Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 26TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944 AGAINST THE ORDER/JUDGMENTSC 71/2005 OF ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA CP 123/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ADOOR APPELLANT/ACCUSED: RAMACHANDRAN S/O. RAGHAVAN, JAYESH BHAVANAM, THENGAMAM MURI, ADOOR TALUK. BY ADVS. SMT.D.P.RENU,CGC, D.P.RENU RESPONDENT/COMPLAINANT: STATE, REP. BY THE EXCISE INSPECTOR, ADOOR RANGE (PUBLIC PROSECUTOR, HIGH COURT OF KERALA). BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.BABU, J.
-------------------------------------- Criminal Appeal No.2153 of 2007 --------------------------------------- Dated this the 26th day of May, 2022
JUDGMENT
Aggrieved by the judgment dated 31.10.2007 passed by the Additional Sessions Court(Ad-hoc-I), Pathanamthitta in Sessions Case No.71 of 2005, the accused has preferred this appeal. The appellant/accused was convicted under Sections 55 (a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of four years and pay fine of Rs.1 Lakh.
2. The prosecution case is that on 08.03.2003 at 1.15p.m the accused was found in possession of 350 litres of spirit in 10 cans kept in the building bearing No. XVI/130 of Pallickal Village at Thengamam.
3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made
over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences.
4. The prosecution examined PWs 1 to 9 and proved Exts. P1 to P11 and MOs 1 to 9. Exts. C1 & C1(a) were marked as Court Exhibits.
5. After the closure of the evidence on behalf of
the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232
Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of four years and pay a fine of Rs.100,000/- under Section 55(a) of the Abkari Act.
6. Heard Smt.Renu.D.P, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State.
7. The learned counsel for the appellant/accused submitted as follows:
(i) The prosecution failed to establish the identity of the person who was found in possession of the contraband articles at the place of occurrence.
(ii) There is delay in the production of the sample and the other properties before the Court.
(iii) The prosecution failed to establish that the contraband articles allegedly seized from place of occurrence eventually reached the Chemical Examiner's Laboratory.
(iv) The prosecution failed to establish the conscious possession of the contraband substance by the accused.
8. The learned Public prosecutor submitted that the prosecution successfully established the offence alleged against the accused.
9. The learned counsel for the appellant submitted
that the prosecution miserably failed to establish the identity of the person who was found in possession of the contraband articles. According to the prosecution, on seeing the excise team the accused ran away from the
place of occurrence. The excise team could not apprehend him from the place of occurrence. He was arrested subsequently on 25.05.2003 by PW3, the Investigation Officer. No test identification parade was conducted. As
per the prosecution case, PWs 1 and 2 have no case that they had any previous acquaintance with the appellant. They identified the appellant in the Court in the year 2007 after a long lapse of four years. There is nothing on record to show that the witnesses who identified the accused had any opportunity to see him after the incident. Going by their evidence they had only a fleeting glimpse of the person ran away from the scene.
10. It is well settled that where a witness identifies an accused, who is not known to him, in the Court for the first time, his evidence is absolutely
valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation, it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court [vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 SC 254], State (Delhi
Administration) v. V.C.Shukla and another [AIR 1980 SC 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 SC 367]. So, on this ground alone the prosecution must fail.
11. The second contention of the learned counsel for the appellant is that, there is delay in sending the
properties, including the sample, to the Court. The alleged incident took place on 08.03.2003. Exhibit P6, the list of properties sent to the Court, shows that the material objects were produced before the Court on 10.03.2003. The prosecution has not given any satisfactory explanation for the delay in sending sample and the other articles before the Court.
12. In Ravi v. State of Kerala [2011 (3) KHC 121] on the question of delay in production of properties, a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows:
1. It is not necessary to produce the article
seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.”
In Ravi's case (supra) the Division Bench held that production of property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property.
13. There is no satisfactory explanation for the
delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out.
14. The learned counsel for the appellant/accused further contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. The learned counsel relied on the following circumstances to substantiate her contentions:-
a) No specimen seal was produced before the Court to ensure the genuineness of the sample produced before the Court. b) Ext.P3, seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. c) No forwarding note/requisition for sending sample to the laboratory was prepared, produced and marked.
15. I have carefully gone through Ext.P3, seizure mahazar and the other contemporaneous documents prepared by the detecting officer. Ext.P3 does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The detecting officer has not given evidence as to the nature and description of the seal used. There is nothing to show that the specimen of the seal was produced before the Court to ensure the genuineness of the samples produced before the Court. As also no forwarding note/requisition for sending sample to the laboratory was
produced and marked. The bottles containing the sample remained in the custody of the property clerk of the Court, the excise guard who received the samples from the Court and Sri. Gireesh Kumar, the excise guard who delivered the sample in the laboratory. These officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with.
16. The crux of the offences under the Abkari Act,
by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory.
17. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof
condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when it reaches the laboratory is required to be established by the prosecution.
