Achankunju v. State

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 17TH DAY OF JULY 2018 / 26TH ASHADHA, 1940** ## **CRL.A.No. 955 of 2005** **AGAINST THE JUDGMENT IN SC 354/2003 of THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT I, ALAPPUZHA DATED 09-05-2005** **AGAINST THE JUDGMENT IN CP 124/2002 of JUDICIAL MAGISTRATE OF FIRST CLASS, MAVELIKKARA** ## **APPELLANT/ACCUSED:** **ACHANKUNJU, S/O SAMUEL VALUTHARA VADAKKETHIL VEEDU,, ARUNOOTTIMANGALAM, VETTIAR P.O., MAVELIKARA.** **BY ADVS. SRI.P.SREEKUMAR SMT.HARITHA V A** ## **RESPONDENT/COMPLAINANT:** **1 STATE REPRESENTED BY EXCISE INSPECTOR MAVELIKKARA RANGE.** - **2 THE PUBLIC PROSECUTOR HIGH COURT OF KERALA.** **BY SMT.SHEEBA K K, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **MARY JOSEPH, J --------------------------------------------------Crl.A No.955 of 2005** **--------------------------------------------------Dated this the 17[th] day of July, 2018** ## **J U D G M E N T** This appeal is directed against the judgment dated 9.5.2005 of the Additional Sessions Judge, Fast Track I, Alappuzha (for short 'the court below') in S.C.No.354/2003. The appellant is the sole accused in the case, who was found guilty by the court below for the offence punishable under Section 8(2) of the Abkari Act (for short 'the Act') and convicted and sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.1,00,000/-. He was also directed to undergo simple imprisonment for six months in default of payment of fine. Aggrieved by the aforesaid judgment, the accused has approached this Court in the appeal on hand. 2. Smt.Haritha.V.A. and Smt.Sheeba.K.K, the learned counsel and the learned Public Prosecutor respectively addressed this Court for the appellant and the respondent. 3. Before adverting to the rival contentions, it is relevant to have a discussion on the facts of the prosecution case in brief. On 19.9.2001 at about 6.30 pm, CW1, the Preventive Officer attached to the Excise Range Office, Mavelikkara was on patrol duty at Vettiyar village alongwith the excisemen. They found the accused proceeding through the road against them from Mooleppally junction, carrying a bottle having the capacity of 1.5 litres. On watching them, the accused attempted to escape from the spot, but was caught and questioned. The bottle carried by him when examined was found to contain some liquid. CW1 poured some liquid in his hand and smelled and tasted it. He identified the liquid as arrack. 200 ml of arrack was drawn therefrom as sample in a 375 ml capacity bottle and sealed. The signatures of himself and the excisemen accompanying him were obtained on a label and affixed thereon. Seizure mahazar was prepared from the spot. The accused was arrested after complying with the formalities of arrest. Arrest notice was prepared and forwarded to a near relative of the accused. Thereafter, the accused alongwith the properties seized from the spot have been taken to the Excise Range Office, Mavelikkara. Those were kept by CW1 in his custody overnight and handed over to CW5, the Excise Inspector of the said Excise Range. The crime and occurrence report was prepared by CW5 on the day itself. List of Property and Forwarding Note were also prepared and forwarded to Judicial First Class Magistrate Court, Mavelikkara on 20.9.2001, the succeeding day itself. The accused was also produced before the court on the same day. Thereafter, investigation was proceeded with and culminated in the filing of a final report before the Judicial First Class Magistrate Court, Mavelikkara on 30.6.2002. The Judicial First Class Magistrate Court, Mavelikkara received the final report on file and committed the same to the Court of Sessions, Alappuzha on being convinced that the offence included therein is exclusively triable by that court. The Court of Sessions made over the case to the court below for trial. On summons being served, the accused appeared before the court. After hearing the learned Public Prosecutor and the learned counsel representing the accused, charge was framed by the court below for the offence under Sections 8(1) punishable under Section 8(2) of the Act. Charge when read over and explained to him, he pleaded not guilty and faced trial. 4. The prosecution had examined witnesses as PWs 1 to 4, marked documents as Exts.P1 to P4 and material object as MO1. On closure of the evidence of the prosecution, the accused was questioned by the court below under Section 313(1)(b) Cr.P.C with reference to the incriminating evidence brought against him. The accused denied all such questions put to him and took a specific plea of false implication. After hearing the learned Public Prosecutor and the counsel representing the defence and on finding that any grounds did not exist to record an order of acquittal, the court below directed the accused to enter on defence. The accused examined a witness on his side as DW1. Having considered the rival contentions of the learned Public Prosecutor and the learned counsel representing the accused and having perused oral as well as documentary evidence on record, the court below arrived at a conclusion that accused is guilty of the offence under Section 8(1), punishable under Section 8(2) of the Act. Accordingly, he was convicted