Possession; Konnadan Abdul Gafoor Vs. State [Kerala High Court, 15-12-2015]

Cinematographic Act, 1952 – S. 7(a)(i)(ii) – Penal Code, 1860 – S. 292(2)(a) – Sale of prohibited and obscene materials – the prosecution has to prove that the accused sold, distributed and publically exhibited the obscene materials. Simply certain CDs were seized from a shop on the basis of information, it cannot be taken for guilty of such crime. It is the primary responsibility of the prosecution to prove that the accused was in possession of the shop and the seized articles are obscene articles.

Possession


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.D. RAJAN, J.

Crl.R.P.3780 of 2006

Dated this the 15th of December 2015

AGAINST THE JUDGMENT IN CRL. APPEAL 135/2005 of ADDL. SESSIONS COURT (ADHOC)-II, MANJERI AGAINST THE JUDGMENT IN CC 532/2003 of J.M.F.C., NILAMBUR

REVISION PETITIONER(S)/APPELLANT/ACCUSED

KONNADAN ABDUL GAFOOR

BY ADV. SRI.BABU S. NAIR

RESPONDENT(S)/RESPONDENT/STATE/COMPLAINANT

THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE VAZHIKKADAVU POLICE STATION – THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI-31.

BY PUBLIC PROSECUTOR SRI. N. SURESH

ORDER

This revision petition is preferred by the accused against the judgment in Crl. Appeal 135/05 of the Additional Sessions Adhoc II, Manjeri. He was chargesheeted in C.C.532/03 before the Judicial First Class Magistrate, Nilambur for offence punishable under

Section 292(2)(a) of IPC

and under

Section 7(a)(i)(ii) of Cinematographic Act 1952.

The charge against the accused is that on 25.08.02, at 7.00 pm., the Sub Inspector of Police, Vazhikadavu searched the shop ‘Shajahan Videos’, door No.1/101 of Vazhikadavu Grama Panchayat and seized 7 obscene Compact Discs from that shop. He registered a case against the accused and after completing investigation, he laid charge before Judicial First Class Magistrate Nilambur.

2. During trial, prosecution examined PW1 to PW9 and marked Exts.P1 to P6 as documentary evidence and admitted MO1 in evidence. The learned Magistrate convicted the accused under Section 292 (2)(a) of IPC and sentenced to undergo simple imprisonment for one month and fine of Rs.1000/- with a default sentence of one month and acquitted under Section 7(a)(i)(ii) of Cinematographic Act 1952. Against that, he preferred Crl. Appeal.135/05 before Additional Sessions Court (Adhoc-II), Manjeri, where the conviction and sentence passed by the trial court were confirmed and dismissed the appeal. Being aggrieved by that, he preferred this revision petition.

3. Heard both sides and perused the records, which includes the oral and documentary evidence. It appears that both courts did not consider and appreciate the evidence with regard to possession of property. Both courts misread the evidence and had gone under the impression that the revision petitioner was in possession of the shop buildings, which was not established with cogent and convincing evidence. Many facts which ought to have been considered in favour of the revision petitioner were not properly considered and this is a good reason for invoking revisional jurisdiction.

4. The occurrence was stated by PW1, then Sub Inspector, Vazhikkadavu Police Station. The evidence of PW1 shows that on 25.08.02, he got information that revision petitioner was conducting sale of obscene Compact Discs in his shop. On the basis of that information, he prepared Ext.P1 search memorandum and arrived at the place of occurrence and conducted a search in the presence of independent witnesses. He detected MO1 series obscene articles and seized it after preparing Ext.P2 search list. The accused was arrested and reaching at the police station, he registered a crime, Ext.P3 is the FIR. The seized C.Ds. were marked as MO1 in the trial court. The revision petitioner in his defence contended that he is not conducting that shop as alleged by PW1.

5. Another occurrence witness PW3, Head Constable of the Vazhikkadavu, Police Station who accompanied PW1 supported the evidence of PW1. According to his evidence, PW1 prepared search memorandum at 19.00 hours and conducted search in the presence of independent witnesses. The occurrence witnesses PW2 and PW4 did not support the evidence of PW1, but they admitted their signature in Ext.P2. Analysing the evidence of PW1, PW2, PW3 and PW4, it is clear that the possession of the shop is very relevant while considering the allegation against the revision petitioner.

6. Possession of the shop means the continuing exercise of a claim to the exclusive use of it. It requires two aspects, the thing and a mental feeling. It is the conscious feeling of the custodian to exclude others from the control of the shop. To prove the possession of the shop, prosecution examined PW5, the Secretary of Vazhikadavu Grama Panchayat. He deposed that he issued Ext.P4 certificate and as per the certificate, Secretary, Mufthal Islam Madrassa, Munda is the owner of the building. The owner of the building was examined as PW6 in the trial court and he deposed that revision petitioner never conducted any shop in that building. This witness was declared as hostile by the prosecution. PW7 attested Ext.P5 mahazar and PW8 attested Ext.P6 seizure mahazar. The investigation was conducted by PW9, the Head Constable, who prepared Ext.P6 seizure mahazar. What is seen from the evidence of the occurrence witness as well as the witness present at the time of preparing mahazar is that the possession of the shop at the time of seizure of MO1 obscene articles was not properly proved by the prosecution.

7. Apex Court in

Mohan Lal V. State of Rajasthan 2015 (5) SCALE 330

held as follows;

“8. When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to “actus of physical control and custody”. Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word possession. The classical theory of English law on the term “possession” is fundamentally dominated by Savignyian “corpus” and “animus” doctrine. Distinction has also been made in “possession in fact” and “possession in law” and sometimes between “corporeal possession” and “possession of right” which is called “incorporeal possession”. Thus, there is a degree of flexibility in the use of the said term and that is why the word possession can be usefully defined and understood with reference to the contextual purpose for the said expression. The word possession may have one meaning in one connection and another meaning in another.

9. The term “possession” consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. One of the definitions of possession given in Black’s Law dictionary is as follows:

“Having control over a thing with the intent to have and to exercise such control.