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2008 DIGILAW 603 (KER)

Radhakrishnan v. Staet Of Kerala

2008-09-29

THOMAS P.JOSEPH

body2008
Judgment : Revision petitioner stands convicted for offence punishable under Section 55(a) of the Abkari Act (hereinafter referred as 'the Act') for allegedly keeping in his possession rectified spirit meant for illicit manufacture of arrack, plastic cans and meter to gauge concentration of arrack which is said to have been detected by Sub Inspector of Police and party on 26.10.1996 at about 3 p.m. Learned Magistrate found him guilty, convicted and sentenced him to undergo rigorous imprisonment for one year and payment of fine of Rs.25,000/-. Appeal preferred by him was dismissed. Hence, this revision. 2. Heard. Perused the records. 3. Learned counsel for revision petitioner argued that there is no evidence to show that revision petitioner was in possession of the contraband, there is no proper sealing of material objects as found by learned Sessions Judge and at any rate, no offence under Section 55(a) of the Act is made out. 4. Case is that while the Sub Inspector and party were on patrol duty, he got information about storing of rectified spirit in Thaiparambil house allegedly belonging to revision petitioner, Sub Inspector prepared search memorandum and sent to court and reached the said house at about 3 p.m. Sub Inspector found rectified spirit in two cans, 16 empty cans, sealing machine and meter to gauge concentration of arrack kept in that house. Those articles were taken to custody as per Ext.P1, mahazar. Revision petitioner was arrested at spot. Sub Inspector registered case against revision petitioner. Ext.P4 is the F.I.R. On the information allegedly given by revision petitioner, a scooter was seized from the workshop of PW4 as per Ext.P5 dated 27.10.1996. PWs 2 to 4 are witnesses to said incident but refused to support the prosecution. PWs 2 and 3 admitted their signature in Ext.P1 but claimed that they were made to sign the document at the police station. PW5 is an attestor to Ext.P5 but did not support. PW1, Constable and PW7, Sub Inspector gave evidence regarding alleged seizure. They stated in tune with Ext.P1 and claimed that revision petitioner was arrested at spot. PWs 1 and 7 identified MOs 1 to 6 as the articles seized from the house in question. PW6, Village Officer was examined to prove the certificate issued by him. PW1, Constable and PW7, Sub Inspector gave evidence regarding alleged seizure. They stated in tune with Ext.P1 and claimed that revision petitioner was arrested at spot. PWs 1 and 7 identified MOs 1 to 6 as the articles seized from the house in question. PW6, Village Officer was examined to prove the certificate issued by him. His evidence is that the property comprised in R.S.No.91/19 where the house in question is situated, stood in the name of Kochukutty, father of revision petitioner. I have gone through the evidence of PWs 1 and 7 and find no reason to disbelieve their evidence. 5. Point for consideration is whether revision petitioner was in possession of MOs 1 to 6. According to learned counsel, Ext.P2 or evidence of PW6 is not sufficient to prove de jure or de facto possession of house in question with revision petitioner. Learned counsel says that PW6 was not competent to prove possession of the house in question. 6. Though it was suggested to PW7 that sister and brother-in-law of revision petitioner were also staying in the house in question at the relevant time, that was denied by PW7. He admitted in cross-examination that the house in question belonged to Kochukutty, father of revision petitioner and that at the relevant time, Kochukutty and his wife, Janaki (parents of revision petitioner) were also staying in the same house. PW7 has not attempted to peruse the ration card of the house nor has he verified the voters list. The only evidence adduced by the prosecution to show that the house in question was in the possession of revision petitioner is Ext.P2 and testimony of PW6 which do not in any way go in favour of prosecution since, as per that evidence the property where the house is situated stood in the name of Kochukutty, father of revision petitioner. When the land where the house is situated belonged to Kochukutty, one has to presume in the absence of contra evidence that the house also belonged to Kochukutty. If the house belonged to Kochukitty, and particularly as he was also residing in that house, the articles kept in that house also, in the absence of contra evidence, should belong to him. In Madhavi v. State of Kerala (1963 KLT 659) dealing with such a situation it was pointed out that "........ If the house belonged to Kochukitty, and particularly as he was also residing in that house, the articles kept in that house also, in the absence of contra evidence, should belong to him. In Madhavi v. State of Kerala (1963 KLT 659) dealing with such a situation it was pointed out that "........ In cases where the facts warrant it, a presumption of possession of the article recovered from a house may be raised against such members of the household as are in a position to control its affairs provided they were aware of the presence of the offending article. ........". Again in Appukuttan Kasaba v. State of Kerala (1964 KLT 683) it was held dealing with a similar situation that - ".......... It has to be presumed that the head of the family is responsible for the contraband found in the house because according to common course of human conduct the head of the family can, if he does not desire its presence in his house, secure its removal irrespective of the wishes of the other members of the household. ......." In the case on hand, there is nil evidence to show that revision petitioner was the head of the family at the relevant time. I found from the evidence that the house belonged to and in the possession of revision petitioner's father Kochukutty. I also stated that documents like the ration card, voters list, etc. which may have indicated that revision petitioner was the head of the family were not collected by PW7. As such, conviction of revision petitioner on the presumption that he was in possession of the contraband at the relevant time cannot be sustained. Resultantly, Revision Petition is allowed. Conviction and sentence imposed on the revision petitioner are set aside. He is acquitted of the charges made against him. Bail bond is cancelled. Crl.M.P.No.6835 of 2001 shall stand cancelled.