and sentenced by the judgment challenged in this appeal on grounds as stated herein below: i) The arrest of the accused in the case on hand is illegal, since the arrest memo and arrest notice allegedly prepared by PW3 are not forthcoming in evidence. The learned counsel has cited **Ramankutty v. Excise Inspector, Chelannur Range [2013(3) KHC 308]** to rest his argument that for non-establishment of a valid arrest, the trial is vitiated. ii. PW1 and PW3 deposed inconsistently on material particulars, while tendering oral evidence and thereby their versions turned incredible ones. iii. The sample drawn from the property seized, reached the court and further to the Chemical Examiner's Laboratory for analysis delayed by a week, which delay remained unexplained. iv. Want of affixture of personal seal of PW3 on the properties seized from the spot and impression of the same in the forwarding note prepared and forwarded to the court. 5. Before adverting to the grounds upon which the argument was centred, it is relevant to have a look at the oral evidence tendered by the witnesses examined by the prosecution. PW3 is the detecting and seizing officer in the case on hand. He is none other than a preventive officer attached to the Excise Range Office, Mavelikkara. PW1 is another preventive officer, attached to the same Excise Range and was in the patrolling team and he claims to have witnessed the detection, search and seizure from the spot. PW2 is an independent witness, who turned totally unloyal to the prosecution. PW4 is the Excise Inspector, who had received the properties after seizure at the office of the Excise Range Office, Mavelikkara from PW3 on the day following the date of seizure. The documentary evidence on record include, Ext.P1 seizure mahazar, Ext.P2 crime and occurrence report, Ext.P3 property list and Ext.P4, report of chemical analysis. MO1 is the 1.5 litre capacity plastic bottle containing remnant arrack after drawing a sample of 200 ml therefrom. DW1 is the witness of the defence who is none other than an immediate neighbour of the accused. He was summoned by the accused to speak on his behalf that his arrest is illegal and implication of him in the case is false and foisted. 6. The learned Public Prosecutor contended on the contrary that the case of the prosecution is well established from the oral evidence tendered by PW1 and PW3 and the documentary evidence consisting of Exts.P1 to P4. According to the learned Public Prosecutor, the discrepancies pointed out by the learned counsel for the accused being immaterial ones, cannot be taken to have much adverse bearing on the case of the prosecution. According to him, the versions of witnesses having been corroborated each other in material particulars like detection, search and seizure, the prosecution case is not liable to be thrown out. 7. In the backdrop of the rival contentions advanced by the learned counsel for the defence and the learned Public Prosecutor, this Court ventured to see merits in the contentions advanced by the learned counsel for the defence. A critical evaluation is done for the purpose. 8. Bearing in mind the contention of illegality of the arrest of the accused, a careful analysis of the oral as well as the documentary evidence on record is done. As already stated, PW3 is the detecting and seizing officer in the case on hand. He is the Preventive Officer attached to the Excise Range Office, Mavelikkara who unquestionably is an Abkari Officer empowered by the Act. According to him, after finding the accused in a suspicious circumstance, he had intervened and questioned him. The liquor found in the bottle carried by him was convinced by him in the processes of tasting and smelling as arrack. Accused was arrested after making him convinced of the grounds of arrest. Thereafter, sample of 200 ml was drawn from the liquor and that along with the remnant contraband liquor were sealed and labels wherein the signatures of himself, the Exciseman accompanying him and independent witnesses gathered therein had been procured were affixed thereon. PW3's specific case during examination was that an arrest memo and an arrest notice were prepared from the spot at the time of arrest and the arrest notice was served upon one Mr.Rajan, who is a near relative of the accused. The accused has categorically pointed out that he has no such relative namely Rajan. In the backdrop, it is pertinent to note whether copies of arrest memo and arrest notice are part of the documentary evidence on record. On verification it is found that those do not form part of documentary evidence adduced by prosecution. Therefore it can safely be concluded that the arrest memo and arrest notice were not prepared by PW3 from the spot and his version to that effect during examination is devoid of basis. 