Sasidharan, S/O Appukuttan vs State Of Kerala, Represented By ...
2022 Latest Caselaw 2439 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
         THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
                       CRL.A NO. 599 OF 2006
 AGAINST THE ORDER/JUDGMENT IN SC NO. 282/2004 OF ADDITIONAL
              SESSIONS COURT (ADHOC)-II, THODUPUZHA
CP 5/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA


APPELLANT/ACCUSED:

            SASIDHARAN, S/O APPUKUTTAN,
            PANACHUVATTIL HOUSE, AYYAPPAKOVIL VILLAGE,,
            VELLILAMKANDOM KARA.
            BY ADV JOICE GEORGE


RESPONDENTS/COMPLAINANT:

            STATE OF KERALA, REPRESENTED BY THE
            PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
            ERNAKULAM.



            BY ADV. NOUSHAD K A- SR. PP



     THIS   CRIMINAL APPEAL     HAVE      BEEN   FINALLY HEARD   ON
04.02.2022, THE COURT ON 04.03.2022 DELIVERED THE FOLLOWING:
 Crl.A No. 599 of 2006
                                                  2

                                         JUDGMENT

Appellant is the sole accused in S.C.No.282/2004 on the files of

the Court of the Additional Sessions Judge (Adhoc)-II, Thodupuzha.

The aforesaid case arises from Crime No.370/2001 of Kattappana

police station, which was registered against the appellant for the

offence punishable under Section 55(a) and 8(2) of the Abkari Act.

2. The prosecution case is as follows; On 11.07.2001 at

about 2.50 p.m., the Sub Inspector of Police, Kattappana upon

receiving information that illicit sale of arrack is being conducted in a

shop, he along with the police party conducted a search in the said

premises. During the course of search, accused was not there but 20

litres of illicit arrack was seized there from. Later the accused was

arrested on 06.09.2001. Articles seized were produced before the

court and upon completing the investigation, final report was

submitted before the Judicial First Class Magistrate Court,

Kattappana where the case was taken on file as C.P.No.5/2002.

Upon completing the legal formalities, the matter was committed to

Court of Sessions, Thodupuzha and later the same was made over to

Assistant Sessions Court, Kattappana for trial. Thereafter, the same Crl.A No. 599 of 2006

was made over to Additional Sessions Court Adhoc-II, Thodupuzha

where the case was tried as S.C.No.282/2004.

3. In support of the prosecution, they have examined Pws 1

to 5, marked Exts.P1 to P7 and Mos 1 to 3 were identified. After

closure of the prosecution evidence, the appellant was questioned

under Section 313 of the Cr.P.C. and the incriminating materials

brought out during the course of trial were put to him. Appellant

denied all the said materials and pleaded innocence. The defense

examined DW1 in support of their case. After considering the entire

materials placed on record, the learned Sessions Judge found that

the accused is guilty and he is sentenced to undergo rigorous

imprisonment for 2 years and fine of Rs.1,00,000/-. The default

sentence imposed upon him for failure to pay fine is rigorous

imprisonment for 3 months. This appeal is filed challenging the

aforesaid order of conviction and sentence.

4. Heard Sri. Joice George the learned counsel appearing for

the appellant and Sri.Noushad. K.A the learned Public Prosecutor

appearing for the State.

5. The learned counsel for the appellant submits that the

appellant is innocent of all the allegations and the prosecution Crl.A No. 599 of 2006

miserably failed in establishing the guilt of the accused. He mainly

contends that the materials available on record are not sufficient to

establish that the seizure effected by the police was from the shop

room owned by or in possession of the appellant. He points out that

the only evidence in this regard is Ext.P6 and the deposition of PW5,

which would not prove the possession of the appellant over the said

building in question. The learned counsel also place reliance upon

the decision of this Court in Santhosh v. State of Kerala [2021 (5)

KHC 214 : 2021 KHC Online 502].

6. On the other hand, the learned Public Prosecutor would

oppose the aforesaid contentions and submit that the prosecution

clearly established the guilt of the accused on the strength of

evidence adduced and no interference is warranted.

7. The crucial question that arises here is whether the

prosecution is successful in proving the possession of the contraband

article by the appellant herein. PW1 is the detecting officer, who was

the Sub Inspector of Police, Kattappana police station at the relevant

time. His evidence indicates that on 11.07.2001, he got an

information that the appellant herein is conducting sale of illicit arrack

in his shop room situated in Kanchiyar Grama Panchayath. Crl.A No. 599 of 2006

Immediately he along with the police party went to the said shop

room, which is at Vellilamkandam city and upon reached there, they

found the shop room locked. As they were informed that the

appellant went to his house for having lunch, the police party went to

his residence. However, on seeing police party, the appellant took to

his heels from his house and therefore they came back to the shop

room. Thereafter, they broke open the shop room and they found a

mug and a glass with the smell of arrack. They also found a pet

bottle having capacity of 750ml filled with a liquid. On examining the

same, they realized it as arrack. On further investigation, they found

out two cans having 10 litres of capacity each filled with arrack.

Immediately, articles were seized by preparing Ext.P1 mahazar in the

presence of witnesses and the same were produced before the court.

8. Pws 2 and 3 are the independent witnesses who attested

Ext.P1 mahazar. PW2 is running a tea shop at Vellilamkandam. Even

though he admitted the signature in Ext.P1 mahazar prepared by

PW1, he denied the seizure of any article as stated in Ext.P1. He has

stated that he did not see the police searching the shop of the

accused and seizing the arrack. He was declared hostile by the

prosecution. PW3 is an autorickshaw driver at Vellilamkandaom. He Crl.A No. 599 of 2006

also admitted his signature in Ext.P1 mahazar but the fact of seizure

as mentioned in Ext.P1 is denied. Thus evidence of PWs 2 and 3 do

not render any assistance to the prosecution in establishing the guilt

of the accused.

