Alfred @ Kunjappy v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **FRIDAY, THE 07TH DAY OF DECEMBER 2018/16TH AGRAHAYANA, 1940** **CRL.A.No.1327 of 2005** **JUDGMENT IN SC 730/2000 of the ADDL.SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA DATED 23-07-2005** **-----------------** ## **- APPELLANT/ACCUSED :** **ALFRED @ KUNJAPPY, AGED 50, S/O.RAJAYYAN, KAPPIKADA, ATTARIKATHU VEEDU, MUNCHAMCODE, CHEMPOOR DESOM, KEEZHAROOR VILLAGE.** **BY ADV. SRI.VPK.PANICKER** ## **- RESPONDENT/COMPLAINANT :** **THE STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.SANTHOSH PETER - PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.1327/2005 -: 2 :- ## **JUDGMENT** The appellant herein challenges the conviction and sentence against him under Sections 55(a) and (i) of the Kerala Abkari Act ('the Act' for short) in S.C.730/2000 of the Court of Session, Thiruvananthapuram. He faced trial before the learned Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara on the allegation that at about 5.25 p.m. on 23.2.1999, he was found possessing 4 litres of arrack in a plastic can of 5 litres capacity, and another quantity of 15 litres of arrack in a plastic can of 20 litres capacity at Vellarada. The offence was detected by the Sub Inspector of Police, Vellarada. He arrested the accused on the spot, and seized the contraband articles as per a mahazar. On the basis of the arrest and seizure, he registered the crime, he himself conducted investigation, and he submitted final report in court. CRL.A.No.1327/2005 -: 3 :- 2. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Sections 55(a) and (i) of the Act. Instead of framing charge under Section 8(2) of the Act on the allegation of possession of arrack, the trial court wrongly framed charge under Section 55(a) of the Act. Any way, if the conviction is confirmed, the Section can be altered by this Court. 3. The prosecution examined six witnesses, and proved Exts.P1 to P5 documents in the trial court. The MO1 to MO3 properties were also identified during trial. When examined under Section 313 Cr.P.C., he denied the incriminating circumstances. He did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.1,00,000/-. Aggrieved by the judgment of conviction dated 23.7.2005, the accused has come up in appeal. CRL.A.No.1327/2005 -: 4 :- 4. On hearing both sides, and on a perusal of the materials, I find some legal infirmities affecting the prosecution case. Everything was done by the Sub Inspector in this case. He detected the offence, and he himself investigated the case. The legal position now stands settled by the Hon'ble Supreme Court in **Mohanlal** v. **The State of Punjab** [2018 (3) KLT 852] that when the detecting officer is the material witness to prove the factual aspects, he cannot investigate the case, and if investigation is done by the witness himself, it would vitiate the whole prosecution. 5. Of the six witnesses examined in the trial court, PW3 is the Sub Inspector, who detected the offence, PW4 and PW5 are the police constables, who assisted him, and PW6 is the court staff, who claimed to have taken sample. PW1 and PW2 examined as independent witnesses turned hostile. PW3 to PW5 have given evidence regarding the arrest of the accused and the seizure of two plastic cans, CRL.A.No.1327/2005 -: 5 :- allegedly containing arrack. The crucial question is whether the liquid contained in these two plastic cans is identified as arrack as the prosecution would allege. 6. 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. No such forwarding note is seen produced or proved in this case. It is not known what seal was affixed on the sample by PW3. He has not stated anything about the seal affixed by him on the properties. Of course, evidence shows that sample was collected at the court by PW6. But, it is not known, whether seal was affixed by PW6 or PW3. Any way, there is nothing to identify the sample produced in court as the one seized from the hands of the accused, or as the one collected from the MO1 and MO2 properties allegedly seized from the hands of the accused. This is a very serious factual infirmity, the benefit of which must go to the accused. In the absence of anything to identify CRL.A.No.1327/2005 -: 6 :- the sample, the report of analysis relating to the sample cannot bind the accused. 7. As already stated, everything in this case was done by the Sub Inspector. He arrested the accused, he seized the contraband articles as per a mahazar, he registered the crime, he himself investigated the case, and also submitted final report in court. There is no doubt at all that such a one man show made by the Sub Inspector would definitely cause prejudice to the accused in view of the evidence given by PW6 that sample was unauthorisedly collected by her. Whether prejudice is caused or not, the decision of the Hon'ble Supreme Court cited _supra_ will have to be applied. 8. PW6 is the court staff, who claimed to have collected the sample. PW3 has no case that he had taken sample from the contraband articles at the spot of detection. His evidence shows that he had the investigation kit with him. If he had the investigation kit with him, there is no explanation why he did not collect sample at the spot of CRL.A.No.1327/2005 -: 7 :- detection, or why he left it to be unauthorisedly done or taken by the court staff. PW6 claimed to have taken sample as authorised by the learned Magistrate, before whom the properties were produced. There is nothing to show that she was so authorised by the learned Magistrate. She stated in court that the authorisation given to her was recorded by the learned Magistrate in the copy of the forwarding note. Such a forwarding note is not seen produced or proved. There is nothing to show that PW6 was at any time authorised by the learned Magistrate to collect sample from the properties produced in court. The evidence of PW3 is that the properties were produced in court in sealed condition. During trial, the MO2 can was seen tampered with. No value can be attached to the report of analysis in such a circumstance, and such a report will not in any manner bind the accused also. 9. As discussed above in foregoing paragraphs, I find that there are very serious infirmities and CRL.A.No.1327/2005 -: 8 :- illegalities in this case, vitiating the whole prosecution case, and the benefit of all these must go to the accused by way of acquittal. In the result, the appeal is allowed. The appellant is found not guilty of the offence under Sections 55(a) and (i) of the Act, and he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against him in S.C.No.730/2000 of the court below will stand set aside, and the accused will stand released from prosecution. **Sd/P.UBAID JUDGE** _//TRUE COPY//_ _P.A. TO JUDGE_ Jvt/11.12.2018