Anil Kumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 15TH DAY OF JANUARY 2014/25TH POUSHA, 1935 CRL.A.No. 1360 of 2003 ------------------------ [AGAINST THE JUDGMENT IN SC 1780/2002 of court of III ADDL SESSIONS JUDGE, KOLLAM DATED 31-07-2003] [AGAINST THE JUDGMENT IN CP 5/2001 of J.M.F.C., PARAVOOR] APPELLANT(S/ACCUSED: -------------------ANIL KUMAR, S/O.SREEDHARAN, POLKA VILA VEEDU, KAITHAKKUZHY CHERRY, ADICHANELLOOR VILLAGE, KOLLAM TALUK. BY ADV. SRI.V.VENUGOPALAN NAIR RESPONDENT(S)/COMPLAINANT: ---------------------------STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, CHATHANNOOR, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANKULAM BY PUBLIC PROSECUTOR SRI.N.SURESH. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 1360 of 2003** ## **---------------------------------------Dated this the 15[th] day of January,2014** ## **J U D G M E N T** The challenge in the above appeal is against the judgment dated 31.7.2003 in S.C.No.1780 of 2002 of the court of Sessions, Kollam, whereby the appellant who is the sole accused in the above sessions case stands convicted and sentenced under Section 55(a) of the Abkari Act. 2. The prosecution allegation is that on 10.12.1997, at 12.30 p.m., the Preventive Officer of Excise Range Office, Chathannoor and patrol party found the accused in possession of 60 polythene covers of arrack each having the capacity of 200 ml., which contain 150 ml. each of arrack kept for sale, 50 metres east of I.C.D.S.Project- Anganwadi near Velichikkala Elavummoodu, Velichikkala Cherri in Pallimon Village and thus, the accused has committed the offence punishable under Section 55(a) of the Abkari Act. CRL.A.No. 1360 of 2003 :-2 -: 3. On the above allegation, Crime No.71/97 was registered in the Chathannoor Excise Range for the offence punishable under Section 55(a) of the Abkari Act. On completing the investigation, the report was laid in the Judicial First Class Magistrate Court, Paravoor. Accordingly,C.P.No.5 of 2001 was instituted and subsequently, the learned Magistrate committed the case to the Sessions Court and thus S.C.No.1780 of 2002 is instituted. When the accused appeared, a formal charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act and when the said charge was read over and explained to the accused, he denied the same and pleaded not guilty and thus, the prosecution adduced its evidence by examining PWs.1 to 6 and producing Exts.P1 to P5 documents. The trial court on conclusion of the trial found that the Excise Patrol party found the accused in possession of the contraband article and they had conducted the seizure and sampling in a proper manner and thus, concluded that the accused had committed the offence punishable CRL.A.No. 1360 of 2003 **==> picture [25 x 9] intentionally omitted <==** under Section 55(a) of the Abkari Act. On such conviction, the accused is sentenced to undergo rigorous imprisonment for five years and also directed him to pay fine of Rs.1 lakh and in default, he is directed to undergo simple imprisonment for a further period of one year. Set off is allowed. It is the above finding and order of conviction and sentence are challenged in this appeal. 4. I have heard Sri.Venugopalan Nair, appearing for the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State. 5. Though the prosecution has examined altogether six witnesses, out of which Pws.3 and 4 are independent witnesses, but they turned hostile towards the prosecution, though they were cited and examined to prove the arrest of the accused as well as the seizure of the contraband article from his possession. Pws.1 and 2 are the two Excise Officials involved in the detection of the crime, seizure of the contraband article and arrest of the accused. When Pws.1 and 2 were CRL.A.No. 1360 of 2003 **==> picture [25 x 9] intentionally omitted <==** examined, they deposed strictly in terms of the prosecution allegation and according to them, on 10.12.1997 they were on patrol duty and while they were conducting patrol duty, they reached at Vellichikkala Elavumoodu Junction in Pallimon village and thereafter, they proceeded towards the ICDS Project- Anganwadi and thus, when they reached in front of the Anganwadi, they saw the accused coming from the opposite direction, carrying a plastic bag and on seeing the patrol party, the accused tried to escape from the spot, but he was intercepted and in the presence of independent witnesses , MO1 bag