Kerala High Court
Sarojam vs State Of Kerala on 14 July, 2025
2025:KER:51541
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
CRL.A NO. 951 OF 2014
AGAINST THE JUDGMENT DATED 30.08.2014 IN SC NO.258 OF
2009 OF ADDITIONAL DISTRICT & SESSIONS COURT-V,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
SAROJAM
AGED 42 YEARS
D/O.PARUKUTTY, VADAKKE THYTHOTTAM VEEDU,
THOZHUKKAL DESOM, PERUMPAZHUTHOOR VILLAGE,
NEYYATTINKARA TALUK.
BY ADV SRI.G.SUDHEER
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY ADV SMT.MAYA M.N-PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
11.07.2025, THE COURT ON 14.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The sole accused in S.C.No.258/2009, on the file of
Additional District and Sessions Court-V, Thiruvananthapuram has
preferred this appeal challenging the judgment of conviction and
order of sentence passed against her for the offence punishable
under Section 8(2) r/w 8(1) of the Abkari Act.
2. The prosecution allegation in brief is that, on
03.10.2008, at 05.15 p.m., the accused was found in possession
of 2 litres of arrack in a can having 2 litre capacity in her house
named 'Vadakke Thythottam' house at Perumpazhuthoor village in
contravention of the provisions of the Abkari Act, and thereby
committed an offence punishable under Section 8(2) r/w 8(1) of
the Abkari Act.
3. Upon conclusion of the investigation, the final report
was laid before the Judicial First Class Magistrate Court-I,
Neyyattinkara. Being satisfied that the case is one exclusively
triable by a Court of Session, the learned Magistrate, after
complying with all legal formalities, committed the case to the
Court of Session, Thiruvananthapuram, under Section 209 of
Cr.PC. The learned Sessions Judge, having taken cognizance of
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the offence, made over the case to the Additional District and
Sessions Court-V, Thiruvananthapuram for trial and disposal. On
appearance of the accused before the trial court, the learned
Additional Sessions Judge, after hearing both sides under Section
227 of Cr.P.C. and upon perusal of the records, framed a written
charge against the accused for an offence punishable under
Section 8(2) r/w 8(1) of the Abkari Act. When the charge was
read over and explained to the accused, she pleaded not guilty
and claimed to be tried.
4. The prosecution, in its bid to prove the charge levelled
against the accused, has altogether examined six witnesses as
PW1 to PW6 and marked Exts.P1 to P12. MO1 was exhibited and
identified. After the completion of prosecution evidence, the
accused was questioned under Section 313 of Cr.P.C., during
which she denied all the incriminating materials brought out
against him in evidence. On finding that the accused could not be
acquitted under Section 232 of Cr.P.C., she was called upon to
enter on her defence and adduce any evidence she may have in
support thereof. But no evidence, whatsoever, was adduced from
the side of the accused.
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5. After trial, the accused was found guilty of the offence
punishable under section 8(2) r/w 8(1) of the Abkari Act, and she
was convicted and sentenced to undergo simple imprisonment for
a period of three months and to pay a fine of Rs.1 Lakh. In
default of payment of fine, the accused was ordered to undergo
simple imprisonment for a further period of 45 days. Assailing the
said judgment of conviction and the order of sentence passed, the
present appeal has been preferred.
6. I heard learned counsel for the appellant and the
learned Public Prosecutor.
7. The learned counsel for the appellant submitted that
the accused is innocent of the allegations levelled against her and
that she was falsely implicated in this case. According to the
counsel, the accused, who is a widow, had no connection
whatsoever with the contraband allegedly seized in this case, and
she was implicated in this case based on surmises and
conjectures. According to the counsel in the case at hand, there is
absolutely no material to show that the accused was in conscious
and exclusive possession of the contraband allegedly recovered in
this case, and hence she is entitled to be acquitted.
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8. Per contra, the learned Public Prosecutor would submit
that the conviction was recorded by the trial court after proper
appreciation of facts and evidence brought out in this case.