9. Yet another important aspect noticed from the evidence on record was that prior to arrest of the accused, PW3 failed to inform the grounds of arrest to the accused. It is a mandatory procedure contemplated by the Code of Criminal Procedure, as well as the Act to inform the accused about the grounds of arrest. A glance at the oral evidence tendered by PW3 would make it clear that he had not ventured to convince the accused about the grounds based on which he was arrested. Therefore, for the aforesaid two aspects, the arrest can only be said to be illegal as rightly contended by the learned counsel for the accused. Therefore, the dictum in **Ramankutty'** s case supra is squarely applicable in the case on hand. 10. The second contention advanced by the learned counsel for the accused was that the evidence tendered by PW1 and PW3 suffer from several discrepancies, liable to impact the prosecution case materially. As already stated PW1 and PW3 are none other than the excise officials attached to the Excise Range Office, Mavelikkara. PW3 was the Preventive Officer who had played the role of detecting and seizing officer. PW1 was another Preventive Officer, who was a member of the patrolling team engaged on patrol duty on the day along with PW3. According to PW1, the patrolling party proceeded through the road from Mooleppally junction and on the way found the accused with the contraband liquor. According to PW1 the jeep in which they were proceeding to the spot was stopped at a distance of about 300 meters away from the place where the accused was standing and they got alighted from the jeep and walked towards the place where the accused was found. But the version of PW3 was that they proceeded in the jeep itself towards the accused, reached near him, got alighted thereform and conducted the search and seizure. 11 **.** The second contradiction which was put to notice by the learned counsel was regarding the nature of the road, which according to PW1 is a gravel road, whereas in the version of PW3, a tarred road. The third discrepancy pointed out by the learned counsel was with regard to the entrustment of custody of the property seized from the spot and the accused, with PW4. According to PW1, the accused alongwith the properties have been brought to the Excise Range Office, Mavelikkara and handed over to PW4, available there on the day itself. But the claim of PW3 was that the properties seized have been kept in his safe custody for the day and handed over to PW1 on the succeeding day. According to the learned counsel, the aforesaid discrepancies being material ones are liable to shake the very foundation of the prosecution case and to defeat it. 12. PW2, an independent witness of the prosecution turned totally unloyal to the prosecution. PW1 and PW3 are official witnesses whose versions have been relied on by the prosecution to establish its case. Being officials, who had involvement in the processes of detection, search and seizure, their versions have to be scrutinised with much care and caution. When versions of officials witnesses alone are relied on by the prosecution to establish its case, the court has to be more vigilant and careful to see that their versions are consistent on material particulars and leave no room for suspicion. The case of the prosecution was that during the course of patrol duty that the offence alleged was detected. According to the prosecution, the search and seizure of the contraband was done by PW3 in the presence of members of the patrolling team. PW1 was also a Preventive Officer who was available in the team at the relevant time. Therefore, PW1 being a responsible officer empowered under the Act to act as an Abkari Officer under Section 4 of the Act depose in categoric and corroborative terms with PW3, whom he claims to have accompanied on the fateful day. Therefore, the discrepancies pointed by the learned counsel for the defence though not directly related to the search and seizure at the spot, assume relevance, being incidental to the transaction of search and seizure. PW1 and PW3 being members of the very same team, they ought not to have been inconsistent in their versions as aforesaid. With regard to the discrepant versions on safe custody of the properties after seizure from the spot, the opinion of the court below was that it would not have much impact and is not liable to defeat the prosecution case. The opinion undoubtedly is an outcome of an incorrect appreciation of evidence. As rightly contended by the learned counsel the discrepancies have a bearing on the prosecution case and by that the very presence of the officials concerned at the place of occurrence is liable to be viewed with suspicion. 13. This Court had noticed upon a perusal of the documentary evidence on record that a delay of one week was occurred for the sample to be forwarded from the court to the Chemical Examiner's Laboratory. The relevant documents, which indicate the delay are Exts.P3 and P4. Ext.P3 is the property list and Ext.P4 is the chemical analysis report. Ext.P3 was admittedly prepared by PW4, who was the investigating officer. According to PW4, after receiving the properties and the accused on 20.9.2001, immediately he registered the crime and prepared the crime and occurrence report and that is well evidenced from Ext.P2. According to him, property list and forwarding note were also prepared and the documents prepared by him and the properties seized were forwarded to the Judicial First Class Magistrate Court II, Mavelikkara on the very date itself. In the backdrop of the oral evidence adduced by PW4, the relevant documents claimed to have been sent to the court are