was opened and they saw some plastic covers containing liquid, in the said gunny bag. According to Pws.1 and 2, on questioning the accused, he had admitted that he brought the packet of arrack for sale. It is the further case of Pws.1 and 2 that PW1 took two packets from MO1 gunny bag and poured the contents into a 375 ml.bottle and from that bottle, PW1 took some liquid and by tasting and smelling, he identified the liquid as arrack. So, according to PWs. 1 and 2, the accused was CRL.A.No. 1360 of 2003 **==> picture [25 x 9] intentionally omitted <==** arrested from the spot itself and the contraband article and the material objects were seized and the sample was drawn. According to Pws.1 and 2, altogether there were 60 covers of arrack and after taking the sample, the balance 58 covers were kept in the sack and the empty packet, after having drawn the sample, also put inside MO1 gunny bag and labelled and sealed the same. According to PWs.1 and 2, on completing the proceedings, they returned to the Excise Range Office, Chathannoor Excise Range and entrusted the accused as well as the material objects and sample and other records with PW5, the Excise Range Inspector. The evidence of Pws.5 and 6 further show that on receiving the material objects and the sample and the accused and other documents, he prepared a crime and occurrence report and he had also deposed that the chemical analysis report has also been received. The further investigation was undertaken by PW6, who laid the charge. 6. The learned counsel for the appellant submitted that the CRL.A.No. 1360 of 2003 **==> picture [25 x 9] intentionally omitted <==** accused was not arrested with the contraband article as alleged by the prosecution and according to the learned counsel, the appellant/accused is in no way responsible for the alleged offences, but the brother of the accused is the person, who committed the offence. It is also contended that except two packets out of 60 packets, no sample is drawn from 58 packets and there is no solid evidence about the quantity of the liquid contained in each packet. These are the arguments advanced by the learned counsel for the appellant and according to him, no other grounds are to be urged. 7. Per contra, the learned Public Prosecutor submitted that the appellant was got red-handed with the contraband article and the said facts are proved through the evidence of Pws.1 and 2 official witnesses whose evidence are free of any doubt or contradiction or infirmities. Therefore, according to the learned Public Prosecutor, the trial court is fully justified in convicting the appellant and no interference is warranted. CRL.A.No. 1360 of 2003 **==> picture [25 x 9] intentionally omitted <==** 8. I have carefully considered the submissions made by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record. 9. In view of the above referred contentions 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. Having regard to the facts and circumstances involved in the case and in view of the evidence of Pws.1 and 2, the official witnesses who involved in the detection of the crime, it can be seen that the prosecution has succeeded in proving the fact that at about 12.30 p.m. on 10.12.1997 at the place of occurrence, the accused was found in his possession MO1 gunny bag containing 60 plastic packets each containing 150 ml. of liquid. Though Pws.3 and 4 turned hostile, the evidence of Pws.1 and 2 in this respect can be admitted and acted upon since their evidence is free of any doubt or contradiction or infirmities. But, the above proved facts alone are not sufficient to CRL.A.No. 1360 of 2003 **==> picture [25 x 9] intentionally omitted <==** attract the penal liability under Section 55(a) of the Abkari Act against the appellant. In order to substantiate such allegation and to establish the offence under Section 55(a) of the Abkari Act, it is the further burden of the prosecution to establish that the liquid, which was seized from the possession of the appellant/accused, is the contraband article as per the provisions of the Abkari Act and in the present case, it is the unshifted burden of the prosecution to prove positively that what seized is nothing, but illicit arrack. To prove the above facts, according to me, Ext.P5 chemical analysis report alone is not sufficient. But, the learned counsel miserably failed to argue any legal points available to him based upon the evidence and