Viswambharan v. State of Kerala

'C.R' **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN** **MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945** **CRL.A NO. 696 OF 2007** **AGAINST THE JUDGMENT SC 254/2002 OF ADDITIONAL SESSIONS JUDGE (ABKARI), KOTTARAKKARA DATED 3-4-2007.** ## **APPELLANT/ACCUSED :** VISWAMBHARAN, S/O GOVINDAN, SHIJIMANDIRATHIL, PADINJATTINKARA, VELIYAM, KOLLAM DISTRICT. BY ADV.SRUTHY N.BHAT, AMICUS CURIAE ## **RESPONDENT/COMPLAINANT :** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## **OTHER PRESENT:** SMT.NIMA JACOB, P.P. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.01.2024, THE COURT ON 29-01-2024 DELIVERED THE FOLLOWING: Crl.Appeal No.696 of 2007 -: 2 :- **'C.R'** ## **JOHNSON JOHN, J.** ## **==============================** **Crl.Appeal No.696 of 2007** ## **==========================** **Dated this the 29[th] day of January, 2024** ## **J U D G M E N T** The appellant, who is the accused in S.C No.254 of 2002 on the file of the Additional Sessions Judge (Abkari Cases), Kottarakkara is challenging the conviction and sentence imposed on him for the offence punishable under Section 55(a) of the Kerala Abkari Act (for short 'the Act'). 2. As per the impugned judgment dated 03-04-2007, the appellant was convicted and sentenced to undergo Rigorous Imprisonment for two years and to pay a fine Crl.Appeal No.696 of 2007 -: 3 :- of Rs.1,00,000/- and in default of payment of fine to undergo Rigorous Imprisonment for three months for the offence under Section 55(a) of the Act. 3. The prosecution case is that on 28-10-2000 at 2.30 p.m., the accused was found keeping 4 litres of arrack in a 10 litre can on a slab on the southern courtyard of Shaji Mandiram House, near Vencose Junction in Veliyam Village. The offence was detected by the Assistant Sub Inspector of Pooyappally Police Station and party. 4. The trial court, after framing charge, examined PWs'1 to 5 and marked Exts.P1 to P5 and MOs' 1 and 2 from the side of the prosecution and no evidence was adduced from the side of the defence. 5. After trial and after hearing both sides, the learned Additional Sessions Judge found the accused Crl.Appeal No.696 of 2007 -: 4 :- guilty of the offence punishable under Section 55(a) of the Act and imposed the sentence as aforesaid. 6. Heard Adv.Sruthy N.Bhat, the learned counsel for the appellant and Smt.Nima Jacob, the learned Public Prosecutor. 7. The learned counsel for the appellant argued that the offence was detected by an Assistant Sub Inspector of Police, who is not an authorized officer to detect and investigate an offence under the Act. It is also argued that the detecting officer has not affixed the specimen impression of the seal used in the contemporaneous mahazar and the specimen impression of the seal is also not seen affixed in Ext.P3 property list. Further, the prosecution has also not marked a copy of the forwarding note and there is no material before the court to show when Crl.Appeal No.696 of 2007 -: 5 :- and how the sample was forwarded to the Chemical Laboratory. It is also argued that there is no evidence to prove that the accused was in possession or control over the alleged contraband items recovered in this case and in the absence of evidence to prove the dominion or control of the accused over the contraband items seized, he is entitled for the benefit of reasonable doubt. 8. PWs1 and 2 are the independent witnesses examined from the side of the prosecution and they turned hostile to the prosecution and deposed that they have not witnessed the occurrence. 9. PW3 was the then Assistant Sub Inspector of Pooyappally Police Station, who detected the offence at about 2.30 p.m. on 28-10-2000. According to PW3, the accused was standing in the southern courtyard of Crl.Appeal No.696 of 2007 -: 6 :- his house and on seeing the police party, he attempted to run away. But he was detained. PW3, further deposed that from a slab, a 10 litre black can containing 4 litres of arrack was recovered by preparing Ext.P1 mahazar. According to PW3, he has also taken samples in two bottles of 375 ml capacity and sealed the sample bottles and the can containing the remaining arrack. 10. The learned counsel for the appellant cited decisions of this Court in _**Subash v. State of Kerala (2008(2) KLT 1047)**_ and _**Mari Dhorai v. State of Kerala (2018(4) KLT 1204)**_ to show that an Assistant Sub Inspector is not an authorized officer to detect and investigate an Abkari offence and that as per the notification, SRO No.321 of 1996 of the Government of Kerala, the Officers of and above the rank of Sub Crl.Appeal No.696 of 2007 -: 7 :- Inspector of Police are Abkari Officers for the purpose of the Act and in this case admittedly PW3, who detected the crime was only an Assistant Sub Inspector of Police, who is subordinate to the Sub Inspector of Police and therefore, he is not authorized nor empowered to detect or investigate the Abkari offence. 