According to the learned Public Prosecutor it was from the house
of the accused that the contraband was recovered and hence she
could not be heard to say that she was not in possession of the
seized contraband. Moreover, the learned Public Prosecutor
submitted that all the procedural formalities necessary to rule out
allegations of manipulation and tampering were scrupulously
complied with in this case. The learned Public Prosecutor drew
attention to the fact that the specimen impression of the seal is
provided in all the records prepared in this case, including the
Mahazar, property list, and forwarding note. According to the
learned Public Prosecutor, there is ample link evidence to show
that the sample allegedly drawn from the contraband seized from
the possession of the accused is the sample ultimately examined
by the chemical examiner. Hence, it is submitted that no
interference is warranted in the impugned judgment.
9. As I already stated, the main contention taken by the
learned counsel for the appellant is that the prosecution miserably
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failed to prove that the contraband was recovered from the
conscious possession of the accused. Admittedly, the case was
detected by the Excise Inspector, Neyyattinkara. According to the
prosecution, on 03.10.2008, the detecting officer got a secret
information, and it was on the basis of the said information that
this case was detected. The detecting officer, when examined as
PW1, had narrated the entire matter which led to the detection of
the case, and regarding the search conducted and seizure
effected by him. The evidence of PW1 reveals that, following the
tip-off received when he reached the premises of the house of the
accused, the front door of the house was found open. Then he,
along with the police party, entered the house, and the accused
was then found sitting on the floor of a room. Thereafter, he
interrogated the accused and conducted a search, and during the
search, a bottle was found kept inside the said room and on
inspection, the same contained 2 litres of arrack. A perusal of the
evidence reveals that even the detecting officer does not have a
case that he saw the accused handling the contraband. In a case
of this nature, it is the bounden duty of the prosecution to
establish that it was from the exclusive and conscious possession
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of the accused that the contraband was seized. By a series of
judicial pronouncements, it is now well settled that in a case of
this nature, there must be convincing evidence for proof of
conscious and exclusive possession. This Court in Sajeevan
V.State of Kerala [2020(6)KLT53:2020(4)KLJ1014], made
an elaborate discussion regarding the aspect of possession. In
para 9 of the said judgment, this court observed as follows;
9. Possession of arrack is the gravamen of the
charge against the accused. 'Possession' in law is of
different types. There can be actual physical
possession as well as constructive possession.
Possession of arrack under Section 8 of the Act is
penal. When possession is made an offence, under a
statute, actual physical possession would invariably
satisfy the requirements. However, for constructive
possession to become penal in nature, there must be
something more than mere deemed possession. There
must be an element of consciousness or knowledge of
the possession in the person charged with the offence
coupled with a power or control over the article. The
consciousness or knowledge and power or control are
required to be specifically proved. In the absence of
specific facts proved, court cannot assume
constructive possession on an accused.
Likewise, in para 12 of the said judgment, it was observed
that,
12. Sitting near a can of arrack by itself cannot
create any possession, much less any conscious or
constructive possession. The accused could have been
sitting near the can of arrack for manifold reasons. In
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the absence of anything in evidence to connect the
accused with the black can of arrack or to prove
dominion or control of the accused over the black
can, it cannot be held that the prosecution proved
beyond reasonable doubt that the accused was in
possession of arrack.
Keeping in mind the above while reverting to the facts in
the present case, it can be seen that there is not even an
allegation that the accused was found handling the contraband.
Therefore, I find it difficult to comprehend how conscious and
exclusive possession can be attributed to the accused in the
absence of any such evidence. It is also relevant to note that the
accused in this case is a lady. Interestingly, the ownership
certificate produced and marked as Ext.P10 reveals that the
house from which the contraband was allegedly recovered
belongs to one Sukumaran, who is the husband of the accused.
Similarly, Ext.P11, the dead certificate, further reveals that the
Sukumaran had passed away prior to the detection of this case.
However, no investigation seems to have been conducted to find
out whether there were any other inmates in the said house
apart from the accused. The failure to investigate that aspect
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is certainly fatal, especially when there is no case for the
prosecution that the accused was handling the contraband at the
time when the detecting officer entered the house. Therefore, I
have no hesitation in holding that the prosecution miserably
failed to prove that the contraband was recovered from the
conscious and exclusive possession of the accused. Hence, the
accused is entitled to be acquitted on the said sole ground.
In the result, the appeal is allowed and the judgment of
conviction and the order of sentence passed against the
appellant/accused for the offence punishable under Section 8(2)
r/w 8(1) of the Abkari Act is set aside and she is acquitted. Fine
amount, if any, has been deposited by the appellant/accused, the
same shall be refunded to her in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
rkr
