Allowed

Sivan v. the State of Kerala

Kerala HC23 Feb 2016CRL.A/1952/2005

Case brief

AI extract

What is this about?

Convicted under the Abkari Act for possessing wash used for arrack manufacture. The High Court of Kerala acquitted the appellant, holding the prosecution failed to prove possession beyond reasonable doubt as the appellant resided elsewhere and no independent evidence linked him to the property where contraband was found.

What did the court decide?

Conviction and sentence set aside; appellant acquitted and set at liberty.

Sivan Vs the State of Kerala — Cheque Dishonour | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937

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CRL.A.NO. 1952 OF 2005 ( )

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AGAINST THE JUDGMENT IN SC NO.115/2004 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.1 (ADHOC), MANJERI DATED 17-10-2005

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APPELLANT(S)/ACCUSED:

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SIVAN, S/O.PUNNATHAN KANNANKUTTY, NEDIYIRIPPU HARIJAN COLONY, NEDIYIRIPPU, MALAPPURAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENT(S)/STATE:

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THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, MANJERI EXCISE RANGE- THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

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BY PUBLIC PROSECUTOR SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D. RAJAN, J.

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Crl. Appeal No.1952 of 2005

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Dated this the 23^rd day of February, 2016

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J U D G M E N T

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This appeal is preferred by the accused against

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the judgment of conviction and sentence in S.C. No.115 of 2004 of the learned Additional Sessions Judge (Fast Track-I) (Adhoc), Manjeri, under Sec.55(g) of the Abkari Act. The charge against the accused is that, on 28.10.2000 at 11.30 a.m., while the Excise Inspector, Malappuram was conducting patrol duty, he got information that the appellant was possessing arrack in the property of Edaparambil Arumughan. He arrived at the place of occurrence and seized 240 litres of wash used for manufacturing arrack. He took sample from the wash and destroyed the remaining wash at the place of occurrence itself. Reaching at the police station, he registered a crime. After completing investigation, the Excise Inspector, Malappuram, laid charge before the Judicial First Class Magistrate Court, Malappruam. From there, the case was committed to the Sessions Court, Manjeri. Subsequently, it was made over to Additional

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Crl. Appeal No.1952 of 2005 2

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Sessions Judge, Manjeri.

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During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P10. MO1 and MO2 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 under Sec.55(g) of the Abkari Act and sentenced to rigorous imprisonment for three years and fine of Rs.1,00,000/- (Rupees one lakh only) in default of payment of fine, simple imprisonment for one year. Being aggrieved by that, the accused preferred this appeal.

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Learned counsel appearing for the appellant contended that possession of the property by the appellant was not proved in the trial court. It is contended that four acres of property was owned by his father. His mother and brothers are residing in the property. He is residing in a Harijan Colony and no occasion to possess that property.

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Crl. Appeal No.1952 of 2005 3

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Learned Public Prosecutor also admitted that

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the appellant is residing in another property and he was arrested in this case only after two years.

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The Apex Court in Mohanlal V. State of

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Rajasthan [2015 (5) SCALE 330] held that;

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“ 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 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. ”

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The possession for the purpose of Abkari Act

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means physical possession with animus custody, or domain over the prohibited substance with animus or even exercise of dominion and control as a result of

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Crl. Appeal No.1952 of 2005 4

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concealment. The concept of possession appearing in the strict sense is basically connected to actual possession, control and custody. In the strict sense, the meaning attributed to the factum of possession in a case has to be proved by the prosecution beyond reasonable doubt. Considering the concept of possession, it would have a reference to the concept of conscious possession. If the prosecution alleges that the appellant was in possession of the disputed property, the fact has to be proved by the prosecution.

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For ascertaining that fact, I have gone through the oral evidence. The occurrence was stated by PW1. His evidence shows that he was conducting patrol duty on 28.10.2000 at 11.30 a.m., and while proceeding near the property of Edaparambil Arumugham, he got smell of wash. He conducted a search and detected 240 litres of wash in MO1 and MO2. He took sample from it and affixed label in the sample. For that, he prepared Ext.P1 Mahazar. Ext.P2 is the occurrence report. The seized article and sample were produced before the

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Crl. Appeal No.1952 of 2005 5

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court. Ext.P3 is the property list and Ext.P4 is the forwarding note. During cross examination, he admitted that the appellant is residing in another property which is 250 metres away from the place of occurrence. PW1 reported that the appellant was absconding at that time and that is why, he arrested the accused after two years.

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PW2, the preventive officer who supported the evidence of PW1, stated that the independent witness present there deposed that the property belongs to the appellant. He did not verify any revenue records for ascertaining the ownership and possession of the property. PW3, an independent witness, deposed that the appellant is residing in a colony. Father of the appellant has four acres of land. PW4 was declared hostile by the prosecution. PW5, the Village Officer, deposed that he issued Ext.P6 certificate. One Kannankutty and his wife are the owners of four acres of property. As per Ext.P6, one Sivan is possessing the property. Even though, he stated so in Ext.P6, PW5 certified that Kannankutty and his wife Moothachi are the owners of the property and

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Crl. Appeal No.1952 of 2005 6

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the appellant (Sivan) has no property in Nediyirippu village. The oral evidence is inconsistent with the documentary evidence in Ext.P6.

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After completing investigation, PW6 laid charge before the court. He obtained Ext.P6 certificate from PW5. The seized article was sent for chemical examination. Ext.P7 is the chemical examination report. Ext.P9 is the arrest memo and Ext.P10 is the arrest notice. During investigation, PW6 understood that the appellant was not holding any property in his own name.

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No independent evidence has been adduced in this case to prove the possession of the property or that the appellant kept those articles in that property. Therefore, a presumption raised with regard to possession is unsustainable. A mere knowledge deposed by PW5, Village Officer, is also not sufficient to prove the possession. The expression possession is connected with the actual physical control over the property or domain over the property and concealment of the illicit article in that property. The prosecution failed to prove that the

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Crl. Appeal No.1952 of 2005 7

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appellant was in possession of the property with cogent and convincing evidence. Therefore, he is entitled to get the benefit of doubt. A conviction on the basis of presumption of possession is not possible.

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In the result, the conviction and sentence

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passed by the trial court under Sec.55(g) of the Abkari Act is set aside. The accused is acquitted and set at liberty.

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Sd/-

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P.D. RAJAN, JUDGE

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/ True Copy /

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NS/24/02/2016

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P.A. To Judge

Sivan v. the State of Kerala

Case brief

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What did the court decide?

Sivan v. the State of Kerala

Case brief

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