Radhakrishnan vs Staet of Kerala on 29 September, 2008

Kerala High CourtRadhakrishnan 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 forillicit manufacture of arrack, plastic cans and meter to gauge concentration of arrack which is said tohave been detected by Sub Inspector of Police and party on 26.10.1996 at about 3 p.m. LearnedMagistrate found him guilty, convicted and sentenced him to undergo rigorous imprisonment forone year and payment of fine of Rs.25,000/-. Appeal preferred by him was dismissed. Hence, thisrevision.

2. Heard. Perused the records.

Radhakrishnan vs Staet Of Kerala on 29 September, 2008

Indian Kanoon - http://indiankanoon.org/doc/299596/ 1

3. Learned counsel for revision petitioner argued that there is no evidence to show that revisionpetitioner was in possession of the contraband, there is no proper sealing of material objects asfound by learned Sessions Judge and at any rate, no offence under Section 55(a) of the Act is madeout.

4. Case is that while the Sub Inspector and party were on patrol duty, he got information aboutstoring of rectified spirit in Thaiparambil house allegedly belonging to revision petitioner, SubInspector prepared search Crl.R.P.No.1435/2001 memorandum and sent to court and reached thesaid house at about 3 p.m. Sub Inspector found rectified spirit in two cans, 16 empty cans, sealingmachine and meter to gauge concentration of arrack kept in that house. Those articles were taken tocustody as per Ext.P1, mahazar. Revision petitioner was arrested at spot. Sub Inspector registeredcase against revision petitioner. Ext.P4 is the F.I.R. On the information allegedly given by revisionpetitioner, a scooter was seized from the workshop of PW4 as per Ext.P5 dated 27.10.1996. PWs 2 to4 are witnesses to said incident but refused to support the prosecution. PWs 2 and 3 admitted theirsignature in Ext.P1 but claimed that they were made to sign the document at the police station. PW5is an attestor to Ext.P5 but did not support. PW1, Constable and PW7, Sub Inspector gave evidenceregarding alleged seizure. They stated in tune with Ext.P1 and claimed that revision petitioner wasarrested 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 theproperty comprised in R.S.No.91/19 where the house in question is situated, stood in the name ofKochukutty, father of revision petitioner. I have gone through the evidence of PWs 1 and 7 and findno reason to disbelieve their evidence.

5. Point for consideration is whether revision petitioner was in possession of MOs 1 to 6. Accordingto learned counsel, Ext.P2 or evidence of PW6 is not sufficient to prove de jure or de factopossession of house in question with revision petitioner. Learned counsel says that PW6 was notcompetent to prove possession of the house in question. Crl.R.P.No.1435/2001

6. Though it was suggested to PW7 that sister and brother-in-law of revision petitioner were alsostaying in the house in question at the relevant time, that was denied by PW7. He admitted incross-examination that the house in question belonged to Kochukutty, father of revision petitionerand that at the relevant time, Kochukutty and his wife, Janaki (parents of revision petitioner) werealso staying in the same house. PW7 has not attempted to peruse the ration card of the house norhas he verified the voters list. The only evidence adduced by the prosecution to show that the housein question was in the possession of revision petitioner is Ext.P2 and testimony of PW6 which do notin any way go in favour of prosecution since, as per that evidence the property where the house issituated stood in the name of Kochukutty, father of revision petitioner. When the land where thehouse is situated belonged to Kochukutty, one has to presume in the absence of contra evidence thatthe house also belonged to Kochukutty. If the house belonged to Kochukitty, and particularly as hewas also residing in that house, the articles kept in that house also, in the absence of contraevidence, should belong to him. In Madhavi v. State of Kerala (1963 KLT 659) dealing with such asituation it was pointed out that -



Crl.R.P.No.1435/2001 "........ In cases where the facts warrant it, a presumption of possession of thearticle recovered from a house may be raised against such members of the household as are in aposition 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 similarsituation that -

".......... It has to be presumed that the head of the family is responsible for thecontraband found in the house because according to common course of humanconduct 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 familyat the relevant time. I found from the evidence that the house belonged to and in the possession ofrevision 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 collectedby PW7. As such, conviction of revision petitioner on the presumption that he was in possession ofthe contraband at the relevant time cannot be sustained. Crl.R.P.No.1435/2001 Resultantly,Revision Petition is allowed. Conviction and sentence imposed on the revision petitioner are setaside. 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 Thomas P.Joseph, J.

Crl.R.P.No.1435 of 2001 ORDER 29th September, 2008




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Radhakrishnan vs Staet of Kerala on 29 September, 2008