Research › Search › Judgment

Kerala High Court · body

2023 DIGILAW 895 (KER)

Jinto S/o Sebastian v. State of Kerala

2023-11-13

SOPHY THOMAS

body2023
ORDER : 1. This revision is at the instance of the accused in S.C. No. 452 of 2012 on the file of Additional Assistant Sessions Judge-I, North Paravur, assailing the judgment in Crl. Appeal No. 21 of 2014 on the file of Additional District and Sessions Judge, North Paravur, which upheld his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that, on 17.06.2006 at 12.00 noon, the revision petitioner was found in possession of 7 litres of illicit arrack in a 10 litre can, at his residential house. PW-8-the Circle Inspector of Excise Range, Paravur, and excise party detected the offence while on patrol duty, on getting secret information that illicit arrack had been kept in the house of the revision petitioner. PW-9 investigated the case and laid charge sheet against the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 3. On appearance of the revision petitioner before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, read over and explained, to which he pleaded not guilty and claimed to be tried. PWs. 1 to 9 were examined, Exts.P1 to P15 were marked and MO1 was identified from the side of prosecution, to prove its case. 4. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 5. On analyzing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Sections 8(1) and 8(2) of the Abkari Act, and he was sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.1 lakh, and in default to undergo simple imprisonment for three months. 6. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No. 21 of 2014. The appellate court, on re-appreciating the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and hence the appeal was dismissed, against which he has preferred this revision petition. 7. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl. Appeal No. 21 of 2014. The appellate court, on re-appreciating the facts and evidence, found no reason to interfere with the conviction and sentence imposed by the trial court, and hence the appeal was dismissed, against which he has preferred this revision petition. 7. Now this Court is called upon to verify the legality, propriety and correctness of the concurrent findings of the trial court as well as the appellate court, convicting and sentencing the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 8. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 9. The learned Public Prosecutor submitted that, the revision petitioner was caught red handed along with the can containing 7 litres of illicit arrack, from the northern room of his residential house. PW-8 the detecting officer and official witnesses in the patrol party who were examined as PW-1 and PW-2, gave testimony in tune with the prosecution case. The sample taken from the contraband seized from the possession of the revision petitioner was sent for chemical analysis, and presence of ethyl alcohol was reported by the analyst. So, according to the learned Public Prosecutor, the prosecution proved its case beyond reasonable doubt, and so, there is nothing to interfere with the conviction and sentence imposed by the trial court as well as the appellate court. 10. Learned counsel for the revision petitioner pointed out the material defects, which according to him, will cut at the root of the prosecution case. He would say that, in Ext.P1 seizure mahazar, there is no specimen impression of the seal. The specimen impression of the seal affixed in the seizure mahazar prepared at the scene of occurrence, is an important factor to verify the genuineness of the sample which reached the lab. The prosecution is bound to establish that the sample taken from the contraband allegedly seized from the possession of the accused/revision petitioner at the scene of occurrence, is the very same sample which was produced before the court, and later before the chemical examiner for analysis. The prosecution is bound to establish that the sample taken from the contraband allegedly seized from the possession of the accused/revision petitioner at the scene of occurrence, is the very same sample which was produced before the court, and later before the chemical examiner for analysis. If the seizure mahazar, which is a contemporaneous document prepared at the scene of occurrence, bears the specimen impression of the seal, and the very same seal is found in the sample bottle, it will guarantee the genuineness of the sample, which reached the court and later before the lab. When the specimen impression of the seal is absent in the mahazar, it will be a ground to doubt the genuineness of the seizure of the contraband and the sample allegedly taken there from. 11. In Sasidharan vs. State of Kerala, 2007 (1) 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. 12. In Moothedath Sivadasan vs. 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. 13. Paragraph 12 of the decision Moothedath Sivadasan 2021 (1) KLT 744 reads thus: “12. No specimen impression of seal is seen affixed on Ext.P1 seizure mahazar prepared by PW-4. Further specimen impression of sample seal was not produced as an Exhibit in this case. Under the circumstances, it is very difficult to hold that the sample of the contraband allegedly seized from the accused has, in fact, reached the chemical examiner for analysis. It appears from Ext.P9 that the six sealed bottles marked 1 to 6 in the laboratory each containing 375 ml of clear and colourless liquid alleged to be spirit involved in Crime No 146/2000 of Iritty Police Station were received by the chemical examiner for chemical analysis. It is further stated in Ext.P8 that the seals on the bottles were intact and tallied with the sample seal provided. During the trial, the sample seal was not exhibited. It is further stated in Ext.P8 that the seals on the bottles were intact and tallied with the sample seal provided. During the trial, the sample seal was not exhibited. There is nothing on record to indicate that the sample seal was affixed in Ext.P1 seizure mahazar. Thus, there is absolutely no evidence to establish that the prosecution has proved the sample seal or specimen impression of the seal alleged to have been affixed on the sample by PW-4. In Rajamma vs. State of Kerala, 2014 (1) KLT 506 this Court held that 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 accused.” 