18. In Sasidharan v. State of Kerala (2007 (1) KLT 720), this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the
sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner in a tamper- proof condition. Relying on State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314) in Sasidharan (supra) this Court
held that where sample changed several hands before
reaching the Chemical Examiner, the prosecution had to necessarily examine the various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. In Sathi v. State of Kerala 2007 (1) ILR 718 (Ker.), this
Court re-emphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc. of the contraband to be sent for Chemical Examination. In Sathi (supra), this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was shown to have been performed. This Court specified that the presumption under S. 114(e) of the Evidence Act has no application in circumstances where official acts are not shown to be performed properly. The ratio in Sasidharan (supra) and Sathi (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala (2011 (3) KLT 353).
19. In Bhaskaran v. State of Kerala (2020 KHC 5296), this Court held that the nature of the seal used
by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the court.
20. In Rajamma v. State of Kerala (2014 (1) KLT 506), this Court held that if the specimen of the seal
affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report.
21. In Ramachandran v. State of Kerala [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory.
22. In view of the discrepancies in the evidence
noted above, this Court comes to the conclusion that the prosecution failed to establish the link evidence to ensure that the contraband allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory.
23. Another aspect that requires consideration is that the prosecution has not given evidence as to the date on which the bottles containing the sample were forwarded to the Chemical Examiner's Laboratory. Ext.P10, Certificate of Chemical Analysis shows that the Chemical Analyst received 10 sealed bottles each containing 200 ml clear and colorless liquid as per letter dated 17.05.2003 of the Judicial First Class Magistrate, Adoor. Ext.P10 further shows that the bottles containing the sample received in the laboratory
on 26.05.2003. Prosecution has not offered any explanation as to the delay in bringing the samples to the laboratory after obtaining the same from the Court. The excise guard, Sri.Gireesh Kumar who delivered the bottles containing the sample, was not examined as a witness. The consequence of this omission is that the prosecution failed to establish the tamper proof despatch of the sample from the Court to the Laboratory.
24. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus:
“Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”
25. In the absence of any satisfactory explanation
for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition.
26. The learned counsel for the appellant further contended that the prosecution failed to establish the conscious possession of the contraband substance by the
accused. As per the prosecution case, on seeing the Excise team, the accused ran away from the premises of the building from where the contraband substances were recovered. The prosecution has not proved the that the accused was in the actual possession of the spirit involved.
27. In order to bring home charge under Section 55(a) of the Abkari Act, the prosecution has to establish the conscious possession of the contraband substance by the accused.
28. On the question of possession, in the context of Abkari Act, this Court in Santhosh v. State of Kerala [2021 (5) KHC 214] held thus:-
“20. The word 'possession' is not defined in the Abkari Act. The Halsbury's Laws of England, (5th edition, para 834), defines 'possession' as follows: “834. Physical and legal possession distinguished. 'Possession' is a word of ambiguous meaning, and its legal senses do not coincide with the popular sense. Its meaning depends upon the context in which it is used. In English law it may be treated not merely as a physical condition protected by ownership, but as a right in itself. The word 'possession' may mean effective, physical or manual control, or occupation, evidenced by some outward act, sometimes called de facto possession or detention as distinct from a legal right to possession. This is a question of fact rather than of law. 'Possession' may mean legal possession: that possession which is recognised and protected as such by law. The elements normally characteristic of legal possession are an intention of possessing together with that amount of occupation or control of the entire subject matter of which it is practically capable and which is sufficient for practical purposes to exclude strangers from interfering.''
21. In order to establish 'possession',
prosecution must prove that the person who is alleged to be in possession of a contraband article has dominion or control over such article. [See : Ravi C. v. State of Kerala (2011(3) KHC 427)].
22. In Gunwantlal v. State of M.P (1972 KHC 464),
the Apex Court in the context of Section 25(1)(a) of the Indian Arms Act held that the real test for determining “whether a person is in possession of anything is whether he is in general control of it.”
23. 'Possession' of an article involves power to
control and intent to control. The inevitable factor to be proved by the prosecution to establish 'possession' is, dominion or control over the contraband article by accused. A person may have dominion or control over the contraband article, if he is in actual possession of the article. Even if a person is not in actual or physical custody of a contraband article, it is well settled that prosecution can establish 'possession' if it can successfully prove that accused has control or dominion over such property. Such possession is referred to as 'constructive possession'. [See : Gunwantlal v. State of M.P in 1972 KHC 464 = 1972(2) SCC 194 Halsburys laws of England (supra)]”. …..............
26. The accused faces a charge that attracts
stringent punishment. A balance, thus, must be struck while constructing the meaning of a word in the statute ('possession' in the present context) that takes in the basic ingredient of the offence alleged. The prosecution has to establish “possession of wash” by the accused to bring home the charge against him. Where the offence alleged seeks to deprive the accused of his liberty for a period extending to ten years, a “word” in the definition of the penal provision, that embraces within it the fundamental ingredient of the offence, is to be strictly constructed. Hence the prosecution has to establish the conscious possession of the contraband substance by the accused to attract the offence alleged.”
29. In the instant case, the prosecution failed to establish that the accused had actual control over the contraband substance allegedly recovered from the building bearing No.XVI/130. Resultantly, the prosecution failed to establish conscious possession of the contraband substance by the accused.
30. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be
sustained. The appellant/accused is, therefore, not guilty of the offences punishable under Section 55(a) of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE rpk