Ananda B. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 20TH DAY OF FEBRUARY 2013/1ST PHALGUNA 1934** **CRL.A.No. 2047 of 2003 ( ) --------------------------** **SC.539/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD DATED 03-12-2003** **APPELLANT/ACCUSED):** **-------------------** **ANANDA B., S/O.RAMA, BELA HOSUE, KULUR VILLAGE, KASARAGOD TALUK.** **BY ADVS.SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR** **RESPONDENT/COMPLAINANT:** **------------------------** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.2047 of 2003 ------------------------------Dated this the 20[th] day of February, 2013.** ## **J U D G M E N T** The accused in S.C.No.539 of 2000 on the file of the court of Additional Sessions Judge (Ad hoc)-I, Kasaragod, is the appellant. He preferred this appeal challenging the judgment dated 3.12.2003 of the said court by which he is convicted and sentenced for the offence under section 55(a) of the Abkari Act. 2. The prosecution case is that, on 28.12.1998 at 8.15 p.m., the accused was found in possession of 44 bottles of Boss whisky each of 180 ml. capacity near the bus waiting shed at Manjeshwer against the provisions of Kerala Abkari Act. The appellant/accused was arrested alleging offence under section 55(a) of the Abkari Act, by the Sub Inspector of police, Manjeshwer police station. Consequently crime No.343 of 1998 of Manjeshwer police 2 ## **Crl.A.No.2047 of 2003** station was registered against the accused and after investigation, report was filed, on the basis of which S.C.No.539 of 2000 was instituted in the Sessions court, which finally transferred to the present trial court for trial and disposal. On the appearance of the accused, after hearing the prosecution as well as the defence, a formal charge was framed against the accused, which when read over and explained to the accused, he denied the same and pleaded not guilty. Thus, the trial gone to the next stage. During the trial of the case, Pws.1 and 2 were examined and Exts.P1 to P5 were marked. By judgment dated 3.12.2003 in S.C.No.539 of 2000 of the court of Additional Sessions Judge (Ad hoc)-I, Kasaragod, the accused therein is convicted for the offence under section 55(a) of the Abkari Act. On such conviction, the appellant is sentenced to undergo rigorous imprisonment for 3½ years and sentenced to pay a fine of `1 lakh and in default, he is directed to undergo rigorous imprisonment for 3 months. It is the 3 ## **Crl.A.No.2047 of 2003** above conviction and sentence challenged in this appeal. 3. I have heard Adv.Sri.Kodoth Pushparajan, learned counsel for the appellant and the learned Public Prosecutor. 4. To prove the prosecution allegation, the prosecution very much depends upon the evidence of PW2-the then Sub Inspector of police, Manjeshwer police station, who detected the crime, effected the seizure and arrest of the accused, and who conducted the investigation. Beside the above oral evidence of PW2, the prosecution has also depends upon the documentary evidence consists of Exts.P1 to P5 documents. When PW1-the sole independent witness who is an attestor to Ext.P1 seizure mahazar examined, he turned hostile to the prosecution though he has admitted his signature in Ext.P1. 5. PW2 is the then Sub Inspector of police of Manjeshwer police station. When he was examined, he had deposed that while himself and party conducted law and order duty on 28.12.1998 at 8.15 p.m., he along with party 4 ## **Crl.A.No.2047 of 2003** reached Manjeshwer bus stand and the accused was found standing near the bus waiting shed with two plastic bags in his hands. According to PW2, on inspection of the same, he found that the bag contains contraband article. According to him, on his assumption that contraband article was brought from Karnataka for the purpose of sale in Kerala, he arrested the accused and seized the contraband article and thereafter they reached the police station and accordingly crime was registered. Thus when PW2 was examined, Ext.P1 seizure mahazar, Ext.P2 FIR, Ext.P3 scene mahazar, Ext.P4 forwarding note and Ext.P5 chemical analysis report were marked through him. On the basis of the above evidence and materials, the trial court convicted the appellant for the offence under section 55(a) of the Abkari Act. 6. Learned counsel for the appellant strenuously submitted that no sample is taken from the contraband article allegedly seized from the possession of the appellant 5 ## **Crl.A.No.2047 of 2003** and there is enormous delay in producing the contraband article before the court below, which is not explained by PW2 to the satisfaction of the court. It is also the contention of the counsel that there is no evidence to show as to who was the custodian of the contraband article after its alleged seizure on 28.12.1998 and till the same was produced before the court on 4.1.1999. So according to the learned counsel, in the light of the decision of this Court reported in **Ravi v. State of Kerala (2011(3) KLT 353)** and **Lakshmy v. State of Kerala (2012(4) KLT SN93 (C.No.82)** , the appellant is entitled to get an acquittal. 