack from the 5 Crl.A.No.1708/2006 can as sample in a bottle. The accused was arrested from the scene of occurrence. PW3 registered Crime No.127 of 2003 on the basis of Exhibit P1 seizure mahazar. PWs 1 and 5, the independent witnesses, did not support the prosecution case. 12. PW2, the then Village Officer, Vathikudy, who had prepared Exhibit C1 sketch, gave evidence in support of the prosecution. PW4 completed investigation and submitted final report before the committal court. 13. The learned counsel for the accused contended that the evidence of PW3, to the effect that the accused confessed that he had concealed the contraband substance in a pit in the landed property in his possession, is not admissible in evidence in view of the bar contained in Section 25 of the Evidence Act. The learned Sessions Judge has proceeded on the premise that the statement of the accused regarding concealment of the contraband substance was not a “confession”, but the statement is admissible under Section 8 of the Evidence Act. 14. The term "confession" is nowhere defined in the Evidence Act. All the provisions relating to confession come under the heading "admission". Section 17 defines "admission" as "a statement, oral or documentary, which suggests any inference as to any fact in issue or 6 Crl.A.No.1708/2006 relevant fact". Thus, in terms of the Act, a confession is a statement made by a person charged with a crime suggesting that he is guilty of the crime. 15. James Fitzjames Stephen, Q.C., the draftsman of the Indian Evidence Act in his book “A Digest of the Law of Evidence” (Macmillan and Co. 1876) defines confession as follows : _“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”_ 16. While considering the term confession in _**Pakala Narayan Swami v. Emperor** [AIR 1939 P.C. 47]_ , Lord Atkin observed thus : _“A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession, for example, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man's possession. The definition is not contained in the Evidence Act, 1872 ; and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime.”_ 17. The statement of the accused admitting in terms of the offence alleged against him is nothing short of a confession. In the instant case, what has been sought to be proved through PW3, the detecting officer, is the statement of the accused, allegedly given to him, that he had concealed illicit arrack in a pit in his landed property. This 7 Crl.A.No.1708/2006 is a voluntary and direct acknowledgment of guilt and resultantly a confession. A confessional statement made by a person to the Police even before he is accused of any offence is equally irrelevant. Even if the accusation is subsequent to the statement, the statement cannot be proved [See _**Ramesh Chandra Mehta v. State of West Bengal** (AIR 1970 Supreme Court 940)]_ . Such a statement is inadmissible and is hit by the provisions of Section 25 of the Evidence Act. It is highly profitable to dwell upon the observation made by the celebrated author James Fitzjames Stephen, Q.C. that Sections 25, 26 and 27 were transferred to the Evidence Act _verbatim_ from the Code of Criminal Procedure, Act XXV of 1861 and they were inserted in the Act of 1861 in order to prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody [See “An Introduction to the Indian Evidence Act, the Principles of Judicial Evidence” (Page 171)]. I have no hesitation to hold that the statement allegedly given by the accused to PW3, that he had concealed illicit arrack, should not have been utilised for convicting the accused. 18. The statement in Exhibit P1 seizure mahazar, that the accused while in custody made a confession that the contraband substance was concealed in a pit in his landed property, and recovery of the same from the place of concealment can be proved, if at all, only in 8 Crl.A.No.1708/2006 ## terms of Section 27 of the Evidence Act. 19. Section 27 of the Evidence Act reads thus : _"_ _**27. How much of information received from accused may be proved.** —Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."_ 20. Going by the facts and evidence, the accused had confessed while in custody about the concealment of the contraband in his property. But, there are serious irregularities in the manner of recording the alleged confession to be used in Section 27 of the Evidence Act and the manner of proving the confession. 21. It is settled that the expression "whether it amounts to a confession or not", contained in Section 27 of the Evidence Act, has been used in order to emphasize the position that even though it may amount to a confession, that much of information, as it relates distinctly to the fact thereby discovered, can be proved against the accused. The term “fact discovered” has been interpreted that they embrace the place from which the object was discovered, the knowledge of the accused as to it; but the information given must relate distinctly to that fact. This is to mean that the authorship of concealment is the relevant fact. 22. In C.D. Field's Commentary on Law of Evidence (13[th] 9 Crl.A.No.1708/2006 Edition, page 2263), the learned author, relying on various authorities, describes the procedure to be adopted, in the matter of recording and proving information as referred in Section 27 of the Evidence Act, as follows : (i) Whenever Police Officer is intimated that the accused proposes to give information leading to discovery he should proceed to record it as far as possible in the language spoken by the accused and in the first person. (ii) Although as a matter of law, the presence of witnesses at the time of recording information is not necessary but as a matter of prudence, the Police Officer should secure the presence of reliable witnesses, if such witnesses are available without much inconvenience or difficulty. (iii) As regards the proving of such information, ordinarily the Police Officer or the witness should state in court from memory what information was given by the accused and if such a witness is in a position to give the precise information he should do so without referring to the written memo containing the information. (iv) If the Police Officer or the witness on account of lapse of time or otherwise, is not in a position to state with the help of memory what the information was thus makes out a case for referring to the 10 Crl.A.No.1708/2006 memo, for refreshing his memory, he is entitled to do so. But, even then he should not merely remain content by proving his signatures on the information memo, but should reproduce in Court the information given. 23. In the instant case, the detecting officer had not recorded the alleged confession of the accused as required. He has failed to prove the information in the manner required by law. The prosecution witnesses failed to testify properly about discovery of a relevant fact. The alleged confession was not sought to be proved through the detecting officer or through any of the witnesses to Exhibit P1 seizure mahazar. Therefore, the confession allegedly made by the accused regarding concealment of the contraband substance in a pit in his landed property cannot be used against him. The inevitable consequence is that the prosecution failed to establish that the accused concealed the contraband substance as alleged by the prosecution. 