perused. Ext.P3 is the property list. It carries an endorsement from the court to the effect “verified and received”. The endorsement is dated 20.9.2001. Therefore, the properties forwarded have been received by the Judicial First Class Magistrate Court II, Mavelikkara on 20.9.2001. Overleaf Ext.P3 another endorsement, “Submitted”. There is no sufficient space in thondy room to keep the Mos. Hence orders may be passed to keep item No.1 in Mavelikkara Range. For orders”. Underneath the endorsement it is seen that the Judicial First Class Magistrate Court had ordered to return the properties on 20.9.2001. Therefore, it seems from the aforesaid endorsement that after receiving the properties before the Magistrate Court, it was returned by the court on the very same day for the reason that sufficient space was not available in the court for keeping the same as a thondy article. Though it seems to have returned, to whom it was returned and in whose custody it was kept thereafter were not discerned from the evidence on record. Ext.P4 is the chemical analysis report dated 2.1.2002. Going by Ext.P4, it is noticed that the properties have been forwarded from the Judicial First Class Magistrate Court, Mavelikkara to the Chemical Examiner's Laboratory vide letter No.TR 234/2001 dated 20.9.2001. The properties have been reported as received by the Chemical Examiner's Laboratory from the Excise Guard namely Sadasivan Pillai on 26.9.2001 ie. on the sixth day from 20.9.2001. It is true that in Ext.P4 there is a reference that the seal on the bottle received by lab was in tact and found tallied with the sample seal provided. As already stated while returning the properties, the court had not specified the name of the person with whom it was entrusted while returning and the name of the officer who has to keep the articles in safe custody. It was returned on 20.9.2001. How come the articles have been produced before the court after its return is not revealed from the evidence on record. What is revealed from Ext.P4 was that it was sent to the Chemical Examiner's laboratory through an Excise Guard namely Sri.Sadasivan Pillai. The letter was dated 20.9.2001, but it was received on 26.9.2001. The Excise Guard namely Sadasivan Pillai was not made a witness in the final report prepared and laid by the excise officials. He was not examined before the court. Therefore, after returning the properties on 20.9.2001, who was keeping the same in custody and who had entrusted Sadasivan Pillai to take the samples to the Chemical Examiner's laboratory are not known. No evidence is available in that respect. PW4, who is the investigating officer has not stated anything with respect to the person who had kept the properties after obtaining those in return from the court. 14. In this connection the affixture of personal seal on the properties seized assumes relevance. With regard to the affixure of personal seal, PW3 has stated in the affirmative, while being examined before the court. Ext.P1 seizure mahazar also contain a description regarding the affixture of personal seal impression. But it is pertinent to note from the evidence of PW3 as well as the contents of Ext.P1 seizure mahazar that nature of the personal seal impression affixed on the properties was not stated. The forwarding note contains a column for affixture of personal seal impression. The same was meant for identification purpose when the articles seized have been received by the laboratory. It is with reference to that seal impression, that the chemical examiner has endorsed in the report that the seal on the bottle is intact and tallied with the sample seal provided. But the copy of forwarding note is not available in the documentary evidence on record. Therefore, there is total want of evidence with regard to the affixture of personal seal by PW3 on the properties seized from the spot and also on the forwarding note. Then the question comes as to how come the chemical examiner has identified the properties received by him as those seized from the spot. This creates a suspicion in the mind of the court regarding the identify of the properties forwarded to the court and the properties seized from the spot. 15. In this connection, the learned counsel for the accused has also relied on **Viswanadhan v. State of Kerala [2016(3) KHC 39],** wherein also the very same aspect was dealt with by the learned Single Judge and a dictum is laid to the effect that non-marking of forwarding note in evidence would defeat the trial of an abkari offence. 16. In view of the aforesaid discussion, it is found that the prosecution has thoroughly failed to establish the guilt against the accused for the offence under Sections 8(1) and (2) of the Act. The court below failed to advert to these material aspects while proceeding to found the accused guilty for the offence. In the said circumstances, the appeal is liable to be allowed and the judgment under challenge is liable to be reversed. In the result, the appeal stands allowed. The finding of guilt of the accused under Sections 8(1) punishable under Section 8(2) of the Act and the impugned judgment is reversed. The bail bond of the accused is cancelled and he is set at liberty forthwith. Sd/- **MARY JOSEPH Judge** ab