IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 CRL.A.No. 851 of 2009() ----------------------- SC.130/2008 of ADDL. SESSIONS COURT (ADHOC), KOLLAM CP.4/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... APPELLANT(S): -------------- RAVI, C. NO. 2795, CENTRAL PRISON, THIRUVANANTHAPURAM BY ADV. SMT.ASHA CHACKO (STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, ADV. PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON 10/11/2010 DELIVERED THE FOLLOWING: (CR) K. HEMA, J --------------------------------------- Crl.Appeal.No.851 of 2009 ---------------------------------------- Dated this the 10th day of November, 2010 J U D G M E N T If a contraband article is seen kept or stored in a building or house, can owner or occupier of such building be held liable for “storing” or “possession” of such article under the Abkari Act ('the Act', for short)? Does “possession” follow “storage”? Can presumption under Section 64 of the Act be drawn if the court finds that as per the case records, prosecution has not even alleged commission of any of the offences referred to in the said section? These are the few important questions for consideration in this appeal. 2. According to prosecution, on 06. 12. 2004 at about 01.30 pm., PW1 Excise Inspector got reliable information that arrack was 'kept' in appellant's (A2) house. A search memo was prepared and PW1 and his party proceeded to house. When they reached the house, appellant and 1st accused were present in the house. The house was searched and three cans containing 35 litres of arrack were found in a room situated on the western side of the kitchen of the house. Appellant was questioned about the arrack, when he stated that 1st Crl.A. No.851/09 2 accused had brought it to his house and he allowed 1st accused to keep the arrack in his house. Both of them were arrested from the spot and contraband articles were also seized under a mahazar, Ext.P1. A case was registered, as per Ext. P6 and after investigation, PW5 filed a report under Section 50 of the Act. 3. Prosecution examined PW1 to PW5 and marked Ext. P1 to P11 and MO1 and MO2 on its side. Both accused, while questioned under Section 313 of Cr.P.C., stated they are innocent of the allegations made but they did not adduce any evidence. Trial court, on an analysis of the evidence, held that both accused “stored” arrack and thereby, they were also in “possession” of 105 litres of arrack. They were each convicted under section 8(1) and (2) of the Act and each of them were each sentenced to undergo rigorous imprisonment for two years and pay a fine of Rs.1,00,000/- each and in default, to undergo simple imprisonment for three months. 4. Second accused alone challenged the above conviction and sentence. He filed this appeal from jail. He was undefended and hence, Smt. Asha Chacko was appointed as State brief to defend him. Heard both sides. Learned counsel for appellant submitted that appellant has already served the sentence and he is released from jail also. On merits, ownership of the house was disputed. Contentions were also raised about absence of label on MO2. It was pointed out Crl.A. No.851/09 3 that though MO1-can contained label, it was empty at the time of examination. 5. Learned Public Prosecutor, Sri.K.S. Sivakumar argued that mere absence of label on the can cannot be made a ground to acquit the accused. The seizure was effected in the year 2004 and trial was conducted only only five years, in 2009. During this long period, the cans were kept in the premises of the Excise Office and Court and it is possible that the label would have been lost, the can be damaged, and contents in the can be leaked out and lost. This probability may be kept in mind while analysing evidence, it is submitted. 6. Learned Public Prosecutor also argued that ownership certificate, Exhibit P10 itself shows that appellant is owner of the house. He was also present in the house at the time of seizure of arrack from his house. But, he did not succeed in establishing that the house did not belong to him. Huge quantity of arrack was seized from his house and hence, as the owner and occupier of the house, he can be presumed to have “stored” the arrack and also in “possession” of the arrack seized from his house, it is vehemently argued. 7. On hearing both sides and on going through the records in this case, I find that prosecution has proved by satisfactory evidence that 105 litres of arrack were found kept in the house belonging to and occupied by appellant. It is also proved that appellant was Crl.A. No.851/09 4 present in the house, at the time of detection of the offence and seizure of contraband articles from his house. The evidence of PW1, Excise Inspector, PW2 Assistant Excise Inspector, various contemporaneous and other documents amply prove these facts. 8. The trial court dealt with the rival contentions on ownership and held that the house belongs to appellant, as per ownership certificate, Ext.P10 and that he was also present at the time of search and seizure. The findings of the trial court on the ownership, presence of appellant, seizure of 105 litres of arrack from the house of appellant are only reasonable and sound and I do not find any reason to interfere with such findings. 9. Regarding label, I am of view that on the facts of this case, mere absence of label on one of the cans and absence of the contents in other can also are insufficient to reject the prosecution case as a whole. Trial court has also looked into the matter and rightly rejected contentions of accused. However, a perusal of the entire records and evidence shows that the crucial question to be considered in this case is some thing else. Even if the entire prosecution allegations in this case are accepted, can the court enter a finding that appellant himself “stored” arrack in his house and that he was in “possession” of such arrack ? 