State Of Kerala vs Vijayan
2024 Latest Caselaw 30905 Ker

Kerala High Court

State Of Kerala vs Vijayan on 23 October, 2024

CRL.A NO. 1240 OF 2007              1                 2024:KER:79265


                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
    WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946

                         CRL.A NO. 1240 OF 2007

         AGAINST THE ORDER/JUDGMENT DATED 25.09.2003 IN SC NO.85 OF

2002 OF ADDITIONAL SESSIONS JUDGE (ADHOC-I), THODUPUZHA

APPELLANT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE EXCISE INSPECTOR,, ADIMALY RANGE.


             BY ADV PUBLIC PROSECUTOR
             PP-SRI.M.C.ASHI

RESPONDENTS/ACCUSED:

     1       VIJAYAN
             S/O.GOVINDAN
             KOCHUCHERUPPULASSERIL VEEDU, LOWERPERIYAR KARA,,
             KANJIKUZHY VILLAGE, THODUPUZHA TALUK.

     2       SHAIJU S/O. GOPALAN
             MOOLAYIL VEEDU, KONNATHADI VILLAGE,,
             UDUMBANCHOLA TALUK.


             BY ADVS.
             JOY C. PAUL
             RAINGE KODUVATH




      THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.10.2024,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 1240 OF 2007                 2                    2024:KER:79265


                              JUDGMENT

This is an appeal filed by the State challenging acquittal of

the accused in SC No.85/2002 on the file of Additional Sessions

Judge (Ad-Hoc-I), Thodupuzha for the offence charged under

Section 55(a) of Abkari Act.

2. The prosecution allegation is that, on 20/8/1998 at 11.15

p.m while PW1 Circle Inspector Excise Special Squad was

conducting patrol duty along with Excise party, they intercepted

and inspected KL/5/F-6016 jeep which came through

Kallarkutty-Adimaly road. The 2nd accused was the driver of the

jeep, and the 1st accused was sitting near to the driver's seat.

On inspection two cardboard boxes were found beneath the seat

which contained 24 bottles of brandy each containing 375ml,

and another bottle of whisky in a 200ml bottle. Since the

accused persons were found in possession of the contraband

and found transporting the same in contravention of the

provisions of the Abkari Act, they were arrested, and the

contraband was seized after taking sample. Ext.P1 seizure CRL.A NO. 1240 OF 2007 3 2024:KER:79265

mahazar was prepared and the accused and the records along

with the contraband were produced before Adimaly Excise

Range Office where OR No.7/1998 of Adimaly Excise Range

was registered.

3. On committal and on appearance of the accused before

the trial court, charge was framed under Section 55(a) of the

Abkari Act, to which both of them pleaded not guilty and claimed

to be tried.

4. PWs 1 to 4 were examined, Exts P1 to 4 were marked

and MO1 and MO2 series were identified, from the side of

prosecution.

5. On closure of prosecution evidence, the accused were

questioned under Section 313 of Cr.P.C. They denied all the

incriminating circumstances brought on record and pleaded

innocence.

6. On analyzing the facts and evidence and on hearing the

rival contentions from either side, the trial court found that the

prosecution could not prove the guilt of the accused beyond CRL.A NO. 1240 OF 2007 4 2024:KER:79265

reasonable doubt, and so, they were acquitted under Section

235 of Cr.P.C. Against their acquittal the State has come forward

with this appeal.

7. Heard learned Public Prosecutor and learned counsel for

the respondents.

8. Pending appeal, the 1st respondent/A1 passed away. The

Excise Inspector Adimaly filed a report stating that the 1st

respondent/A1 passed away six years ago. Since the appeal is

filed against acquittal, it will abate as against the 1st respondent

as he is no more. As far as the allegations against the 2nd

respondent is concerned, he was the driver of KL/5/F-6016 jeep.

PW2 was examined to say that he had transferred that jeep to

the 2nd respondent/A2 and so the jeep was owned by the 2nd

respondent/A2 at the time of detection. But no documents were

produced to prove such transfer or to show that, as on the date

of detection, the 2nd respondent was the owner of the jeep.

9. Now regarding possession of the contraband by the 2nd

respondent, the trial court relied on the testimony of PW1 to find CRL.A NO. 1240 OF 2007 5 2024:KER:79265

that the two cardboard boxes were found beneath the seat,

behind the legs of the 1st accused, who was sitting near the

driver seat. According to the 2nd respondent, he had no

knowledge about the contraband packets in his jeep. When a

passenger entered his jeep, he was not supposed to check the

baggage. Because of the mere fact that, the card boxes

containing the contraband were seized from the jeep driven by

the 2nd respondent, it could not be said that, he was in conscious

possession of the contraband, especially when those boxes

were found beneath the legs of 1st respondent who was sitting

near to the driver seat.

10. In Santhosh v. State of Kerala [2021 (5) KHC 214] this

Court held that regarding possession of the contraband, no

doubt, it should be conscious, and mere physical possession

may not be sufficient always. 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. In the CRL.A NO. 1240 OF 2007 6 2024:KER:79265

case on hand, prosecution failed to prove that the 2nd respondent

was in conscious possession of the contraband seized from the

jeep, as it was found beneath the legs of the 1st respondent who

was a passenger in that jeep.

11. Coming to other legal formalities to be complied with by

the prosecution, in order to bring home the offence alleged,

learned counsel for the 2nd respondent would point out that,

Ext.P1 seizure mahazar is not having the specimen impression

of the seal, with which the sample drawn at the place of

occurrence was sealed. The forwarding note for sending the

sample for chemical analysis is not produced before the court.

So, the presence of specimen impression of the seal in the

forwarding note also could not be verified. Though the case of

PW1 is that, the accused persons were arrested at the time of

seizure itself, no arrest memo, or inspection memo of the

accused persons, were produced before court. So, the seizure

as well as the arrest of the accused persons could not be proved

by the prosecution, beyond any shadow of doubt.

CRL.A NO. 1240 OF 2007 7 2024:KER:79265

12. It is true that Ext P4 chemical report says detection of

ethyl alcohol in the sample analysed. In the absence of

forwarding note and also due to the absence of specimen

impression of the seal in the mahazar, we cannot attribute any

sanity to that document. In the absence of specimen seal in the

seizure mahazar, the genuineness of the seal found in the

sample bottle lose its authenticity. The specimen of the seal shall

be provided in the seizure mahazar as well as in the forwarding

note, so as to enable the court to satisfy the genuineness of the

sample produced before the court. 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. (Reliance placed on Moothedath Sivadasan v.

State of Kerala [2021 (1) KLT 744] and Bhaskaran v. State of

Kerala and Another [2020 KHC 5296]). In the case on hand

though PW1 stated that, he affixed his personal seal in the

mahazar, that seal will not find a place in the mahazar.

CRL.A NO. 1240 OF 2007 8 2024:KER:79265

13. For all these reasons and also due to the reason that,

prosecution failed to prove conscious possession of the

contraband by the 2nd respondent, this court finds no reason to

interfere with the acquittal of the 2nd respondent by the trial

court.

The appeal fails and hence dismissed.

Sd/-

SOPHY THOMAS, JUDGE ska