9. PW4 is the Additional Sub Inspector of police who

conducted the investigation. According to him, he investigated the

case and to establish the legal possession of the shop room by the

appellant, he procured Ext.P6 certificate from the Kanchiyar Grama

Panchayath which would indicate that the shop room bearing door

No.XI/566 is belonging to the appellant herein. PW5 is the Secretary

of the Kanchiyar Grama Panchayat who issued Ext.P6 certificate. He

has stated that Ext.P6 was issued certifying that the building bearing

No.XI/566 is in the name of Sri.Sasi Panachuvattil. It is also stated by

PW5 that, the aforesaid door number was assigned in the said name

while preparing voters list. He has also stated that no license was

issued in favour any person for conducting any business in the said

shop room. PW5 has also stated that the Panchayat also maintain an

assessment register for recording the details of door numbers.

10. DW1 was the Secretary of the Kanchiyar Grama

Panchayath at the time when the trial was conducted. He has stated Crl.A No. 599 of 2006

that the building No.XI/566 is not included in the assessment register.

He has also stated that in respect of the buildings which are situated

in 'Poramboke' land, along with the building number the word "UA"

will also be mentioned. However, in this case only No.566 is

mentioned.

11. Specific case put forward by the learned counsel for the

appellant is regarding the lack of materials in support of the

prosecution case as to the ownership and possession of the appellant

over the building in question. Only evidence available on record is

Ext.P6 which is marked through PW5. The reading of Ext.P6 would

show that the building in question stands in the name of one Sashi

Panachuvattil house. However, further details such as the name of

the father of the said person or the address which are the crucial

identifying features of a person are lacking in the said certificate. It is

also a relevant aspect that the name of the appellant is Sasidharan

S/o Appukuttan, where as the name mentioned in Ext.P6 is Sashi

Panachuvattil. There is some clear difference or in -completeness in

the description of the person in whose the name the aforesaid buil-

ding number is seen allotted. Apart from the above, it is also evident Crl.A No. 599 of 2006

from the depositions of PW5 as well as DW1 that the building number

does not find a place in assessment register and the said name was

assigned in the name of Sashi for the purpose of preparing voters list.

It is also discernible that, the voters list is normally prepared in the

address where the person is residing. In this case, it is discernible

from Ext.P1 mahazar that the building in question is a shop room and

no person is residing there. No voters list was also produced by the

prosecution to substantiate that consequent to the assignment of the

building number as claimed by PW5, a voters list including the person

named in Ext.P6 is included in the voters list.

12. The appellant is accused of having in possession of illicit

arrack and therefore the crucial act which attracts offence is his

possession. The prosecution has an obligation to establish the

conscious possession on the part of the accused for proving the guilt

of the accused. On scanning through the materials available on

record, the only evidence adduced by the prosecution is Ext.P6 which

is marked through PW5. Even going by Ext.P6, it can be seen that

the aforesaid number was assigned for a residential building for the

purpose of preparing Census and voters list in Kanchiyar Grama

Panchayath. The name mentioned in the said certificate is Sashi Crl.A No. 599 of 2006

Panachuvattil house which is incomplete as well. The name of the

appellant/accused is slightly different than mentioned in Ext.P6. In

addition to the above, even though it is stated by PW5 as well as

DW1 that, the details of the building number and the person in whose

ownership the said building is in existence, would be there in the

assessment register, no assessment register is seen produced. The

ownership over the property wherein the aforesaid shop room is

situated is also not proved and there is not even a single piece of

evidence indicating the same. Lack of any materials in respect of the

same coupled with the discrepancies and the differences in the

description of the owner of the building in question as contained in

Ext.P6 would only make the contentions of the appellant stronger

and thereby indicating a serious lacuna in the prosecution case. In

Santhosh's case (Supra) this court observed as follows:

" The accused faces a charge that attracts stringent punishment. A balance, thus, must be struck while constructing the meaning of a word in the statue ('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 Crl.A No. 599 of 2006

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."

13. As mentioned above, since the basis of allegation against

the appellant is the possession of the contraband articles, the

prosecution has a duty to establish the same by reliable and un-

impeachable evidence. In this case, as mentioned above, Ext.P6

coupled with the evidence of PW5, does not serve the purpose of

proving the said aspect. No other evidence are available indicating

that the appellant was in possession or ownership of the shop room

from where the contraband article were seized. It also evident that

the presence of the appellant was not there when the articles were

seized. No evidence was adduced by the prosecution to establish

that the appellant was conducting any activity in the premises from

which the contraband articles were seized. In such circumstances, the

only conclusion possible is that the prosecution failed in establishing

the guilt of the accused. In the said circumstances, I am of the view Crl.A No. 599 of 2006

that the finding of the learned Sessions Court holding appellant guilty

is liable to be interfered with.

In the result, this criminal appeal stands allowed and the

appellant is found not guilty. Accordingly, the judgment passed by the

Additional Sessions Judge Adhoc-II, Thodupuzha on 27.01.2006 in

S.C.No.288/2004 is set aside and the appellant is acquitted from all

the charges leveled against him.

Sd/-

                                             ZIYAD RAHMAN A.A,

     rps/                                        JUDGE