14. In Bhaskaran vs. State of Kerala, 2020 KHC 5296 : 2020 (5) KLT Online 1057, this Court held that, the specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the court to satisfy the genuineness of the sample produced in the court. Moreover, the detecting officer, who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample. Further the nature of the seal used shall be mentioned in the seizure mahazar also. 15. The next ground taken up by the learned counsel for the revision petitioner is that, no forwarding note is seen produced or marked in the case on hand. On perusal of the records, it is found true that, no forwarding note is produced or marked by the prosecution. The investigating officer was duty bound to produce the forwarding note along with the articles seized before the jurisdictional Magistrate, and the specimen impression of the seal should have been impressed in the forwarding note also, to prove genuineness of the sample, and transparency of the procedure. Since no forwarding note is produced or marked by the prosecution, this Court is not in a position to verify whether it contained the specimen impression of the seal or not. 16. Though the chemical analysis report was seen produced before the court on 13.07.2007, the original was not seen marked. But a copy of the report was marked by the prosecution as Ext.P12. 16. Though the chemical analysis report was seen produced before the court on 13.07.2007, the original was not seen marked. But a copy of the report was marked by the prosecution as Ext.P12. The date of the reference letter is not mentioned in the report, though it is stated that the sample reached the lab on 04.07.2006. Without knowing, when the sample was sent to the lab, this Court is not in a position to verify whether there is delay in reaching the sample before the analyst. That also leaves room for doubting the genuineness of the prosecution case. 17. Another contention taken up by the learned counsel for the revision petitioner is that, though the prosecution case is that the detecting officer prepared search memo before conducting search and sent it to court, he deposed before court that the search memo reached the court only on 19.06.2006 i.e. after reaching the records and articles before the court. But, on going through Ext.P9 search memo, it could be seen that, it reached the court on 17.06.2006 itself. PW-8 without taking care, even to verify the date, gave evidence against the entry found in Ext.P9. 18. PW-8-the detecting officer was the Excise Circle Inspector. But, investigation was done by PW-9-the Excise Range Officer, who was his subordinate. When the detection is done by a superior officer, the subordinate officer, who is entrusted with the investigation, will be in a del ic ate position and he may find it difficult to go against the report of his superior officer, even if some facts comes to his way during the course of investigation, which goes against the detection and seizure. When detection is by a superior officer, investigation done by a sub-ordinate officer causes prejudice to the accused. So it is always preferable and desirable that in a case detected by a superior officer, investigation should be done by an officer of higher rank or even of same rank. 19. When detection is by a superior officer, investigation done by a sub-ordinate officer causes prejudice to the accused. So it is always preferable and desirable that in a case detected by a superior officer, investigation should be done by an officer of higher rank or even of same rank. 19. In Xavier vs. State of Kerala, 1998 (1) KLT 686 : 1998 KHC 128 this Court held that, when the complainant himself is a Police official, the investigation should have been conducted by his top ranking officer or else it will cause prejudice to the accused, as he will be deprived of his valuable rights of contradicting and corroborating the previous informations recorded under Sections 154 or 155 of Cr.P.C. and previous statement of the witnesses recorded under Section 161 of Cr.P.C. 20. In the case on hand, though the detection was on 17.06.2006, the witnesses were questioned by the investigating officer in the year 2009 i.e. after 3 years of detection, and prosecution has not offered any explanation for that delay. The final report also was laid against the revision petitioner after three years of the incident. 21. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Where there is unexplained delay in completing investigation and filing the final report, the same is fatal to the prosecution, [Reliance placed on Krishnan H. vs. State of Kerala, 2015 (1) KHC 822 and Chandran vs. State, 2016 (5) KHC 650 ]. 22. Learned counsel for the revision petitioner pointed out that, in the house from where the contraband was allegedly seized, several persons are residing including the parents, grandmother and siblings of the revision petitioner. Though he was also residing in that house, it cannot be said that, the contraband found inside the house was possessed by him. The case of PW-8 was that, when he entered the house of the revision petitioner for conducting search, the revision petitioner was taking the can from the berth of the northern side room. But, learned counsel pointed out that, in Ext.P6 site plan prepared by PW-5, no such berth is mentioned in any of the bed rooms. 