Anandan @ Unni v. State of Kerala

Crl.A.No.2087/2006 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943_ ## _CRL.A NO. 2087 OF 2006_ _AGAINST THE ORDER/JUDGMENT IN SC 370/2004 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA CP 24/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,_ ## _ALAPPUZHA_ ## _APPELLANT/ACCUSED:_ _ANANDAN @ UNNI, AGED 44 YEARS, S/O.PANICKER, VADAKKETHAYIL VEEDU, WARD NO.II, MANNANCHERRY PANCHAYATH._ _BY ADVS. SRI.G.PRIYADARSAN THAMPI SMT.VEENA KRISHNAN_ ## _RESPONDENT/COMPLAINANT/STATE:_ _STATE OF KERALA, REPRESENTING CIRCLE INSPECTOR OF POLICE, ALAPPUZHA NORTH POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ _ADV. RANJIT GEORGE – SR.PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ Crl.A.No.2087/2006 2 ## **JUDGMENT** The appellant is the sole accused in S.C.No.370 of 2004 on the file of Addl.Sessions (Fast Track) Court-II, Alappuzha. The aforesaid case arises from Crime No.451 of 2001 of Alappuzha North Police Station. The said crime was registered against the appellant herein for the offences punishable under Section 55 (g) and (i) of the Abkari Act. 2. The prosecution case against the appellant is that on 29.08.2001 at 4.30 pm, when the police party inspected the house of the appellant, he was found keeping two litres of arrack in a kannas and 30 litres of wash in another kannas along with certain utensils for manufacturing of arrack. Immediately, the appellant was arrested and the articles were seized. Upon completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court – I, Alappuzha, where it was taken into the file as C.P.No.24 of 2004. After completing the legal formalities, the matter was committed to the Sessions Court, Alappuzha. Later, the same was made over to the Additional Sessions Court II, Alappuzha, where it was tried as S.C.No.370 of 2004. Crl.A.No.2087/2006 3 3. To substantiate the prosecution case, PW1 to PW6 were examined, Exts.P1 to P8 were marked, and material objects 1 to 8 were identified. 4. After completion of prosecution evidence, the appellant was examined under Section 313 of the Cr.P.C., and the incriminating materials brought out during the trial were put to him. He denied the same and pleaded innocence. As defence evidence, DW1 and DW2 were examined. 5. After examining the materials available on record, the learned Sessions Judge concluded that the appellant is guilty of the offences punishable under Section 55 (g) and (i)of the Kerala Abkari Act. Accordingly, he was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- with a default sentence of simple imprisonment for two months under section 55(g) and to undergo simple imprisonment for one year and to pay a fine of Rs 1,00,000/with a default sentence of two months. It was ordered that the sentences shall run concurrently. This appeal is filed challenging the aforesaid order of conviction and sentence. Crl.A.No.2087/2006 4 6. Heard Sri.G.Priyadarshan Thampi, learned counsel for the petitioner and Sri.Ranjit George, learned Public Prosecutor for the state. 7. The specific contention of the learned counsel for the appellant is that the prosecution failed to establish the guilt of the accused. It is contended that even though the seizure was allegedly affected from the residence of the appellant herein, the prosecution failed to prove that the ownership of the said building is vested with the appellant herein. It is also contended that even though the ownership certificate which stands in the name of the appellant herein was marked as Ext.P6, the same was not proved by examining the Secretary of the local self government institution, who had issued the same. It is also contended that Ext.P2 mahazar does not contain an impression of the seal or description of the seal, which is claimed to have been affixed on the articles, as well as the sample drawn from the liquor, at the time of seizure. Another contention is that, the forwarding note evidencing the forwarding of the sample for chemical analysis is not seen marked. It is the specific case of the learned counsel for the Crl.A.No.2087/2006 5 appellant that, in the absence of the forwarding note as well as the impression of the sample seal/description thereof in the mahazar, it cannot be concluded that the sample which was subjected to chemical analysis had reached the chemical lab in a tamper proof condition. In such circumstances, the learned counsel for the appellant seeks for interference in the order of conviction passed by the learned Sessions Judge. 8. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention. According to him, the evidence of official witnesses coupled with the contemporaneous documents such as search memo, seizure mahazar and arrest memo etc., are sufficient to establish the guilt of the accused, and no interference is warranted. In such circumstances, the learned Public Prosecutor seeks for dismissal of the appeal. 