IMPORTANT POINTS
Touching or lifting a contraband article from an open pond by an accused without any other overt acts will not amount to possession. To prove possession, dominion or control over the property is necessary. Hence it cannot be concluded that the accused was in possession of the contraband articles. Admittedly, the pond is situated in an open property. If a can is seen in a pond, a person may even take out the same because of curiosity. He may be a thief or an ordinary person trying to take out a strange article seen in a pond. In this case, the admitted case of the prosecution is that the accused lifted the can from the pond. I don't think that the same amounts to either physical/actual possession or even constructive possession of illicit liquor.

JUDGMENT :

The above appeal is filed by the accused in Sessions Case No.306 of 2003 on the file of the Additional Sessions Judge, Fast Track Court-I (Adhoc), Manjeri. The appellant was charge sheeted by the Excise Range Office, Tirur, alleging offence punishable under Section 55(a) of the Abkari Act.

2. The prosecution case is that on 10.10.2001, at 5.30 P.M., the accused was found lifting a cannas containing 20 litres of illicit arrack out of a pond in the property of one Parambil Moideenkutty. It is also the prosecution case that another cannas containing 7 litres were found out from the pond as concealed by the accused and therefore, the accused committed the offence.

3. To substantiate the case, the prosecution examined PW1 to PW7. Exts.P1 to P10 were marked on the side of the prosecution. MO1 and MO2 are the material objects.

4. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 55(a) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was directed to undergo simple imprisonment for three years. Aggrieved by the conviction and sentence, this Crl.Appeal is filed.

5. Heard the learned counsel for the appellant and the learned Public Prosecutor.

6. The learned counsel for the appellant submitted that even if the entire prosecution case is accepted, no offence under Section 55(a) of the Abkari Act is attracted. According to the counsel, simply because the accused was found lifting a can from a pond owned by a third party, it cannot be presumed that the accused was in possession of the same.

7. The learned Public Prosecutor submitted that there is oral and documentary evidence to prove the offence under Section 55(a) of the Abkari Act. According to the learned Public Prosecutor, the evidence of PW1 is corroborated by PW2. The documentary evidence also supports the case of PW1 and PW2. Therefore, the Public Prosecutor submitted that the accused committed the offence under Section 55(a) of the Abkari Act.

8. After hearing both sides, the point for consideration is whether the accused committed the offence under Section 55(a) of the Abkari Act.

9. Altogether seven witnesses were examined in this case. PW1 is the Preventive Officer, and PW2 is the Excise Guard. They were examined to prove the search and seizure. PW3 is the owner of the property where the pond is situated. He turned hostile to the prosecution. PW4 is another independent witness examined by the prosecution. But he also turned hostile to the prosecution. PW5 is the Excise Inspector who registered the case. PW6 is the detecting officer. PW7 is the Excise Inspector who investigated this case.

10. It is a settled position now that to attract an offence under Section 55(a) of the Abkari Act; the prosecution has to prove that the accused was found in possession of liquor in the course of import, export, transport or transit of the goods. This point is considered by this Court in Josekutty v. State of Kerala (2013 (1) KLT 434).

11. But an offence under Section 58 of the Abkari Act is maintainable if the prosecution can prove that the accused was found in possession of illicit liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the duty, tax or rental payable under the Abkari Act not to have been paid.

12. In this case, the evidence adduced by the prosecution is like this: The Excise Party was on patrol duty on 10.10.2001. The uniform versions of PW1, PW2 and PW6 are that while they were passing through a pathway near to a Jama Ath Mosque at Keezhur, they noticed the presence of the accused standing near to a pond. On watching the accused at a distance of 20 meters, the Excise Party found the accused lifting a cannas out of the pond and placing it on the step of the pond. The Excise Party felt suspicion, and they had restrained the accused in the presence of local peo