Aitha v. State of Kerala (Criminal Appeal No. 162 of 2011)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941** ## **CRL.A.No.162 of 2011** **AGAINST THE JUDGMENT IN SC 602/2007 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-III), KASARAGODE** **APPELLANT/ACCUSED:** **AITHA, AGED 66 YEARS, SHALABAH HOUSE, CHIPPAR VILLAGE, KASARGOD TALUK & DISTRICT.** ## **BY ADV. SRI.SURESH KUMAR KODOTH** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA STATION HOUSE OFFICER, MANJESWARAM POLICE STATION,, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR** ## **SRI B JAYASURYA-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.162 of 2011** **2** ## **JUDGMENT** The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act (for short “the Act”) in S.C. No. 602 of 2007 of the Court of Session, Kasaragod. He faced trial before the learned Additional Sessions Judge (Adhoc-III), Kasaragod, on the allegation that at about 8.00 p.m. on 26.09.2006, at Chippar, within the limits of the Manjeshwaram Police Station, he was found carrying arrack contained in 180 packets of 100 ml capacity brought from the State of Karnataka. The offence was detected by the Sub Inspector of Police, Manjeshwaram, during his patrol duty. He arrested the accused on the spot, and seized the arrack packets as per a mahazar. The Sub Inspector himself registered the crime, he conducted investigation, and also submitted final report in court under Section 55(a) of the Act. The packets of arrack containing the remaining quantity, after taking samples, were produced before the Assistant Excise Commissioner, **CRL.A.No.162 of 2011** **3** Kasaragod, as the authorised officer. 2. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Section 8(2) of the Act. Though final report was filed under Section 55(a) of the Act, charge was properly framed by the trial court under Section 8(2) of the Act. The prosecution examined four witnesses and proved Exts.P1 to P8 documents in the trial court. As the material objects had already been produced before the Assistant Excise Commissioner, there was no property to be identified during trial. 3. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.. He did not adduce any evidence in defence. 4. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction ## **CRL.A.No.162 of 2011** ## **4** dated 29.01.2011, the accused has come up in appeal. 5. On hearing both sides, and on a perusal of the materials, I find that there are serious infirmities in this case, vitiating the prosecution, and the benefit of these must go to the accused by way of acquittal. 6. Of the four witnesses examined in the trial court, PW2 is the Sub Inspector who detected the offence. Everything including investigation was done by him. Of course, there is nothing wrong, but it will have to be examined whether any serious prejudice was caused to the accused by the one man show made by the Sub Inspector. Being a pending case, the dictum laid down by the Honourable Supreme Court in **Mohan Lal** v. **State of Punjab** (AIR 2018 Supreme Court 3853), is not applicable. 7. PW1 is the Police Constable who assisted the Sub Inspector in the process of detection, and PW3 is an attestor to the detection mahazar. PW4 **CRL.A.No.162 of 2011** **5** is only an attestor to the Ext.P5 scene mahazar. PW3 stated that he had seen the Sub Inspector taking samples of arrack, and he had also seen the accused there, but when he stated that he had not actually seen the police seizing arrack from the possession of the accused, he was declared hostile by the learned Public Prosecutor with the permission of the court. The evidence given by PW3 in cross examination would reveal that he had in fact witnessed the seizure and the arrest of the accused. PW2 and PW1 have given evidence regarding the arrest of the accused, and the seizure of 180 packets of arrack from his possession. The evidence of PW2 is that the liquid contained in six packets was taken as samples in two bottles, and the sample bottles were well packed and sealed. The crucial question is whether the samples were identified as arrack as the prosecution would allege. As regards the arrest and seizure, the evidence of PW2 and PW1 is alright, but the other important aspects will have to be discussed to find **CRL.A.No.162 of 2011** ## **6** whether this is a clear prosecution without any blemish or infirmity. 8. This Court has settled that the copy of the forwarding note produced in court must be proved in evidence, and it must contain the specimen of the seal affixed on the sample by the detecting officer. The Ext.P4 copy of the forwarding note contains some seal, but it is not known what seal it is. Just below the specimen there is the court's seal. The evidence of PW2 is that he had affixed the “SHO” seal on the samples. Anyway, what he is required to affix is his personal seal and not the Station House Officer's seal. Every Police Station will have “SHO” seal, and so by such seal, no sample can be identified. Thus, I find that there is nothing in this case to identify the sample produced in this case as the samples collected from the accused or taken from the packets seized from the possession of the accused. This is a very serious infirmity and on this ground itself, the accused is entitled for **CRL.A.No.162 of 2011** **7** acquittal. 9. The law under Section 53A of the Act is that when an offence is detected and some contraband articles are seized, the detecting officer shall produce the articles before the authorised officer appointed by the Government, and once such properties are produced, the authorised officer shall prepare an inventory of the articles, take a photograph of the articles, and get the photograph and the inventory certified by the Magistrate having jurisdiction over the area. Ext.P6 is said to be the inventory in this case. This is an inventory prepared by the Sub Inspector of Police and not the inventory prepared by the Assistant Commissioner of Excise. At the bottom of the inventory, the signature of the Assistant Commissioner of Excise is seen. It appears that he has only countersigned the inventory. This is not his function as authorised officer under the law. The inventory must be prepared and signed by the authorised officer. The Sub Inspector of Police **CRL.A.No.162 of 2011** **8** has no authority at all to prepare an inventory or to act as an authorised officer. This is an illegality vitiating the prosecution. I find that there is no proper and legal inventory in this case. The sanctity of the inventory prepared by the authorised officer is that even without examining the authorised officer, the inventory can be admitted in evidence and also read in evidence if it is a proper inventory prepared by the competent officer and certified by the Magistrate. The Ext.P6 inventory is seen prepared by the Sub Inspector of Police on 27.09.2006. But it is seen certified by the Magistrate only on 19.3.2007. The seal of the Magistrate shows that some samples were taken. PW2 has also stated that while preparing inventory some samples were taken. It is not known why such samples were taken as part of inventory, and if at all such samples were taken, there is no explanation what happened to the samples or where it is produced. **9** ## **CRL.A.No.162 of 2011** In the result, this appeal is allowed. The appellant is found not guilty of the offence under Section 8(2) of the Act and accordingly, She is acquitted in appeal under Section 386(b)(i) of the Cr.P.C. The conviction and sentence against her in S.C 602/2007 of the court below will stand set aside. The appellant is released from prosecution, and the bail bond, if any, executed by her will stand discharged. **Sd/-** **P.UBAID** ds/ma /True copy/ **JUDGE** P.S to Judge