materials on record. However, this Court cannot approve the prosecution case simply due to the failure of the learned counsel in highlighting the legal and factual defect in the prosecution case. It is the duty of this Court to render justice to the parties, who approach this court irrespective of the fact whether his counsel has done justice to him or CRL.A.No. 1360 of 2003 :-9 -: not. 10. A Division Bench of this Court in the decision reported in **Ravi** v. **State of Kerala** [2011(3) KLT 353] has held that the prosecution has a duty to prove that it was the sample taken from contraband liquor seized from the accused, which had reached in the hands of Chemical examiner in a fool proof condition. On a perusal of Ext.P5 chemical analysis report, it can be seen that the Chemical Examiner received one sealed bottle containing 300 ml. of clear and colourless liquid connected with Crime No.71/1997 of Chathannoor Excise Range for chemical analysis and it is further certified that the seal on the bottle was in tact and found tallied with the sample seal provided. No materials other than Ext.P5 are available on record to substantiate the contents of Ext.P5. Though in the deposition of PW1, it is stated that he had drawn 300 ml. of liquid from the two packets out of 60 packets allegedly seized from the possession of the accused, in Ext.P1 mahazar, there is no reference about the quantity of sample CRL.A.No. 1360 of 2003 **==> picture [31 x 9] intentionally omitted <==** drawn and taken by PW1 for the purpose of chemical analysis. So, the claim of PW1 during his deposition before the court finds a place in Ext.P1 mahazar, which is claimed to have prepared contemporaneously connected with the so-called seizure. It is also relevant to note that in this case, the prosecution has not produced any property list or forwarding note or requisition for the purpose of sending the sample for chemical analysis. In Ext.P1 mahazar, though it is stated that the seal was affixed, the description of seal used has not been made mentioned in Ext.P1. No specimen seal impression is also affixed in Ext.P1 mahazar. As no forwarding note is prepared and filed before the court, it can be reasonably presumed that the Chemical Examiner had no occasion to compare the seal which is allegedly affixed on the sample bottle with any authentic seal so claimed to have affixed by PW1. If a forwarding note or requisition is prepared and filed before the court, the same would have been contained the specimen sample seal and on forwarding the same to the Chemical CRL.A.No. 1360 of 2003 **==> picture [30 x 9] intentionally omitted <==** Examiner, on the basis of the same, the Chemical Examiner could have compared the seal so provided with the seal, which is affixed on the sample bottle. But, due to the absence of such forwarding note/requisition with the sample seal, according to me, there is no link evidence to show that the sample which was subject to chemical analysis is the sample drawn from the contraband article allegedly seized from the possession of the appellant/accused. In view of the above decision cited, the above defect is highly fatal to the prosecution and therefore, it cannot be said that the prosecution has succeeded in proving its allegation against the appellant beyond reasonable doubt. 11. In the light of the above discussion and the evidence and materials referred to above, I am of the view that the prosecution has miserably failed to prove its allegation against the appellant beyond reasonable doubt and for that reason, I am unable to concur the finding and conviction recorded by the trial court against the CRL.A.No. 1360 of 2003 **==> picture [31 x 9] intentionally omitted <==** appellant. Hence, the conviction recorded by the trial court against the appellant for the offence under Section 55(a) of the Abkari Act is set aside. In the result, this appeal is allowed setting aside the judgment dated 31.7.2003 in S.C.No.1780 of 2002 on the file of the III Additional Sessions Judge, Kollam and the appellant/accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him shall stand cancelled and he is set at liberty. The Criminal Appeal is disposed of as above. **V.K.MOHANAN** , Judge MBS/ ## CRL.A.No. 1360 of 2003 :-13 -: CRL.A.No. 1360 of 2003 :-14 -: ## **V.K.MOHANAN, J.** CRL.A.No. 226 OF 2003 J U D G M E N T CRL.A.No. 1360 of 2003 **==> picture [31 x 9] intentionally omitted <==** Dated:29.10.2013