10. Learned Public Prosecutor all through maintained the definite Crl.A. No.851/09 5 strong stand that having proved beyond reasonable doubt that arrack was found “stored” in appellant's house, appellant who is owner or occupier of the house can be presumed to have “stored” such article. According to him, “possession” follows “storage” and hence, he can also be held liable for “possession” of arrack. By virtue of Section 64 of the Act also, it can be presumed that appellant committed the offence, since he has not accounted for his possession of arrack, it is further argued. 11. To resolve the issue, it is necessary to understand first, what is meant by the expressions, “store” and “possess” under the Act. The terms, “store” and “possess” are used in Section 8(1) of the Act. According to Section 8(1) of the Act, no person shall, without permit transit, “possess” or “store” arrack in any form. If any person, in contravention of section 8 (1), “stores” or “possesses” arrack, he shall be punishable under Section 8(2) of the Act. 12. The expressions “possess” and “store” are not defined under the Act. The word, “store”, as per Oxford Advanced Learners' Dictionary 7th Edition means, “to put some thing some where and keep it there to use later”. So, act of `putting' and `keeping' of a thing are the overt acts involved in the act of “storing”. However, storing involves not merely 'putting' an article at a place, but it also takes in 'keeping'. Keeping engrosses an element of continuity so that the Crl.A. No.851/09 6 article may be retrieved for use on a future date. 13. Referring to the dictionary meaning of the word, `storing', the Supreme Court, in Bijaya Kumar Agarwala v. State of Orissa, (1996) 5 SCC 1 held thus: “The dictionary meanings suggest that ‘storing’ has an element of continuity as the purpose is to keep the commodity in store and retrieve it at some future date, even within a few days”. Thus, the expression “store” used in section 8(1) of the Act has a specific meaning. If a person 'puts' and 'keeps' the contraband article somewhere for a continuous period or time, for retrieving the same for use on a future date, such act can be construed as “store” for the purpose of Section 8(1) of the Act. 14. But, “storing” is different from being in “possession”. The term “possess” is also not defined under the Act. However, it is well settled by precedents that to constitute “possession”, prosecution must prove that the person who is alleged to be in possession of a contraband article has dominion or control over such article. Referring to various authorities and Salmond's Jurisprudence with approval, the Supreme Court in Gunwantlal v. State of M.P. in (1972) 2 SCC 194 held that the real test for determining “whether a person is in possession of anything is whether he is in general control of it”. 15. “Possession” of an article involves power to control and Crl.A. No.851/09 7 intent to control. The inevitable factor to be proved by prosecution to establish “possession” is, dominion or control over contraband article by accused. A person may have dominion or control over the contraband article, if he is in actual possession of the article. Even if a person is not in actual or physical custody of a contraband article, it is well settled prosecution can establish “possession” if it can successfully prove that accused has control or dominion over such property. Such possession is referred to as “constructive possession” (vide Gunwantlal v. State of M.P. in (1972) 2 SCC 194). 16. Thus, possession can either be physical/actual possession or constructive possession. In either case, whether it be physical or constructive possession, prosecution must inevitably prove that the person who is alleged to be in “possession” of a contraband article has dominion or control over such article. The question whether a person is in illegal physical/actual possession or constructive possession of a contraband article is a mixed question of fact and law. It depends on facts and circumstances of each case. Referring to “possession”, it is held by 3 judges-bench of the Supreme Court in Superintendent and Remembrancer of Legal Affairs v. Anil Kumar Bhunja 1979) 4 SCC 274 held thus: “this issue, in turn, is a mixed issue of fact and law, depending on proof of specific facts or definite circumstances by the prosecution”. Crl.A. No.851/09 8 17. The above principle will apply to a case of “storing” also. Whether a person has illegally “stored” an article is a mixed question of facts and law. Whether a person is in possession of an article or has stored the same, depends on facts and circumstances proved in each case. The facts to be proved to establish “storing” and “possession” are different. An example will make the position can be clearer: 18. A person, say 'A' owns a contraband article and he is having dominion or control of the same. He may put it and keep it in his own house, to retrieve it for use on a future date. Here, he has “stored” the article and he is also in “possession” of the same. So, if such article is seized from his house, he can be said to have stored the article and also in possession of the same. 19. However, `A' removes an article belonging to him to B's house. He puts and keeps the article in B's house (with permission of the latter), to retrieve it for use on a future date. While doing so,`A' himself retains control or dominion over the article but, B has no such control or dominion over the same. B only allowed A to store it in his house, knowing that the article is a contraband article. 