23. The case of PW-8 was that, when he entered the house of the revision petitioner for conducting search, the revision petitioner was taking the can from the berth of the northern side room. But, learned counsel pointed out that, in Ext.P6 site plan prepared by PW-5, no such berth is mentioned in any of the bed rooms. 23. PW-3, an independent witness who was present in the house of the revision petitioner at the time of search admitted that, he signed the seizure mahazar, but, according to him, he had not seen the excise officials seizing illicit liquor from the possession of the revision petitioner. That witness was not declared hostile by the prosecution. Since PW-3 was not declared hostile, his testimony has to be accepted as such, as no hostility is brought out by the prosecution. 24. In Raja Ram vs. State of Rajasthan, 2005 KHC 1127 : (2005) 5 SCC 272 the Apex Court held that Unless a witness was declared hostile by the prosecution, his evidence is binding on the prosecution. Here the testimony of PW-3 cannot be surmounted by the prosecution as he testified in very clear terms that, he did not see the excise officials seizing anything from the possession of the revision petitioner. So, if at all the revision petitioner was present in his residential house, when PW-8 and excise party conducted search in his house, testimony of PW-3 is there to show that nothing was recovered from his possession. Simply because of the fact that, the revision petitioner also was residing in that house, it is not a ground to find that it was he who stored the contraband inside that house. 25. In Ravi C. vs. State of Kerala, 2011 (3) KHC 427 : 2011 (3) KLT 627 , this Court held 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. Even if 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 same. Paragraphs 22 to 25 of that judgment read thus: “22. Even if 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 same. Paragraphs 22 to 25 of that judgment read thus: “22. Thus, it will be clear 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. There is also no presumption either on facts or in law that an article which is seen kept or stored in a building or house is ‘stored’ or ‘possessed’ by the owner or occupier of the building. Even if 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 same. 23. The Supreme Court in Ismailkhan Aiyubkhan Pathan vs. State of Gujarat, 2000 KHC 1611 : (2000) 10 SCC 257 held thus: “There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under S.114 of the Evidence Act merely because these persons were present when PW-7 went there.” 24. Thus, the question whether a person ‘stored’ the article which is found kept in his house, or whether he is in ‘possession’ of such article does not depend merely on ownership or possession of the house. An owner or occupier of the building or house cannot be held liable for ‘storing’ or for ‘possession’ of such article, for the sole reason that he is the owner or occupier of the building or house. 25. The person who ‘stores’ an article in a building or house need not be in ‘possession’ of the same. Like wise, the person who is in ‘possession’ of an article might not have ‘stored’ it in the building. Therefore ‘possession’ does not follow ‘storage’ nor does ‘storage’ follows ‘possession’. ‘Possession’ and ‘storing’ connote different things. The facts to be proved to constitute ‘possession’ and ‘storing’ are different. ‘Possession’ as well as ‘storing’ of arrack are prohibited under the Act. Like wise, the person who is in ‘possession’ of an article might not have ‘stored’ it in the building. Therefore ‘possession’ does not follow ‘storage’ nor does ‘storage’ follows ‘possession’. ‘Possession’ and ‘storing’ connote different things. The facts to be proved to constitute ‘possession’ and ‘storing’ are different. ‘Possession’ as well as ‘storing’ of arrack are prohibited under the Act. Illegal possession and storing of arrack constitute independent offences under S.8(2) of the Act and each such act calls for separate punishments also.” 26. In Gunwantlal vs. State of M.P. 1972 KHC 464 : (1972) 2 SCC 194 the Apex Court held that ‘Possession’ does not mean only physical or actual possession but includes constructive possession. If there is any disputed question of possession, specific facts admitted or proved will alone establish the existence of the dominion of the person over it, necessary to determine whether that person was or was not in possession of the thing in question. 27. In Santhosh vs. State of Kerala, 2021 (5) KHC 214 : 2021 (4) KLT Online 1150, this Court held that, unless the person who is said to be in possession of an article is not having dominion or control over it, even if he is in physical possession of the same, that possession will not become constructive possession. 28. Prosecution failed to prove the dominion or control over the contraband by the revision petitioner if at all he was also residing in the house from where the contraband was seized. 29. For the aforementioned reasons, there is every reason to find that prosecution failed to prove its case beyond reasonable doubt. The absence of specimen impression of the seal in the seizure mahazar, absence of forwarding note, absence of property list, delay in investigation, delay in filing charge sheet, etc. etc. are circumstances, pointing against the genuineness of the prosecution case. So, the conviction and sentence imposed on the revision petitioner by the trial court as well as the appellate court without noticing these vital aspects are liable to be set aside. 30. In the result, the impugned judgments are hereby set aside. The revision petitioner is found not guilty of the offences alleged under Sections 8(1) and 8(2) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. 31. 30. In the result, the impugned judgments are hereby set aside. The revision petitioner is found not guilty of the offences alleged under Sections 8(1) and 8(2) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. 31. The revision petition accordingly stands allowed.