24. The learned counsel for the accused further submitted that the finding of the learned Additional Sessions Judge, that the statement of the accused confessing concealment of illicit arrack in a pit is admissible under Section 8 of the Evidence Act, is not sustainable. 25. Section 8 of the Evidence Act reads thus : - _**"8. Motive, preparation and previous or subsequent**_ 11 Crl.A.No.1708/2006 _**conduct.** —Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact._ _The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto._ _Explanation 1.—The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act._ _Explanation 2.—When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."_ 26. The Explanation 1 of Section 8 of the Evidence Act declares, in the first instance, that for the purpose of Section 8 the word “conduct” does not include statements. What is relevant under Section 8 is the conduct of the parties and not their statements. Explanations to Section 8 proceed to recognise two exceptions where statements may be admitted. As per Explanation 1 evidence can be given of a statement which either accompanies some conduct or explains acts other than statements. The second Explanation says that evidence can be given of statements which influence or affect the conduct of a person whose conduct is otherwise relevant. Therefore, the word “conduct” in Section 8 would not embrace within its ambit statements themselves given by the accused to a Police Officer. Hence the statement regarding the concealment of illicit arrack allegedly given by the accused to PW3 will 12 Crl.A.No.1708/2006 never come under Section 8 of the Act. 27. The learned counsel for the accused also contended that the prosecution failed to establish that, the landed property from where the illicit arrack was allegedly recovered, was in the possession of the accused. The prosecution relied on the oral evidence of PW3, the detecting officer, and that of PW2, the Village Officer, and Exhibit C1 sketch of the scene to establish that the landed property and the building therein belonged to the accused. PW2, the Village Officer, has given evidence that he could not conclude that the property was in the possession of the accused at the relevant time. PW2 added that as per the revenue records, the property was in the name of the accused. He further stated that the building in the land was uninhabited. According to PW2, the approximate extent of the land is 3½ Acres. PW2 testified that the landed property from where the contraband substance was recovered had no boundaries separating the neighbouring lands. He further stated that, in respect of the land in question, no patta had been issued from the Revenue Department. He had no direct knowledge regarding the possession and ownership of the land from where the contraband substance was recovered. The resultant conclusion is that the prosecution failed to establish that, at the relevant time, the accused was in the exclusive possession of the land from where the contraband 13 Crl.A.No.1708/2006 substance was recovered. 28. The learned counsel for the accused further contended that the prosecution failed to establish that the very same illicit arrack allegedly collected as sample from the scene of occurrence eventually reached the Chemical Examiner’s laboratory. The learned counsel for the accused relied on the following circumstances to substantiate his contentions: (a) PW3, the detecting officer, has not narrated the nature and description of the seal affixed on the sample, in Exhibit P1 seizure mahazar. PW3 has also not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. (b) Exhibit P6, the copy of the forwarding note, is silent as to the name of the person with whom the sample was sent to the Chemical Examiner’s laboratory and as to the date on which the sample was forwarded to the laboratory. 29. The oral evidence of PW3 is silent regarding the nature of the seal affixed on the bottle containing the sample. Exhibit P1 does not contain any description as to the nature of the seal used. 30. In _**Bhaskaran. K. v. State of Kerala and another** (2020 KHC 5296)_ and in _**Krishnadas v. State of Kerala** (2019 KHC 191)_ , this Court held that the detecting officer has to give evidence as to 14 Crl.A.No.1708/2006 the nature of the seal affixed on the bottle containing the sample and the specimen of the seal shall be produced in the court so as to enable the court to satisfy the genuineness of the sample produced in the court. 31. In Exhibit P6 the name of the official, with whom the sample was sent to the Chemical Examiner’s laboratory, has not been mentioned. The date on which the sample was forwarded to the Chemical Examiner’s laboratory is also not mentioned in Exhibit P6. Exhibit P7, certificate of chemical analysis, shows that the sample was received in the laboratory through a Police Constable No.2216. It is not discernible as to why the name of the Police Official, who received the sample from the court for delivering the same to the Chemical Examiner’s laboratory, was not mentioned in Exhibit P6. The learned Magistrate failed to write the date on which he affixed his signature in Exhibit P6. This Court is kept in the dark as to who received the sample from the court and on which date. In these circumstances, in order to establish tamper-proof despatch of the sample to the laboratory, it was imperative for the prosecution to examine the property clerk of the court or the Police Official who received the sample from the court and handed over the same to the Chemical Examiner’s laboratory. [See _Kumaran v. State of Kerala (2016 (4) KLT 718)]._ 32. Admittedly, the sample changed several hands. The 15 Crl.A.No.1708/2006 prosecution has not examined those officials who handled the sample after the same was produced before the court. 33. The learned counsel for the accused contended that the unexplained delay in the analysis of the sample is also fatal to the prosecution. Exhibit P7, certificate of chemical analysis, shows that the sample reached the laboratory on 04.12.2003, but the same was analysed only on 24.12.2004. In the instant case, the delay of more than one year in analysing the sample has not been satisfactorily explained. This is also a suspicious circumstance, the benefit of which must go to the accused. 34. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused {See _**State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314)_ **,** _**Valsala v. State of Kerala** (1993 KHC 798),_ _**Sathi v. State of Kerala** [2007 (1) KHC 778]}_ . 35. Mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 16 Crl.A.No.1708/2006 36. In the instant case, the prosecution was unable to establish the link connecting the accused with the illicit arrack seized and the sample analysed in the laboratory. 37. The result of the above discussion is that the conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. The accused is acquitted of the charge under Section 8(2) of the Abkari Act. He is set at liberty. The Criminal Appeal is allowed as above. Sd/- **K.BABU, JUDGE** csl/KAS