20. In the above example, A “stores” the article and he is also in “possession” of it, even though the article is stored in B's house. 'B' has neither stored it nor is he in possession of the same. B's liability is limited only in permitting A to “store” the article in his house, with Crl.A. No.851/09 9 his knowledge and consent. If such article is seized from B's house, B cannot be said to have “stored” the same nor is in “possession” of the same. 21. Suppose, 'A' employs his servant, B to store the article in B's house. 'B' removes the article from A's house and puts and keeps it in B's house, on the understanding that 'A' will retrieve it for his use on a future date, when 'A' is in need of it. `A' retains control or dominion over the article but B is not given any right or authority to deal with the article, as he pleases. `B' has no dominion or control over the property. Here, B “stores” the article but `A' does not “store” the same. 'A' is in “possession” of the article but, B is not in “possession”. If the article is seized from B's house, B can be held liable for “storing” and not for “possession”; A is liable for “possession” but not for “storing”. 22. Thus, it will be clear that only because an article is found kept or stored in a building or house, the owner or occupier of such building cannot be said to have “stored” the article, nor can it be said that he is in “possession” of such article. There is also no presumption either on facts or in law that an article which is seen kept or stored in a building or house is “stored” or “possessed” by the owner or occupier of the building. Even if owner or occupier of the house was present in the house at the time of seizure, he cannot be presumed to Crl.A. No.851/09 10 be in possession of the article or stored the same. 23. The Supreme Court in Ismailkhan Aiyubkhan Pathan v. State of Gujarat, (2000) 10 SCC 257 held thus: “There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under Section 114 of the Evidence Act merely because these persons were present when PW 7 went there”. 24. Thus, the question whether a person “stored” the article which is found kept in his house, or whether he is in “possession” of such article does not depend merely on ownership or possession of the house. An owner or occupier of the building or house cannot be held liable for “storing” or for “possession” of such article, for the sole reason that he is the owner or occupier of the building or house. 25. The person who “stores” an article in a building or house need not be in “possession” of the same. Like wise, the person who is in “possession” of an article might not have “stored” it in the building. Therefore, “possession” does not follow “storage” nor does “storage” follows “possession”. “Possession” and “storing” connote different things. The facts to be proved to constitute “possession” and “storing” are different. “Possession” as well as “storing” of arrack are prohibited under the Act. Illegal possession and storing of arrack Crl.A. No.851/09 11 constitute independent offences under Section 8(2) of the Act and each such act calls for separate punishments also. 26. In this context, it is pertinent to note that Section 55 of the Act also refers to the same expressions, “possesses” and “stores”. “Possession” of liquor is an offence under Section 55(a) of the Act whereas, “storing” of liquor for sale is also an offence under Section 55(i) of the Act, provided such possession and storing are in contravention of any of the provisions of the Act, Rules or Order under the Act. If both acts of “possession” and “storing” carry the same meaning, it was unnecessary to prohibit each of such acts separately under Section 8(1) of the Act or under different sub-clauses of Section 55 of the Act. 27. Legislature treated “possession” and “storing” as different acts. The court shall not therefore, proceed as if “possession” and “storing” connote the same thing. It shall first ascertain from the case records, what exactly is the overt act alleged against the particular accused. The court shall not proceed on any assumption or presumption that owner or occupier of such building has stored it or he is in possession, only because a contraband article is allegedly seized from a building or house belonging to him. 28. The detecting officer and the investigating officer also shall not proceed on any assumption that the owner or occupier of the Crl.A. No.851/09 12 building would have stored or is in possession of the contraband article which is found in a building. It is the duty of the detecting officer to satisfy himself, before a person is arrested that he has committed a particular act which makes him liable for an offence. The investigating officer also shall investigate into the relevant aspects and confirm whether the accused committed any act or omission in respect of the contraband article which makes him liable for any offence under the Act. 29. In this case, the investigating officer has rightly conducted an investigation into the relevant aspects. Even though arrack was seized from appellant's house, it was found on investigation that appellant was not in “possession” of the arrack nor did he “store” the same in his house. On the other hand, appellant only permitted 1st accused to use his house for such storing and according to prosecution, 1st accused “stored” the arrack in appellant's house and 1st accused himself was in “possession” of arrack. 