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2025 Supreme(Online)(KER) 2468
HIGH COURT OF KERALA
SOPHY THOMAS, J
SOMAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 2735/2009
THAREEQ ANVER K
The prosecution must prove conscious possession of contraband for conviction under the Abkari Act; mere presence in a public place is insufficient.
Headnote:(A) Abkari Act - Sections 8(1) and 8(2) - Conviction and sentence challenged - Accused found in possession of contraband - Prosecution failed to prove conscious possession and genuineness of seizure - Delay in producing contraband before court raised doubts - Conviction set aside. (Paras 12, 13, 16)
(B) Evidence - Requirement of corroboration - Testimony of detecting officer not corroborated by independent witnesses - Presence of crime number in arrest memo raised doubts about arrest and seizure. (Paras 11, 16)
Facts of the case:
The accused was convicted for possessing 1.5 liters of arrack found in his restaurant, but claimed it was recovered from the surroundings. The trial court convicted him based on the prosecution's evidence.
Findings of Court:
The trial court's conviction was based on insufficient evidence regarding conscious possession and the genuineness of the seizure.
Issues: The main issues were whether the prosecution proved conscious possession of the contraband and the validity of the seizure process.
Ratio Decidendi: The court ruled that mere presence of contraband in a public restaurant does not imply conscious possession by the owner, and the prosecution must prove dominion over the contraband.
Result: Conviction and sentence set aside; accused acquitted.
JUDGMENT
This appeal is at the instance of the sole accused in SC No.135 of 2008 on the file of IIIrd Additional Sessions Judge (Adhoc-I), Thodupuzha, challenging his conviction and sentence under Sections 8 (1) and 8(2) of the Abkari Act , vide judgment dated 10/12/2009.
2. The prosecution case is that, on 3/2/2007 at about 6.40 pm, the accused was found in possession of 1.5 liters of arrack in his restaurant bearing door No.VI/598 of Konnathadi Panchayat, and he was keeping the same for the purpose of sale. PW7 Circle Inspector of Police, Adimaly and police party detected the offence.
3. On committal and on appearance of the accused before the trial court, charge was framed against him under Sections 8 (1) and 8(2) of the Abkari Act , to which he pleaded not guilty and claimed to be tried.
4. PWs 1 to 11 were examined, Exts.P1 to P17 were marked, and MOs 1 and 2 were identified, from the side of prosecution to prove its case.
5. On closure of prosecution evidence, accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record and stated that, a Can of arrack was recovered by police from the surroundings of his hotel near the road, and nothing was recovered from his restaurant.
6. DW1 was examined from defence side. Ext.X1 was marked as witness exhibit.
7. On analysing the facts and evidence, and on hearing the rival contentions from either side, the trial court found the accused guilty under Sections 8 (1) and 8(2) of the Abkari Act , and he was convicted and sentenced to undergo simple imprisonment for one year, and to pay fine of Rs.1 lakh, with a default sentence of simple imprisonment for three months. Aggrieved by the conviction and sentence, the accused has preferred this appeal.
8. Since there was no representation from the part of the appellant continuously, Adv.Thareeq Anver K was appointed as State Brief.
9. Heard learned State Brief for the appellant and learned Public Prosecutor for the respondent-State.
10. Learned State Brief would contend that, prosecution could not prove possession of the contraband by the accused, since the alleged seizure was from an open restaurant frequented by public. Moreover nothing was recovered from the restaurant of the appellant, and police recovered a Can from its surroundings near to the road. He was taken to police station to be questioned, but he was sent back. He was not arrested from his restaurant, as stated by PW7. There was delay in producing the contraband before court, so as to suspect the genuineness of the seizure. Moreover, there is no evidence to corroborate the testimony of PW7. Since, the trial court convicted and sentenced the accused without looking into these aspects, according to him the impugned judgment is liable to be set aside.
11. PW7- the detecting officer is not supported by any other official or independent witnesses, regarding the seizure of the contraband from the possession of the appellant/accused. Ext.P1- seizure mahazar, though contains specimen impression of the seal on its last page, the nature of the seal used is not mentioned in the seizure mahazar. So learned State Brief would contend that we cannot rule out the possibility of affixing specimen impression of the seal in the mahazar at a later stage. Ext.P11 arrest memo said to have been prepared by PW7 at the place of occurrence shows the crime number also. Ext.P13 FIR shows the detection at 6.40 pm on 3/2/2007, and the crime was registered at 8.30 pm on 3/2/2007. The arrest memo, if prepared at the spot of detection at 6.40 pm, may not contain the crime number which was prepared at 8.30 pm. So the crime number mentioned in Ext.P11 arrest memo will affect the veracity of the prosecution case, that the accused was arrested from the scene of occurrence.
12. In Rafeeque v. Sub Inspector of Police [2020 (4) KLT 188] , this Court held that, in the absence of any explanation offered by the prosecution, regarding presence of crime number in the arrest memo