7. On the other hand, learned Public Prosecutor submitted that the evidence of PW2 clearly points towards the guilt of the accused and there is nothing brought on record to disbelieve his evidence and therefore even though PW1 turned hostile, the same will not adversely affect the prosecution as such, particularly when PW1 has deposed that he had seen the incident and he had admitted his 6 ## **Crl.A.No.2047 of 2003** signature in Ext.P1. Therefore, the learned Public Prosecutor submitted that no interference is warranted with respect to the findings of the court below and the order of conviction and sentence. 8. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor. I have also scrutinised the evidence and materials on record and perused the judgment of the trial court. 9. In the light of the rival pleadings and in view of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence punishable under section 55(a) of the Abkari Act, in the light of the facts and circumstances involved in the case. 10. At the outset, it has to be noted that the charge framed against the appellant/accused is under section 55(a) of the Abkari Act, which reads as follows : 7 **Crl.A.No.2047 of 2003** “ **For illegal import, etc.** - Whoever in contravention of this Act or of any rule or order made under this Act (a) imports, exports, [transports, transits or possesses] liquor or any intoxicating drug ; or xxxxxxxxxx shall be punished. A Division Bench of this Court in a decision reported in **Mohanan v. State of Kerala [2007(1) KHC 752]** has held that, “The words **'** transports, transits or possess **'** coming after the words 'imports or exports' in Section 55(a) has to be read in ejusdem generis to the words **'** imports or exports **'** - Section 55(a) is not applicable to all kinds of transportation of liquor - Is applicable for illegal import or transport or in possession while importing.” In this case, PW2 has no specific and definitive case that the appellant was arrested and the contraband article was seized, while importing the same from Karnataka to Kerala. In the chief examination, what PW2 stated is that, “പ�ത� 2 plastic സഞ�കള�മ�യ� ന�ല���നത� കണ� സ�ശയ� തത�ന� തടഞ� ന�ര��. സഞ�കള �ര�തശ�ധ�ച�. 180 ML-ന! 44 ക�പ� Boss Whisky 8 ## **Crl.A.No.2047 of 2003** ക�ണനപട�.” PW2, the Detecting Officer has no case apart from mere possession of the contraband article by the accused and that the possession was connected with importing contraband article from Karnataka to Kerala. Further it is relevant to note that during the cross examination of PW2, he has stated that, “പ�ത� കര%�ടകയ�ല ന�ന�ണ� മദ(� വ�ങ�യത� എന� �റഞ�ര�ന�.” So, there is no assertion from the part of PW2 that this contraband article was purchased by the accused from Karnataka and transported to Kerala and at that point of time, the appellant was arrested. Thus, regarding the exact source of the contraband article, PW2 has not conducted any investigation and there is no evidence at all. In Ext.P1 seizure mahazar, what recorded by PW2 is that, “ ആയത� അനധ�ക/തമ�യ� കര%�ടക��ല ന�ന�� തകരള��തല�� വ�ല��ന��യ� കട��ന��ണ� വനത�നണന�ള ഉ�മവ�ശ2�സ��ല .......” So, from the side of the Investigating and Detecting Officer, there is no positive evidence or assertion that the appellant has 9 ## **Crl.A.No.2047 of 2003** transported or imported the contraband article from Karnataka to Kerala. Recently, another Division Bench of this Court in the decision reported in **Josekutty Vs. State of Kerala (2013(1) KLJ 479)** has held that, section 55(a) of the Abkari Act would be applicable only when a person is found to be in possession of liquor in the course of import, export, transport or transit of the goods. 11. In this juncture it is pertinent to note that, even in the court charge, there is nothing to show that the accused was found transporting or importing the contraband article from outside Kerala. It is stated in the court charge that, “............. രണ� സഞ�കള�ല�യ� 180 ML വ3ത� നക�ള�ന Boss Whisky for sale in Karnataka എന തലബനല�ട�ചത�മ�യ 44 ക�പ� ഇന(ന ന�ര8�ത വ�തദശ മദ(� കകവശ� നവചത�യ� നപ��സ�ക(:ഷന ഭ�ഗ�� ന�ന� ഹ�ജര���യ തരഖകള�ല ന�ന�� പ��ര�ഭവ�ദ� തകടത�ല ന�ന�� പ�ഥമദ/ഷ(� നവള�വ�യ�ര���ന�.” So, the evidence on record and the court charge thus does not shows that the contraband article which is alleged to have been seized from the possession of 10 ## **Crl.A.No.2047 of 2003** the appellant was the same transported or imported from outside the State of Kerala to this State. So, according to me, the prosecution has miserably failed to show that the accused has committed an offence punishable under section 55(a) of the Abkari Act in the given facts and circumstances involved in the case, especially in the light of the decision of the Division Bench of this Court reported in **Mohanan v. State of Kerala [2007(1) KHC 752]** and **Josekutty Vs. State of Kerala (2013(1) KLJ 479)** . 