9. When I examine the materials available on record, it can be seen that the prosecution mainly relies upon the PW1 detecting officer, PW2 Constable who accompanied PW1 to the place of occurrence, PW5 Circle Inspector of Police who conducted an investigation and submitted the charge sheet, and Crl.A.No.2087/2006 6 PW6 who led the investigation at the preliminary stage. On examining the evidence of PW1, it can be seen that according to him, on 29.08.2001, he got an information that the accused was manufacturing arrack in his house and immediately he went to the place of occurrence. Ext.P1 is the Search Memo. During the course of such investigation, the appellant was personally present and detected the contraband articles mentioned above. Immediately, he was arrested, and the articles were seized. Evidence of PW2 is also in tune with the evidence of PW1. PW3 and PW4 are the independent witnesses who attested the mahazar. Both of them have turned hostile to the prosecution case. 10. Ext.P2 is the mahazar prepared at the time of inspection. On perusal of the same, it can be seen that even though the articles were seized and the seals were affixed thereon, the impression of the seal claimed to have been affixed on the articles is not seen affixed on the mahazar. The description of the same is also not seen specified in the said mahazar. In **Moothedath Sivadasan v. State of Kerala [2010 (3) KLT 471]** , this Court has specifically observed the Crl.A.No.2087/2006 7 necessity to have the impression of the seal on the mahazar or the description of the same therein. It was observed that, the absence of such impression or description of the seal is a serious lapse on the part of the prosecution in discharging the burden to prove the tamper proof condition of the articles seized. 11. In addition to the above, it is also evident from the records that the prosecution failed to mark the forwarding note in evidence. The forwarding note is a crucial document by which the sample which was drawn from the articles seized from the possession of the accused is forwarded for chemical analysis. The forwarding note is expected to contain the impression of the seal affixed on the sample and the chemical analyst is supposed to compare the sample seal with the seal affixed on the sample. In the absence of marking of forwarding note, it cannot be safely concluded that the prosecution has made available the very same sample seal before the chemical analyst. In **Rani v. State-S.I of Police, Meppad [2018 (5) KHC 352]** and **Smithesh v. State of Kerala [2019 (2) KLT 974]** , this Court has considered this question, and it was held Crl.A.No.2087/2006 8 that the failure in marking the forwarding note in evidence is a crucial lacuna in the prosecution case and the absence of the same would lead to the conclusion that the prosecution failed to establish the tamper proof condition of the sample made available for chemical analysis. In such circumstances, it is yet another aspect which goes against the prosecution in this case. 12. Another crucial contention put forward by the learned counsel for the appellant is about the failure on the part of the prosecution to establish the ownership and possession over the building from which the articles were allegedly seized. In this case, even though Ext.P6 ownership certificate was produced, the same was marked through PW5 Investigating Officer. Conspicuously, the officer who executed the aforesaid document, namely the Secretary of the Mannanchery Grama Panchayath, is not examined by the prosecution. In the absence of his examination, it can be concluded that Ext.P6 is not proved properly. Therefore, no reliance can be placed upon the same. 13. Another lacuna in the prosecution case is regarding the nature of the arrest. Ext.P3 is the arrest memo. In Ext.P3 Crl.A.No.2087/2006 9 arrest memo, the time and date of arrest are shown as 29.08.2001 at 16.30 hours. In Ext.P5 FIR, it is seen that the crime was registered on the same day at 18.30 hours. The case of the prosecution is that the arrest was effected from the residence of the appellant, and the arrest memo was prepared simultaneously along whith the arrest. However, Ext.P3 arrest memo would indicate that the same contains the Crime Number of the case. In **Rafeeque v. Sub Inspector of Police, Kunnamkulam Police station and Another [2020 (4) KLT** **188], t** his Court considered the aforesaid aspect and held that the inclusion of crime number in the arrest memo causes a serious doubt on the prosecution case. The relevant observation in this regard is as follows: ".“21. Presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information report was inserted in the arrest memo after its registration. In both Crl.A.No.2087/2006 10 situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution (See Zofar v. State : 2000 Cri.L.J 1589, Kailash @ Kuddu v. State : 2000 Cri.L.J 2134 and Karunakar Bindhani v. State of Kerala : 2017 (1) KLD 48). When it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution (See Shyam Bharia v. State of Madhya Pradesh:2005 Cri.L.J 1907). It creates doubt as to the manner in which seizure of the contraband substance and the arrest of the accused were affected by the police officers (See K. Kalyani v. State: MANU/TN/1070/2019)” 14. In such circumstances, it is yet another aspect which adversely affects the prosecution case. 15. Thus, when all the aforesaid aspects are taken into consideration, it would lead to the irresistible conclusion that the prosecution failed to establish the case as against the Crl.A.No.2087/2006 11 appellant herein. In such circumstances, the finding of the learned Sessions Judge that the appellant is guilty of the offence is liable to be interfered with. In the result, this appeal is allowed and the judgment dated 03.10.2006 in S.C.No.370/2004, passed by the Addl. Sessions Court-II (Fast Track), Alappuzha is hereby set aside. The appellant is found not guilty, and he is acquitted of all the charges. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/15.3.22