P.D. Rajan, J.

This revision petition is preferred by the accused against the judgment in Crl. Appeal 135/05 of the Additional Sessions Adhoc II, Manjeri. He was charge-sheeted in C.C.532/03 before the Judicial First Class Magistrate, Nilambur for offence punishable under Section 292(2)(a) of IPC and under Section 7(a)(i)(ii) of Cinematographic Act 1952. The charge against the accused is that on 25.08.02, at 7.00 pm., 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.

2. During trial, prosecution examined PW1 to PW9 and marked Exts.P1 to P6 as documentary evidence and admitted MO1 in evidence. The learned Magistrate convicted the accused under Section 292 (2)(a) of IPC and sentenced to undergo simple imprisonment for one month and fine of Rs.1000/- with a default sentence of one month and acquitted under Section 7(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.

3. 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.

4. The occurrence was stated by PW1, then Sub Inspector, Vazhikkadavu Police Station. The evidence of PW1 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 FIR. The seized C.Ds. 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 PW1.

5. Another occurrence witness PW3, Head Constable of the Vazhikkadavu, Police Station who accompanied PW1 supported the evidence of PW1. According to his evidence, PW1 prepared search memorandum at 19.00 hours and conducted search in the presence of independent witnesses. The occurrence witnesses PW2 and PW4 did not support the evidence of PW1, but they admitted their signature in Ext.P2. Analysing the evidence of PW1, PW2, PW3 and PW4, it is clear that the possession of the shop is very relevant while considering the allegation against the revision petitioner.

6. 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 PW5, 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 PW6 in the trial court and he deposed that revision petitioner never conducted any shop in that building. This witness was declared as hostile by the prose