High Court Kerala High Court

Radhakrishnan vs Staet Of Kerala on 29 September, 2008

Kerala High Court
Radhakrishnan vs Staet Of Kerala on 29 September, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1435 of 2001(R)



1. RADHAKRISHNAN
                      ...  Petitioner

                        Vs

1. STAET OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.S.SANAL KUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :29/09/2008

 O R D E R
                            THOMAS P. JOSEPH, J.

                          --------------------------------------
                           Crl.R.P. No.1435 of 2001
                          --------------------------------------
                 Dated this the 29th day of September, 2008.

                                       ORDER

Revision petitioner stands convicted for offence punishable under

Section 55(a) of the Abkari Act (hereinafter referred as ‘the Act’) for allegedly

keeping in his possession rectified spirit meant for illicit manufacture of arrack,

plastic cans and meter to gauge concentration of arrack which is said to have

been detected by Sub Inspector of Police and party on 26.10.1996 at about 3

p.m. Learned Magistrate found him guilty, convicted and sentenced him to

undergo rigorous imprisonment for one year and payment of fine of

Rs.25,000/-. Appeal preferred by him was dismissed. Hence, this revision.

2. Heard. Perused the records.

3. Learned counsel for revision petitioner argued that there is no

evidence to show that revision petitioner was in possession of the contraband,

there is no proper sealing of material objects as found by learned Sessions

Judge and at any rate, no offence under Section 55(a) of the Act is made out.

4. Case is that while the Sub Inspector and party were on patrol duty,

he got information about storing of rectified spirit in Thaiparambil house

allegedly belonging to revision petitioner, Sub Inspector prepared search

Crl.R.P.No.1435/2001

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memorandum and sent to court and reached the said house at about 3 p.m.

Sub Inspector found rectified spirit in two cans, 16 empty cans, sealing machine

and meter to gauge concentration of arrack kept in that house. Those articles

were taken to custody as per Ext.P1, mahazar. Revision petitioner was arrested

at spot. Sub Inspector registered case against revision petitioner. Ext.P4 is the

F.I.R. On the information allegedly given by revision petitioner, a scooter was

seized from the workshop of PW4 as per Ext.P5 dated 27.10.1996. PWs 2 to 4

are witnesses to said incident but refused to support the prosecution. PWs 2

and 3 admitted their signature in Ext.P1 but claimed that they were made to

sign the document at the police station. PW5 is an attestor to Ext.P5 but did

not support. PW1, Constable and PW7, Sub Inspector gave evidence regarding

alleged seizure. They stated in tune with Ext.P1 and claimed that revision

petitioner was arrested at spot. PWs 1 and 7 identified MOs 1 to 6 as the

articles seized from the house in question. PW6, Village Officer was examined

to prove the certificate issued by him. His evidence is that the property

comprised in R.S.No.91/19 where the house in question is situated, stood in the

name of Kochukutty, father of revision petitioner. I have gone through the

evidence of PWs 1 and 7 and find no reason to disbelieve their evidence.

5. Point for consideration is whether revision petitioner was in

possession of MOs 1 to 6. According to learned counsel, Ext.P2 or evidence of

PW6 is not sufficient to prove de jure or de facto possession of house in

question with revision petitioner. Learned counsel says that PW6 was not

competent to prove possession of the house in question.

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6. Though it was suggested to PW7 that sister and brother-in-law of

revision petitioner were also staying in the house in question at the relevant time,

that was denied by PW7. He admitted in cross-examination that the house in

question belonged to Kochukutty, father of revision petitioner and that at the

relevant time, Kochukutty and his wife, Janaki (parents of revision

petitioner) were also staying in the same house. PW7 has not attempted to

peruse the ration card of the house nor has he verified the voters list. The only

evidence adduced by the prosecution to show that the house in question was in

the possession of revision petitioner is Ext.P2 and testimony of PW6 which do

not in any way go in favour of prosecution since, as per that evidence the

property where the house is situated stood in the name of Kochukutty, father of

revision petitioner. When the land where the house is situated belonged to

Kochukutty, one has to presume in the absence of contra evidence that the

house also belonged to Kochukutty. If the house belonged to Kochukitty, and

particularly as he was also residing in that house, the articles kept in that house

also, in the absence of contra evidence, should belong to him. In Madhavi v.

State of Kerala (1963 KLT 659) dealing with such a situation it was pointed out

that –

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“…….. In cases where the facts

warrant it, a presumption of possession of the

article recovered from a house may be raised

against such members of the household as are

in a position to control its affairs provided they

were aware of the presence of the offending

article. ……..”.

Again in Appukuttan Kasaba v. State of Kerala (1964 KLT 683) it was held

dealing with a similar situation that –

“………. It has to be presumed that the

head of the family is responsible for the

contraband found in the house because

according to common course of human

conduct the head of the family can, if he does

not desire its presence in his house, secure its

removal irrespective of the wishes of the

other members of the household. …….”

In the case on hand, there is nil evidence to show that revision petitioner was the

head of the family at the relevant time. I found from the evidence that the house

belonged to and in the possession of revision petitioner’s father Kochukutty. I

also stated that documents like the ration card, voters list, etc. which may have

indicated that revision petitioner was the head of the family were not collected by

PW7. As such, conviction of revision petitioner on the presumption that he was

in possession of the contraband at the relevant time cannot be sustained.

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Resultantly, Revision Petition is allowed. Conviction and sentence

imposed on the revision petitioner are set aside. He is acquitted of the charges

made against him. Bail bond is cancelled.

Crl.M.P.No.6835 of 2001 shall stand cancelled.

THOMAS P.JOSEPH,
JUDGE.

cks

Crl.R.P.No.1435/2001

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Thomas P.Joseph, J.

Crl.R.P.No.1435 of 2001

ORDER

29th September, 2008