Back
IN THE HIGH COURT OF KERALA
P.D. Rajan, J.
Abdul Gafoor – Appellant
Vs.
State of Kerala – Respondent
Crl. R.P. No. 3780 of 2006
Decided On : 15-12-2015
Obscene Materials - Possession of Shop - S.292(2)(a) of I.P.C., S. 7(1)(a)(i) & (ii) of Cinematographic Act 1952 - Mohan Lal v. State of Rajasthan, 2015 (5) SCALE 330
Fact of the Case:
The accused was charged with possession of obscene Compact Discs in his shop. The lower courts convicted and sentenced the accused, which was confirmed in the appeal. The accused filed a Revision Petition, claiming that the evidence regarding possession of the shop was not properly considered.
Finding of the Court:
The court found that the prosecution failed to prove the accused's possession of the shop satisfactorily, resulting in a miscarriage of justice. The court invoked revisional jurisdiction and acquitted the accused, granting the benefit of doubt.
Issues: The key issue was the possession of the shop by the accused and the prosecution's failure to prove it beyond reasonable doubt.
Ratio Decidendi: The court emphasized the importance of proving possession in cases involving the sale of obscene materials. It highlighted the elements of possession, the need for physical control and custody, and the requirement to prove the accused's knowledge and control over the shop. The court also stressed the fragility of digital evidence and the necessity of following proper procedures for its collection and examination.
Final Decision: The court set aside the conviction and sentence, acquitted the accused, and granted the benefit of doubt.
P.D. Rajan, J.
1. This Revision Petition is preferred by the accused against the judgment in Crl. Appeal No. 135/05 of the Additional Sessions Ad hoc II, Manjeri. He was charge-sheeted in C.C. 532/03 before the Judicial First Class Magistrate, Nilambur for offence punishable under S.292(2)(a) of I.P.C. and under S. 7(1)(a)(i) & (ii) of Cinematographic Act 1952. The charge against the accused is that on 25.08.02, at 7.00 p.m. the Sub Inspector of Police, Vazhikadavu searched the shop 'Shajahan Videos' door No. 1/101 of Vazhikadavu Grama Panchayat and seized 7 obscene Compact Discs from that shop. He registered a case against the accused and after completing investigation, he laid charge before Judicial First Class Magistrate Nilambur. During trial, prosecution examined PW 1 to PW 9 and marked Exts. P1 to P6 as documentary evidence and admitted MO1 in evidence. The learned Magistrate convicted the accused under S. 292(2)(a) of I.P.C. and sentenced to undergo simple imprisonment for one month and fine of Rs. 1000/- with a default sentence of one month and acquitted under S.7(1)(a)(i) & (ii) of Cinematographic Act, 1952. Against that, he preferred Crl. Appeal. 135/05 before Additional Sessions Court (Adhoc-II), Manjeri, where the conviction and sentence passed by the Trial Court were confirmed and dismissed the appeal. Being aggrieved by that, he preferred this Revision Petition.
2. Heard both sides and perused the records, which includes the oral and documentary evidence. It appears that both courts did not consider and appreciate the evidence with regard to possession of property. Both courts misread the evidence and had gone under the impression that the revision petitioner was in possession of the shop buildings, which was not established with cogent and convincing evidence. Many facts which ought to have been considered in favour of the revision petitioner were not properly considered and this is a good reason for invoking revisional jurisdiction.
3. The occurrence was stated by PW 1, then Sub Inspector, Vazhikkadavu Police Station. The evidence of PW 1 shows that on 25.08.02, he got information that revision petitioner was conducting sale of obscene Compact Discs in his shop. On the basis of that information, he prepared Ext. P1 search memorandum and arrived at the place of occurrence and conducted a search in the presence of independent witnesses. He detected MO1 series obscene articles and seized it after preparing Ext. P2 search list. The accused was arrested and reaching at the police station, he registered a crime, Ext. P3 is the F.I.R. The seized CDs. were marked as MO1 in the trial court. The revision petitioner in his defence contended that he is not conducting that shop as alleged by PW 1.
4. Another occurrence witness PW 3, Head Constable of the Vazhikkadavu, Police Station who accompanied PW 1 supported the evidence of PW 1. According to his evidence, PW 1 prepared search memorandum at 19.00 hours and conducted search in the presence of independent witnesses. The occurrence witnesses PW 2 and PW 4 did not support the evidence of PW 1, but they admitted their signature in Ext. P2. Analysing the evidence of PW 1, PW 2, PW 3 and PW 4, it is clear that the possession of the shop is very relevant while considering the allegation against the revision petitioner.
5. Possession of the shop means the continuing exercise of a claim to the exclusive use of it. It requires two aspects, the thing and a mental feeling. It is the conscious feeling of the custodian to exclude others from the control of the shop. To prove the possession of the shop, prosecution examined PW 5, the Secretary of Vazhikadavu Grama Panchayat. He deposed that he issued Ext. P4 certificate and as per the certificate, Secretary, Mufthal Islam Madrassa, Munda is the owner of the building. The owner of the building was examined as PW 6 in the trial court and he deposed that revision petitioner never conducted any shop in that building. This witness was de
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
