When a person is not present during a search of their residence, the prosecution must provide cogent evidence to establish the accused's conscious and exclusive possession of the alleged contraband, failing which, significant inconsistencies in seizure documentation regarding the recovery location will result in an acquittal.

ORDER :

JOBIN SEBASTIAN, J.

This Criminal Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure, challenging the judgment of conviction and the order of sentence passed against the revision petitioner for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act by the Assistant Sessions Court-II, Kozhikode as per the judgment dated 10.11.2016 in S.C No.1330/2014, which was confirmed in appeal by the Additional Sessions Court-I, Kozhikode, as per judgment dated 28.04.2017 in Crl. Appeal No. 498/2016. The revision petitioner is the sole accused in the said case.

2. The prosecution case is that on 25.12.2013, the accused was found in possession of 15 litres of illicit arrack for the purpose of sale in contravention of the provisions contained under the Abkari Act and thereby committed the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act.

3. During trial, from the side of the prosecution, PW1 to PW9 were examined, marked Exts.P1 to P9 and MO1 and MO2 were exhibited and identified. After the closure of the prosecution evidence, the accused was questioned under Section 313 of the Cr.P.C, during which he denied all the incriminating circumstances brought out against him in evidence. As it was not a fit case to acquit the accused under Section 232 of Cr.P.C, he was directed to enter on his defence and to adduce any evidence that he may have in support thereof. However, from the side of the accused, no evidence whatsoever was adduced.

4. Finally, the learned Assistant Sessions Judge, after hearing both sides, found the accused guilty of the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act and convicted him. The accused was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- for the offence for which he was found guilty. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a period of three months.

5. The accused challenged the conviction by filing Criminal Appeal No. 498/2016. The learned Additional Sessions Judge, Kozhikode, who heard the appeal, confirmed the finding of conviction but modified the sentence by reducing the term of imprisonment from one year to six months. No interference was made with respect to the fine amount imposed by the trial court.

6. Heard Sri. Shalvin Chamathakal Robin, the learned counsel appearing for the revision petitioner, and Smt. Anima M, the learned Public Prosecutor, and also perused the records.

7. The learned counsel for the revision petitioner submitted that the accused is innocent of the allegations levelled against him and that both the trial court and the appellate court committed grave illegality and irregularity in the appreciation of the facts and evidence adduced in the case. According to the learned counsel, the accused has no connection whatsoever either with the contraband allegedly seized or with the house from which it was seized. It was further contended that the prosecution has miserably failed to establish that the contraband seized in the case was in the exclusive and conscious possession of the accused, and that the revision petitioner was arrayed as an accused merely on the basis of surmises and conjectures. On the aforesaid grounds, it was urged that the revision petitioner is entitled to be acquitted.

8. Per contra, the learned Public Prosecutor would submit that the prosecution has fully succeeded in proving the guilt of the accused. According to the learned Public Prosecutor, the contraband seized in this case was recovered from the house, which was in the exclusive and conscious possession of the accused, and therefore, he cannot be heard to say that he has no knowledge or connection with the con