Uthaman and Leela v. State of Kerala and The Sub Inspector of Police, Mannar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938** ## **CRL.REV.PET.NO. 1220 OF 2005 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.111/2000 OF ADDITIONAL SESSIONS JUDGE-II, MAVELIKKARA DATED 08.02.2005** **AGAINST THE JUDGMENT IN CC NO.375/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHENGANNUR** **-------------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **---------------------------------------** **1. UTHAMAN, AGED 42 YEARS, S/O.RAMANKUTTY, KIZHAKKETHIL VEEDU, THRIPPERUMTHURA VILLAGE.** **2. LEELA, AGED 36 YEARS,** - **W/O.UTHAMAN KIZHAKKETHIL VEEDU, THRIPPERUMTHURA VILLAGE.** **BY ADV. SRI.S.HARIKRISHNAN** **RESPONDENT(S)/COMPLAINANT :** **------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. THE SUB INSPECTOR OF POLICE, MANNAR.** **BY PUBLIC PROSECUTOR SRI. C.N.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** --------------------------- ## **Crl.R.P. No.1220 of 2005** ---------------------------------------------Dated this the 14[th] day of October, 2016 ## **O R D E R ----------------** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.111 of 2000 of the Additional Sessions Judge-II, Mavelikkara. They were charge sheeted in C.C. No.375 of 1996 by the Judicial First Class Magistrate Court, Chengannur for the offences under Sec.55(b) and (h) of the Abkari Act. The learned Magistrate acquitted the accused under Sec.55(h) of the Abkari Act, convicted them and sentenced them to undergo simple imprisonment for six months each and fine of Rs.25,000/- each, in default simple imprisonment for two months under Sec.55(b) of the Abkari Act. Against that, they preferred the above Criminal Appeal, where the learned 2[nd] Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 04.10.1996 at 10.30 p.m., the Sub Inspector of Police, Crl.R.P. No.1220 of 2005 2 Mannar got information that the accused were manufacturing arrack in their house in Thripperumthura village and they reached at the house at 11.00 p.m., at that time the accused were found manufacturing arrack in the veranda of their house. On seeing the Police party, the 1[st] accused ran away, the 2[nd] accused (wife of the 1[st] accused) was standing at the verandah. The Police party recovered 3½ litres of arrack and utensils from there. Thereafter, they registered a crime and after completing investigation laid charge in the trial court. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P4 as documentary evidence. MO1 to MO8 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. 3. Heard both sides. Learned counsel appearing for the revision petitioner contended that no evidence has been adduced by the prosecution to show that the accused were manufacturing arrack in their house. The sample was not properly sealed and the procedure for ## Crl.R.P. No.1220 of 2005 3 taking sample was not complied by the detecting officer. There is no guarantee that the seized articles were properly forwarded by the Police officers to the chemical examiner's lab. Therefore, Ext.P4 report is not believable. 4. While adverting to the first contention, I have examined the decision of the Apex Court in **Mohanlal V. State of Rajasthan [2015 (5) SCALE 330]** held that; “ The term “possession” for the purpose of Sec.18 of the NDPS Act could mean physical possession with animus custody, or domain over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the “Chattel” i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the appellant, we hold, had the requisite Crl.R.P. No.1220 of 2005 4 degree of control when, even if the said narcotic substance was not within his physical control at that moment. ” 5. In this context, I have examined whether there is any evidence to prove the possession of the house. Prosecution examined PW1, to prove the seizure. His evidence shows that on 04.10.1996 at 10.30 p.m., the Principal Sub Inspector got information that the revision petitioners were manufacturing arrack in their house. Immediately the Police party went to the house and found the accused manufacturing arrack. On seeing the Police officials, the 1[st] accused ran away. Immediately they prepared a search memorandum, conducted a search and seized arrack. They took 350 ml as sample and sealed it at the place of occurrence itself. He identified the 2[nd] accused, the utensils and other articles seized by the Principal Sub Inspector. His evidence shows that there are several other houses near the place of occurrence and no documents were produced in the trial court to prove the possession of the house. PW2 supported the evidence of PW1. He admitted that the Sub Inspector prepared ## Crl.R.P. No.1220 of 2005 5 Ext.P1 mahazar and he put his signature at the place of occurrence itself. 6. PW3 is the Principal Sub Inspector who conducted search and seizure in this case. His evidence shows that he got information that the 1[st] revision petitioner was manufacturing arrack in his house and he arrived at the place of occurrence and identified the house and he prepared a search memorandum. Thereafter he conducted a search and seized arrack. Analysing the evidence of PW1 to PW3 it is clear that the possession of the home is not proved. He took sample and sealed it at the place of occurrence. Reaching at the police station, he registered a crime. Ext.P2 is the FIR. Ext.P3 is the Search Memorandum. He has not obtained any documents from the Panchayath authorities for proving the possession of the house. Moreover, no documents were produced or independent witnesses were examined in the trial court to prove that the house was in the possession of the revision petitioners and they were manufacturing arrack. 7. The second contention was that sample was ## Crl.R.P. No.1220 of 2005 6 not sealed and PW3 failed to follow the procedures of the Abkari Act. The evidence of PW3 shows that he took 350 ml as sample and sealed at the place of occurrence. His evidence shows that he got information about the manufacturing of arrack in a house. Immediately he arrived at the place of occurrence and identified the house, thereafter he conducted a search and seized arrack. PW1 and PW2 supported the evidence of PW3. He took 350 m.l. as sample and sealed it at the place of occurrence. His evidence shows that he has not taken specimen impression seal. Copy of the forwarding note was also not furnished along with the report. He also affixed label but independent witnesses and the accused were not put their signature in that label. This court in **Ravi v. State of Kerala [2011 (3) KLT 353]** observed that : “The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. (Vide State of Rajasthan ## Crl.R.P. No.1220 of 2005 7 v. Daulath Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala [1993 (2) KLT 550 (SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See Sathi v. State of Kerala [2007 (1) KLT SN 57 (C.No.82) and Sasidharan v. State of Kerala [2007 (1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant.” 8. No forwarding note was prepared by the investigating officer. This Court in **Rajamma v. State of Kerala [2014 (1) KLT 506]** held as follows: “Mere arrest of the accused with the material object is not sufficient to establish that the accused has committed the offence punishable under Sec.55(a) of the Abkari Act. The ## Crl.R.P. No.1220 of 2005 8 prosecution has got a further duty to prove that, when the accused was arrested she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis. In this case no forwarding note or requisition for sending the samples for chemical analysis is prepared and filed before the court. If a formal requisition or forwarding note is prepared and filed before the court, the same would have contained the sample seal, of the seal allegedly affixed by PW1 on the sample bottle. The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the ## Crl.R.P. No.1220 of 2005 9 absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with the sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” 9. In view of the legal infirmity in connection with search, seizure and identity of the house conviction and sentence passed by the trial court under Sec.55(b) of the Abkari Act are set aside. The accused are acquitted and set at liberty. This Criminal Revision Petition is disposed of as above. Sd/- **P.D. RAJAN , JUDGE** / True Copy / NS/19/10/2016 P.A. To Judge