Kerala High Court
Symon vs State Of Kerala on 8 October, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937
CRL.A.NO. 2089 OF 2004 (B)
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AGAINST THE JUDGMENT IN SC NO.50/1998 OF ADDITIONAL SESSIONS COURT
(ADHOC)-II, KOLLAM DATED 08.10.2004
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APPELLANT(S)/ACCUSED::
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SYMON, S/O. KOZHY,
VALUTHUNDIL THEKKETHIL,
MANAMPUZHA MURI, KUNNATHOOR VILLAGE.
BY ADVS.SRI.P.S.SREEDHARAN PILLAI
SRI.P.GOPINATH MENON
SRI.C.S.SUNIL
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
NS
P.D. RAJAN, J.
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Crl. Appeal No.2089 of 2004
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Dated this the 23rd day of February, 2016
J U D G M E N T
This appeal is preferred by the accused against the conviction and sentence in S.C. No.50 of 1998 of the Additional Sessions Judge (Adhoc-II) Kollam under Sec.55
(a) and (g) of the Abkari Act. The charge against the accused is that, on 24.10.1997 at 9.05 a.m., he was found in possession of 50 litres of wash and utensils for manufacturing arrack and about 750 m.l. of arrack in a bottle kept on the north eastern corner of the Valuthundil house, No.V/606 of Kunnathoor Panchayat, Manampuzha Muri , Kunnathoor village. The accused was arrested and the contraband article were seized. Reaching at the police station, he registered a crime. After completing investigation, the Sub Inspector of Police, Sasthamcotta laid charge before the Judicial First Class Magistrate Court, Sasthamcotta. From there, the case was committed to the Sessions Court, Kollam. Subsequently, it was made over to Additional Sessions Crl. Appeal No.2089 of 2004 2 Judge (Adhoc-II).
2. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P5. MO1 to MO4 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Learned Additional Sessions Judge convicted the appellant and sentenced him to imprisonment for four years under Sec.55(a) of the Abkari Act and fine of Rs.1,00,000/- (Rupees one lakh only) in default of payment of fine, simple imprisonment for one year. No separate sentence was imposed under Sec.55(g) of the Abkari Act. Being aggrieved by that, the accused preferred this appeal.
3. The first contention advanced by the learned counsel appearing for the appellant is that no evidence has been produced in the trial court to prove the possession of the house. Moreover, there is a delay of seven days in producing the articles before the court. It is also contended that a forwarding note was not marked Crl. Appeal No.2089 of 2004 3 in this case. Learned Public Prosecutor has no serious objection with regard to the above arguments.
4. 'Possession' of the house for the purpose of Abkari Act means physical possession of the house with animus custody or domain over the prohibited articles such as wash, utensils, implements, apparatus and arrack in that house. Therefore, possession has to prove that house No.V/606 of Kunnathoor Panchayath belongs to the appellant and he has physical possession over the prohibited substance and concealed those articles in that house for manufacturing the prohibited substance with animus custody and control. Apex Court while discussing the provision of Narcotic Drugs and Psychotropic Substance Act in Mohanlal V. State of Rajasthan [2015 (5) SCALE 330] held that;
" The term "possession" for the purpose of Sec.18 of the NDPS Act could mean physical possession with animus custody, or domain 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 Crl. Appeal No.2089 of 2004 4 show and establish possession. Further, personal knowledge as to the existence of the "Chattel" i.e. the illegal substance at 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 or 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. "
5. Now the question is whether the prosecution has adduced any evidence to prove the possession and ownership of the house? The evidence of PW5 shows that, on 24.10.1997, while he was conducting patrol duty, he got information that the appellant was conducting sale of arrack in his house. He prepared Ext.P2 search memorandum and arrived at house No.V/606 of the Kunnathoor Panchayath and conducted a search. During search he recovered MO1, MO2, MO3 and MO4 from the house. He took 375 m.l. from MO1 and 180 m.l. from MO4 Crl. Appeal No.2089 of 2004 5 as sample and both samples were sealed at the place of occurrence itself. The remaining articles also sealed at the place of occurrence, for that, he prepared Ext.P1 mahazar. The witness present there attested the mahazar. Reaching at the police station, he registered a Crime. Ext.P3 is the First Information Report. Ext.P4 is the property list. The samples were sent over to chemical examiner's lab through court. Ext.P5 is the chemical examination report. PW1 and PW2 admitted their signatures in Ext.P1 but, they did not support the seizure of MO1 to MO4 from the house of the accused. Analysing the evidence in this case it is found that requisite degree of control of the arrack in the house and physical control of the house were not proved by the prosecution.
6. Even though, PW5 deposed so, no evidence has been adduced by him to show that he prepared a forwarding note and furnished the possession certificate from the Panchayath. PW3 and PW4 deposed that, PW5 sealed the samples at the place of occurrence and affixed the slip in the samples. PW4 also stated that, after taking Crl. Appeal No.2089 of 2004 6 sample, the entire wash was destroyed at the place of occurrence itself. Analysing the evidence of PW3 to PW5, it is clear that no documents were produced in the trial court to prove the possession and ownership of the house.
7. A three bench decision of the Apex Court in Ghuran Yadav v. State of Bihar [AIR 1971 SC 1641] held that the conviction of a person under Sec.47 of the Bihar and Orissa Excise Act is illegal when there is no legal evidence to show that it was the house of the accused which was searched.
In the result, the conviction and sentence passed by the trial court under Sec.55(a) of the Abkari Act are set aside. The accused is acquitted and set at liberty.
Sd/-
P.D. RAJAN,
JUDGE
/ True Copy /
NS/24/02/2016 P.A. To Judge