Appu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939** **CRL.A.No. 766 of 2008 ( ) --------------------------** **AGAINST THE JUDGMENT IN SC NO.217/2007 OF THE ADDITIONAL SESSIONS COURT/SPECIAL COURT FOR N.D.P.S. ACT CASES, THODUPUZHA** **APPELLANT/ACCUSED:** **--------------------** **APPU, S/O.MANIKYAM, THOTTUMKARA VEEDU, NELLIPPARAKKUDIYIL, KORANGATTI KARA, MANNAMKANDAM VILLAGE.** **BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA** **RESPONDENT/COMPLAINANT.:** **---------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.K.K. SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKV** ## **K.P. JYOTHINDRANATH, J ===================** Criminal Appeal No.766 of 2008 ======================= Dated this the 21[st] day of June, 2017 ## JUDGMENT The appellant was convicted by the trial court for an offence under Section 8(1) and (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- with default imprisonment for six months. 2. The prosecution case is as follows:- On 16.07.2005 at about 5.00 pm, the accused was found in possession of eight litres of illicit arrack and thereby committed the above offence. 3. When the appeal came up for hearing, the learned counsel appearing for the appellant vehemently argued before me that here is a case where the prosecution miserably failed to prove the case put forward by them. It is the submission that the detecting officer, who was examined Criminal Appeal No.766 of 2008 2 as PW4, categorically got a case that a secret information was received that illicit arrack was kept in the house of the appellant. On such information, he proceeded to the spot. It appears that as revealed during the cross examined that he proceeded in a taxi car and it was evident and clear that even though, his positive case was that on the basis of a secret information he proceeded, no search memorandum prepared. But to circumvent all these aspects, he now got a case that he found the accused even before he reached the house and was arrested. The version now put forward before the court is not believable. It is the submission that Pws1 and 2 are the alleged mahazar witnesses. During cross examination, it came out in evidence that they were not the local residents. They were residing far away. No person from the neighbourhood was shown as witness. The positive case of the defence is that no article seized from the possession of the appellant herein. Something was obtained Criminal Appeal No.766 of 2008 3 by the police officer from some where and making use of the same, a false case has been foisted against the appellant. According to the appellant he was sleeping in his house at the relevant point of time and from therein he was arrested. 4. It is also argued in this case that alleged seizure was on 16.07.2005. He was produced before court only on 18.07.2005. The delay was not explained by the prosecution. It is also the submission that admittedly, the detecting officer was on law and order duty. Then, no explanation is forthcoming regarding, during the said period, where he kept the contraband, whether it was kept intact or not. When such an evidence is not before the court and the delay for producing the same forthwith before the court is not deposed, appellant is entitled for benefit of doubt. Another aspect highlighted before me is that here is a case where the trial judge actually made use of the evidence of hostile witnesses to come to a conclusion that there is corroboration Criminal Appeal No.766 of 2008 4 for the evidence of PW4. But in reality, those witnesses were actually hostile witnesses. Such an evidence was not put during the questioning under Section 313 of Cr. P.C. When such material was not put by the Court, then naturally it cause prejudice to the accused. When there is denial of seizure as alleged by the prosecution, then relying upon the sole evidence of PW4, it may not be proper to convict an accused for a grave offence like this. It is to be remembered that Section 8 of the offence for which the appellant was convicted by the trial court is punishable for a sentence for a period up to 10 years. When the sentence is so harsh, the prosecution should examine at least any other official witnesses to give assurance to the court to rely upon the evidence of PW4. 5. It is also the submission that the accused was arrested from the spot and there were two witnesses as shown therein. Then surely, those persons also may be Criminal Appeal No.766 of 2008 5 witnessed the incident. When such witnesses were available, and those witnesses were not examined before the court, then non examination of those witnesses can enable to draw an adverse inference especially, when the positive case of the appellant is that he was arrested from his house and not as alleged by the prosecution. 6. I heard the learned Public Prosecutor. 7. The learned Public Prosecutor submitted before me that this is one of the cases where all the formalities are complied by the officials and it is a case where there was seizure of eight litres of arrack. Nothing is attributed to the investigating officer to foist a false case against the appellant. Under such circumstances, there is nothing to interfere with the appreciation of evidence by the courts below. In this case, surely, the appellant got a case that no search memorandum prepared and on perusal of the documents also it is seen that there is no search Criminal Appeal No.766 of 2008 6 memorandum. It is a fact that a search memorandum need to be prepared immediately before entering the house. The details of the house has to be entered/given in a search memorandum. Those aspects may not be available to the prosecution, when they were proceedings to the spot. In this case, as per the prosecution case, even before reaching at the house, the seizure was affected and thereafter lapse. 8. The next aspect is regarding questioning under Section 313 of Cr.P.C. There also I perused very carefully the evidence of PWs1 and 2. It can be seen that those witnesses were declared hostile and was permitted to be cross examined by the prosecutor. On perusal of questing under Section 313 of Cr. P.C, it can be also seen that a specific question was put to the accused regarding signing of PWs1 and 2 (Mahazar witnesses) in Ext.P1 mahazar. Thus, it cannot be said that any prejudice caused on those aspects also, especially when the appreciation of evidence and Criminal Appeal No.766 of 2008 7 reliance was made mainly on the evidence of PW4. The only point to be considered is regarding there is any procedural arrest. 9. On perusal of the forwarding note, specimen seal impression is seen affixed therein. But the name of the person who was deputed to carry the same to the expert was not entered in that form. As per the dictum laid in **Kumaran P. v State of Kerala and Another** [2016 (5) KLT 632), it can be seen that, when the name of the excise guard is not mentioned in the forwarding note, it is the bounden duty of the prosecution to examine the thondi clerk of the court or excise guard or the person concerned to show that it was despatched in the same condition to the laboratory. When the name of the person who had taken the article to the laboratory is not on record, this point can be treated as beneficial to the defence on the basis of the reported decision referred above. It can be further seen that Criminal Appeal No.766 of 2008 8 prosecution is relying on the sole testimony of PW4. Thus, considering the totality of the case, I feel that benefit of doubt can be extended to the defence. Thus, appeal allowed. Conviction set aside and bail bond cancelled. Sd/- **K.P. JYOTHINDRANATH, JUDGE** /TRUE COPY/ SKV P.A. TO JUDGE