30. In the mahazar itself,it is stated that when appellant was questioned from the spot, he had told the officials that 1st accused had kept it in his house. As per evidence, first accused was also present in the house,when the search was conducted and he did not make any statement to the contrary.Thus this is a case where prosecution itself has no case that appellant either“stored” the arrack in his house or Crl.A. No.851/09 13 was in “possession” of the same. 31. But, trial court lost sight of this important aspect and proceeded as though, appellant stored the arrack and he was in possession same, on a wrong pre-conceived notion that owner or occupier of the house, under all circumstances, is liable for possession and storing of the contraband article, which is seized from his house. The court below did not pay any attention to go through the case records and documents to understand what exactly are the allegations made against accused by prosecution against each of the accused, before framing charge or convicting the accused. 32. The trial court also committed a grave error in convicting appellant for the acts which are not even alleged against appellant. The only act alleged to have been committed by appellant is, “permitting” first accused to use his house for storing arrack for sale. Such an act may fall under Section 64A of the Act, provided other requirements under the said section are satisfied. A reading of Section 64A of the Act shows that if an owner or occupier or person, having control of any building permits any person to use such building, room for storing liquor for sale, in contravention of the Act etc., he shall be punishable under the said section. 33. Of course,`Section 64A' is not specifically quoted in the report filed on completion of investigation. But, the facts revealed Crl.A. No.851/09 14 from case records and documents produced are sufficient to presume that appellant committed offence under Section 64A of the Act and not under Section 8 of the Act. But, no charge was framed by the court against appellant, under Section 64A of the Act. None of the ingredients of offence under Section 64A were also stated in the charge or even indicated therein. 34. No allegations as would attract offence under section 64A were brought to the notice of appellant, while his plea was recorded on the charge. No evidence was adduced to establish that accused committed offence under Section 64A of the Act. No question was also put to appellant, whether he “permitted” first accused to store arrack in his house etc., while he was questioned under Section 313 of the Cr. P.C. Hence, it is not possible to convict appellant under Section 64A. 35. The court below also wrongly framed a charge against appellant under Section 8 of the Act, stating that he stored arrack and thereby, he was also in possession of arrack, even though prosecution itself has no such case. He was also wrongly convicted under Section 8(2) of the Act, for an act which is not even ALLEGED to be committed by him. The mistake committed by the court below cannot be ignored lightly. It is a serious type of mistake and I may call it `judicial negligence'. The appellant had to pay a heavy cost for such negligence and the consequences were too harsh. Crl.A. No.851/09 15 36. Appellant underwent rigorous imprisonment for two years and also simple imprisonment for three months, in default of payment of fine of Rs.1,00,000/- under section 8(2). Unfortunately, punishment which he suffered was not for the acts which are even alleged against him by prosecution. Even if court below had accepted the entire allegations made by prosecution, charge could be framed only under Section 64A of the Act, for which, the punishment prescribed is only fine. Thus, the court below committed an error in framing charge under section 8(2) and also convicting appellant for the offence which is not even alleged. 37. To err is human. But, certain errors are avoidable, if a little bit of care is taken by courts. Had due attention been paid by court below to peruse the case records and the documents and try to understand what exactly is the allegation made by prosecution against appellant, it would have been very easy to find that the offence allegedly committed by accused is not under section 8 of the Act. Hence, charge would not have been framed, appellant would not have been tried, convicted or sentenced for imprisonment for offence Section 8(2) of the Act. Instead, the court below would have framed charge against appellant only under Section 64A of the Act, for the act which he allegedly committed. 38. Therefore, criminal courts in the State shall bear in mind that Crl.A. No.851/09 16 it is likely that a wrong charge would be framed against an accused and he may be tried for an act which is not even alleged to have been committed by him unless due care is taken while framing charge. It is also likely that there would be omission to frame charge for the act which is actually committed by an accused. This case is a right example for such errors and omissions. The error or omission can lead to gross injustice by convicting a person for an act which is not even alleged to be have been committed by him. It can also end up in unmerited acquittal of a person by not trying him for the offence which is actually committed by him. 39. I would therefore, take this opportunity to call upon the trial courts in the State that they shall pay scrupulous attention while framing charge for any offence. “Offence” means, as per Section 2(n) of the Code of Criminal Procedure, any “act” or “omission” made punishable by any law, for the time being in force. Charge shall be framed only in respect of an act or omission which constitutes an offence. Before charge is framed against an accused, every trial court shall ascertain