12. Learned counsel for the appellant strenuously submitted that in producing the contraband article before the court below, there is culpable negligence and delay and that delay is not explained to the satisfaction of the court and therefore in the light of the decision of this Court reported in **Ravi v. State of Kerala (2011(3) KLT 353)** , the appellant is entitled to get an acquittal. Let us examine the facts and circumstances involved in the case in the light of the dictum laid down by the Division Bench of this Court 11 ## **Crl.A.No.2047 of 2003** in the above decision. First of all, it is relevant to note that no property list is produced in the present case. As per the prosecution allegation, the contraband articles were seized from the possession of the appellant at 8.50 p.m. on 28.12.1998. PW2 during his chief examination deposed before the court that the articles were produced before the court on 4.1.1999 and there is a delay of 7 days. Absolutely there is no explanation from the side of PW2, as to why that much time was taken to produce the contraband article. It is also relevant to note that there is no whisper in the deposition of PW2 as to who was the custodian of the contraband article till the same produced before the court on 4.1.1999 after its seizure on 28.12.1998 and what was the safety measures adopted to keep the contraband article intact. According to me, the absence of any explanation from the side of PW2 with respect to the delay and about the safe custody of the contraband article, assume importance in the present case, solely for the reason that no 12 ## **Crl.A.No.2047 of 2003** separate samples are drawn from the contraband articles allegedly seized from the possession of the appellant. Even according to PW2, though he had found 44 bottles in two plastic bags held by the appellant, he had opened two bottles and realised that the contents of those bottles as whisky by smelling and tasting. Suffice to say, no samples are drawn from that opened bottles. But according to PW2 and as per the prosecution records, out of the remaining 42 bottles, two bottles were taken as samples. It is the above two samples and the remaining bottles reached in the court after seven days. Though on the bottles it is shown that the same are meant for sale in Karnataka, according to me, in the absence of any positive evidence to the effect that such bottles are not available in the locality, especially when the territorial jurisdiction of Manjeshwer police station is lying adjacent to Karnataka, it cannot be said that the samples that were subjected to chemical analysis as per Ext.P5 chemical analysis report, were the one which seized from 13 ## **Crl.A.No.2047 of 2003** the possession of the appellant. So according to me, the prosecution has miserably failed to withstand the test laid down by this Court in the decision reported in **Ravi v. State of Kerala (2011(3) KLT 353)** to show that samples reached in the hands of the chemical analyst were in fool proof condition right from the alleged seizure of the contraband article from the appellant on 28.12.1998. So the facts and circumstances and evidence on record, particularly with respect to the seizure as well as the chemical analysis of the contraband article are not free from doubt, more specifically when the prosecution has offered no explanation for the delay. Therefore, the benefit of doubt goes in favour of the appellant. But in the present case, the trial court has miserably failed to consider those aspects and extending the benefit of doubt in favour of the accused. Therefore, I am unable to sustain the conviction recorded by the trial court against the appellant/accused. Hence, the order of conviction of the appellant for the 14 ## **Crl.A.No.2047 of 2003** offence under section 55(a) of the Abkari Act is set aside. In the result, this appeal is allowed setting aside the judgment dated 3.12.2003 of the court of Additional Sessions Judge (Ad hoc)-I, Kasaragod, and the appellant is acquitted of all the charges levelled against him and the bail bond if any executed by the appellant is stand cancelled and accordingly he is set at liberty. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge