evidence, it is clear that the revision petitioner had no
control over the alleged shop when PW1 was conducting
search and seizure. If the revision petitioner was
conducting any sale of prohibited and obscene materials,
it is the primary responsibility of the prosecution to prove
the possession of the shop. When petitioner is in
possession of the room, the connected aspects such as
physical control and custody is to be proved by the
prosecution. While explaining the various situation
relating to the possession, the functional and relative
concepts have to be examined in a wider sense. The
degree of physical control exercised by the revision
petitioner is very relevant and knowledge of the person
claiming such possessory right over the thing has to be
proved.
The probative information stored in digital form in
a compact disc can be used before court as digital
evidence or electronic evidence. The digital evidence is
highly fragile and can be easily altered, damaged or
destroyed and also time sensitive. Therefore special
precaution should be taken to this document to collect
preserve and examine this evidence. No analysis of the
compact disc (hereinafter referred as CD) was made by
the investigating officer to discover the files in it. This
includes normal files, deleted files and encrypted files.
Therefore, for identification of the files in the CD digital
evidence is necessary. Identification of the type of
information stored in the disc is necessary, for this
appropriate technology can be used to extract it. Without
examining the digital data in a scientific manner, viewing
of the CD by the Magistrate, Assistant Public Prosecutor
and the Sub Inspector is unsustainable in law and their
satisfaction is not an appreciation of electronics evidence
in law. An electronic record by way of secondary evidence
shall not be admitted in evidence unless the requirements
under Section 65B are satisfied. Thus, in the case of CD,
the same shall be accompanied by a certificate in terms of
Section 65B obtained at the time of taking the documents,
without which, the secondary evidence pertaining to that
electronic record, is inadmissible. Moreover the expert
opinion under Section 45A of the Evidence Act was not
obtained relating to the stored data in electronic form. In
the absence of such a certificate and opinion, the oral
evidence to prove existence of such electronic evidence is
not sufficient to prove authenticity thereof.
However, while considering the offence under
Section 292(2)(a), 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
granted that the revision petitioner was 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. In a case for
offence under Section 292 of the IPC, prosecution has to
prove that the accused sells, let to hire, distribute,
publicly exhibits or in any manner puts into circulation, or
for purposes of sale, hire, distribution, public exhibition or
circulation, makes, produces or has in his possession any
obscene book, pamphlet, paper drawing, painting,
presentation or figure or any other obscene object
whatsoever as alleged by the prosecution. There must be
direct evidence with regard to the possession or sale of
the obscene books or articles. There is no presumption
with regard to possession, mere fact that some books
were seized from a particular shop by a police officer.
There may be exceptional cases, where the rule of
presumption applies. In such cases, the proved facts and
circumstances may speak for themselves and court may
be justified in reaching a conclusion in the light of
available evidence.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE P.D.RAJAN
15TH DAY OF DECEMBER 2015
Crl.Rev.Pet.No. 3780 of 2006 ( )
KONNADAN ABDUL GAFOOR
Vs
THE STATE OF KERALA
Citation: 2016 CRLJ 2647
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 charge-
sheeted 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 Savigny-
ian "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.
Oswald v. Weigel 219 Kan. 616, 549 p. 2d
568, 569. The detention and control or the
manual or ideal custody, of anything which
may be the subject of property, for one's
use and enjoyment, either as owner or as
the proprietor of a qualified right in it, and
either held personally or by another who
exercises it in one's place and name. Act or
state of possessing. That condition of facts
under which one can exercise his power
over a corporeal thing at his pleasure to the
exclusion of all other persons. The law, in
general, recognizes two kinds of possession:
actual possession and constructive
possession. A person who knowingly has
direct physical control over a thing, at a
given time, is then in actual possession of it.
A person who, although not in actual
possession, knowingly has both the power
and the intention at given time to exercise
dominion or control over a thing, either
directly or through another person or
persons, is then in constructive possession
of it. The law recognizes also that
possession may be sole or joint. If one
person alone has actual or constructive
possession of a thing, possession is sole. If
two or more persons share actual or
constructive possession of a thing,
possession is joint."
8. On a perusal of the oral and documentary
evidence, it is clear that the revision petitioner had no
control over the alleged shop when PW1 was conducting
search and seizure. If the revision petitioner was
conducting any sale of prohibited and obscene materials,
it is the primary responsibility of the prosecution to prove
the possession of the shop. When petitioner is in
possession of the room, the connected aspects such as
physical control and custody is to be proved by the
prosecution. While explaining the various situation
relating to the possession, the functional and relative
concepts have to be examined in a wider sense. The
degree of physical control exercised by the revision
petitioner is very relevant and knowledge of the person
claiming such possessory right over the thing has to be
proved.
9. The probative information stored in digital form in
a compact disc can be used before court as digital
evidence or electronic evidence. The digital evidence is
highly fragile and can be easily altered, damaged or
destroyed and also time sensitive. Therefore special
precaution should be taken to this document to collect
preserve and examine this evidence. No analysis of the
compact disc (hereinafter referred as CD) was made by
the investigating officer to discover the files in it. This
includes normal files, deleted files and encrypted files.
Therefore, for identification of the files in the CD digital
evidence is necessary. Identification of the type of
information stored in the disc is necessary, for this
appropriate technology can be used to extract it. Without
examining the digital data in a scientific manner, viewing
of the CD by the Magistrate, Assistant Public Prosecutor
and the Sub Inspector is unsustainable in law and their
satisfaction is not an appreciation of electronics evidence
in law. An electronic record by way of secondary evidence
shall not be admitted in evidence unless the requirements
under Section 65B are satisfied. Thus, in the case of CD,
the same shall be accompanied by a certificate in terms of
Section 65B obtained at the time of taking the documents,
without which, the secondary evidence pertaining to that
electronic record, is inadmissible. Moreover the expert
opinion under Section 45A of the Evidence Act was not
obtained relating to the stored data in electronic form. In
the absence of such a certificate and opinion, the oral
evidence to prove existence of such electronic evidence is
not sufficient to prove authenticity thereof.
10. However, while considering the offence under
Section 292(2)(a), 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
granted that the revision petitioner was 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. In a case for
offence under Section 292 of the IPC, prosecution has to
prove that the accused sells, let to hire, distribute,
publicly exhibits or in any manner puts into circulation, or
for purposes of sale, hire, distribution, public exhibition or
circulation, makes, produces or has in his possession any
obscene book, pamphlet, paper drawing, painting,
presentation or figure or any other obscene object
whatsoever as alleged by the prosecution. There must be
direct evidence with regard to the possession or sale of
the obscene books or articles. There is no presumption
with regard to possession, mere fact that some books
were seized from a particular shop by a police officer.
There may be exceptional cases, where the rule of
presumption applies. In such cases, the proved facts and
circumstances may speak for themselves and court may
be justified in reaching a conclusion in the light of
available evidence.
11. In the absence of any evidence, the conviction
under Section 292 IPC is unsustainable in law. In my
opinion, both courts violated the fundamental rules of
appreciation of evidence and observed that obscene
articles were seized from the possession of revision
petitioner, which was not proved in by evidence. Such an
approach followed by the court below resulted in
miscarriage of justice. Therefore, in my opinion, this is a
fit case to invoke revisional jurisdiction and at any rate the
accused/revision petitioner is entitled to get the benefit of
doubt which was available to him. From the plain reading
of the afore said evidence, it is clear that the prosecution
utterly failed to prove the possession satisfactorily and
accused is entitled to get the benefit of doubt.
In the result, the conviction and sentence passed by
the court below under Section 292 IPC are set aside and
the revision petitioner is acquitted and set at liberty.
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