11. A perusal of Ext.P1 mahazar and Ext.P3 property list clearly shows that the detecting officer has not affixed the specimen impression of the seal in the mahazar and the property list. In this case, the prosecution has also not marked the copy of the forwarding note and therefore, there is no material before the court to show when and how the sample was forwarded to the Chemical Laboratory. 12. In _**Sasidharan v. State of Kerala [2007 (1)**_ Crl.Appeal No.696 of 2007 -: 8 :- _**KLT 720 : 2007 KHC 3404]**_ , 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. 13. In _**Moothedath Sivadasan v. State of Kerala**_ _**[2021 (1) KLT 744 : 2021 KHC 3232]**_ , this Court held that when the specimen impression of the seal affixed on the seizure mahazar was not produced before the court, it was difficult to hold that, the sample which reached the chemical examiner’s lab was the sample taken from the contraband allegedly seized from the possession of the accused. 14. It is well settled that the specimen of the seal used is required to be affixed in the contemporaneous mahazar, property list and in the Crl.Appeal No.696 of 2007 -: 9 :- forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court. Further, the detecting officer has also a duty to depose regarding the nature of the seal affixed on the bottle containing the sample and the can containing the remaining liquor and in this case, PW3 has not deposed anything regarding the nature of the seal used by him. In cross-examination, PW3 would say that the property was entrusted to the Station House Officer for safe custody from the court and that he entrusted the said property to CW6. When CW6 was examined as PW5, he would say that MOs were in the custody of CW5, who is examined as PW3 in this case. As already stated in this case, the specimen impression of the seal is not affixed in the contemporaneous seizure mahazar and the property list Crl.Appeal No.696 of 2007 -: 10 :- prepared and further, the copy of the forwarding note is also not produced. Therefore, I find merit in the submission of the learned counsel for the appellant that there is ground to doubt the genuineness of the seizure of the contraband and the sample allegedly taken therefrom. 15. Another contention of the appellant is that the prosecution has not adduced any evidence to prove the identity, ownership and possession of the house and premises from where the contraband is alleged to be recovered. The evidence of PW3, Assistant Sub Inspector and PW4, Police Constable only shows that the accused was standing in the southern courtyard of his house in Veliyam village and on seeing the police party, he attempted to run away. PWs 3 and 4 have no case that they saw the accused holding or handling Crl.Appeal No.696 of 2007 -: 11 :- the alleged contraband at the time of occurrence. The evidence of PWs3 and 4 shows that they have not searched the house and there is no evidence in this case to show that the accused herein is residing in the said house or he was in exclusive possession of the said house and premises. 16. In _**Ravi C v. State of Kerala (2011(3) KLT 627)**_ , it was held by this Court 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. In the said decision, it was further held that even if the 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 Crl.Appeal No.696 of 2007 -: 12 :- same. In _**Santhosh v. State of Kerala (2021(5) KHC 214)**_ , it was held by this Court that unless the person who is said to be in possession of an article is having dominion or control over it, even if he is in physical possession of the same, that possession will not become constructive possession and in this case, the prosecution has not succeeded in proving that the accused was having dominion or control over the contraband seen placed on a slab at the time of occurrence and further, there is also no evidence in this case to show that the accused was in ownership or possession of the adjacent house or was residing in the said house at the time of alleged recovery of the contraband and therefore, the accused/appellant herein is entitled to the benefit of doubt and as such, the conviction and sentence imposed by the Crl.Appeal No.696 of 2007 -: 13 :- trial court is liable to be set aside. In the result, the appeal is allowed. The conviction and sentence imposed by the trial court against the appellant/accused are hereby set aside and he is acquitted of the offence punishable under Section 55(a) of the Kerala Abkari Act. The bail bond executed by the appellant/accused shall stand cancelled and he is set at liberty forthwith. Sd/- **JOHNSON JOHN, JUDGE** amk