Varkey, S/o Kurian v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937** **CRL.A.No. 1853 of 2004 (C)** **--------------------------AGAINST THE JUDGMENT IN SC 258/2003 of ADDITIONAL SESSIONS COURT (ADHOC-1), THODUPUZHA DATED 08-10-2004** **APPELLANT(S)/ACCUSED::** **---------------------** **VARKEY, S/O. KURIAN, PADIKARA HOUSE, THOPRANKUDY, VATHIKKUDY, IDUKKI DISTRICT.** **BY ADV. SRI.BABU S. NAIR** **RESPONDENT(S)/STATE::** **--------------------THE STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, IDUKKI-** **THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1853 of 2004 ---------------------------------------------Dated this the 5[th] day of January, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the conviction and sentence in S.C.No.258/2003 before Additional Sessions Judge (Adhoc-I), Thodupuzha u/s.55(g) of the Abkari Act. The charge against the accused is that on 23.8.2001 at 6.20 p.m., the Sub Inspector of Police, Murikkassery got information that the appellant was in possession of wash and utensils for manufacturing arrack in the Padikara House, Kanakakunnu in Thopramkudy. The Police party arrived at the place of occurrence and seized the wash and thereafter registered a case. After completing investigation, Circle Inspector of Police, Idukki laid charge Crl Appeal No.1853/2004 2 before Judicial First Class Magistrate, Idukki. From there the case was committed to Sessions Court, Thodupuzha, subsequently it was made over to Additional Sessions Court, Adhoc-1. 2. During trial prosecution examined PW1 to PW6 and marked Exts.P1 to P10 as documentary evidence and admitted MO1 and MO2 as material objects. The incriminating circumstances brought out in evidence were denied by the accused, while questioning him u/s.313 Cr.P.C. He was also heard u/s.232 Cr.P.C. Ext.D1 was marked as defence evidence. The learned Additional Sessions Judge convicted the accused u/s.55(g) of the Abkari Act and sentenced to imprisonment for three months and fine of 1₹ lakh in default, simple imprisonment for one month. Being aggrieved by that, he preferred this Criminal Appeal. 3. The main contention of the appellant is that Crl Appeal No.1853/2004 3 there is delay of 15 days in producing the seized article before Court and no documentary evidence has been produced to prove the conscious possession of the house. There are seven members residing in the house and no evidence had been produced to prove the possession of the articles by the appellant, therefore the conviction and sentence passed by the trial Court are illegal. 4 The learned Public Prosecutor contended that that the appellant is the head of the family and he cannot avoid the criminal liability, when illicit articles and materials were seized from his residence. No documentary evidence has been adduced by the appellant to show that he is not in possession of that house. 5. As a general rule a house can be searched only after obtaining a warrant from a Magistrate. But under Abkari Act, the warrant may be obtained from the Crl Appeal No.1853/2004 4 Commissioner of Excise or any officer empowered by the Government. But if there is reason to believe that any delay in obtaining a warrant would result in the concealment or destruction of evidence or facility for escape of the offender, then the officer may search without a warrant after recording the reasons. In this case, while PW1 was conducting patrol duty on 23.8.2001 at 5.30 pm, he got information that the appellant was making arrack in his house. PW1 prepared Ext.P1 search memorandum and arrived at the place of occurrence, the independent witness present there identified the house of the appellant, and PW1 started search at 6.15 p.m. While searching in the kitchen, he detected 20 litres of wash. He took sample, after preparing Ext.P2 mahazar. Material objects MO1 and MO2 were taken into custody, reaching at the Police Station, he registered a crime. Ext.P3 is the Crl Appeal No.1853/2004 5 FIR. 6. The Secretary of Vathikkudi Panchayat issued Ext.P9 Ownership certificate. He was examined as PW2 in the trial Court. His evidence shows that as per Ext.P9, the owner of the building X/686 was one Varkey, S/o. Kurian which was prepared on the basis of building tax assessment register. He issued another house number for the election purpose and these two numbers are different. The new house number is VGP X/686. He also deposed that he has to verify whether the requisition of house number VGP/543 was given or not. Even though PW2 was cross examined, nothing has been brought out to discredit his evidence. PW3 verified the investigation conducted by PW1. Analysing the evidence of PW1 to PW3, it is true that the search and seizure was proved by the prosecution. 