When possession and sell of obscene CD is not proved?

 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.

     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.