7. The mahazar was attested by PW4 and PW5, but Crl Appeal No.1853/2004 6 they did not see the seizure. From the evidence of PW4 and PW5, what is seen is that while PW4 was proceeding in a motor bike, he happened to sign in Ext.P2 and PW5 signed in a blank paper. When accused was questioned u/s.313 Cr.P.C, he denied the house number and stated that he is not residing in that house and some others residing in the searched house. He is residing in House No.VGP VI/385, with his wife and children. Even though such a statement was made, while questioning him, he did not adduce any evidence to prove the possession of the house VGP VI/385. Therefore all the articles recovered in the course of house search were carefully packed and sealed in the presence of the search witness. The independent witness present turned hostile will not affect the probative value of search. Both witnesses admitted their signature in the mahazar and search list, if they were not enjoined at the Crl Appeal No.1853/2004 7 time of search then the question of irregularity can be claimed by the appellant. 8. On 24.8.2001, the appellant was produced before Court. Ext.P4 is the property list. The forwarding note was marked in the trial Court as Ext.P5. The chemical examination report was marked as Ext.P6. After preparing Ext.P7 and P8 mahazars, he obtained identity card and ration card. In Ext.P7, house Number is mentioned as X/543. In Ext.P8, house number is mentioned as X/686. This new house number was issued by PW2 on the basis of Ext.P9 Tax Assessment Register. On analysing the evidence of PW1, it is clear that he arrived at the place of occurrence and seized the articles from the house X/686. Even though PW1 was cross examined by the defence counsel, nothing has been brought out to discredit his evidence. It is true that he is competent witness to swear 8 Crl Appeal No.1853/2004 about the facts found at the place of occurrence. Apex Court in Tahir V. State of Delhi (1996 SCC Crl 515) held that no infirmity attached to the testimony of police officials merely because they belong to police force and there is no rule of l aw that a conviction cannot be made on the evidence of the police officials. Here PW1 who is a police officer, after careful scrutiny of the evidence, inspires confidence and it is reliable, there is no harm in admitting that evidence. 9. The ownership in a property or thing is the general inheritable right to use of that property or thing. Therefore, ownership is the ultimate right to the enjoyment of a thing fully as state permits. Thus the ownership in its wider sense denotes the relation between a person and any right that is vested in him. To own a piece of land means really own a particular kind of right 9 Crl Appeal No.1853/2004 over that land that is the jenmam right over land. But possession of a thing means the continuing exercise of a claim to the exclusive use of it. In possession, two things are necessary (1) a thing and (2) the mental feeling called animus possessendi. It is the conscious feeling of an individual to exclude others from the control of an object or thing. In normal possession when an owner is in actual physical control of an article there is no difficulty in understanding the position. But this is not always possible in certain cases. Possession is acquired whenever two elements of corpus and animus come into coexistence and loss of either will usually tend to destroy it. 10. Apex Court in **Mohan lal** v. **State of Rajasthan** [2015 (5) SCALE 330], while discussing Section 18 of the NDPS Act, explained the term possession under the Act and held as follows: Crl Appeal No.1853/2004 10 “From the aforesaid exposition of law it is quite vivid that the term “possession” for the purpose of Section 18 of the NDPS Act could mean physical possession with animus custody or dominion 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 of 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 of 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 degree of control when even if the said narcotic substance was not within his physical control at that moment.” 11 **.** It is evident from the oral evidence of PW1 and PW2 and from Ext.P9 ownership certificate that the appellant is in possession of the searched house. Crl Appeal No.1853/2004 11 Therefore, the finding of the trial Court that appellant is in possession of the house is valid, which does not warrant any interference. I am of the view that the trial Court considered the fundamental rules with regard to the appreciation of evidence and convicted the appellant. The prosecution evidence is sufficient to prove the guilt of the appellant beyond reasonable doubt. Therefore, the conviction and the sentence passed by the trial court are only to be confirmed. There is no merit in this appeal and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd