Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** **CRL.A.No. 34 of 2010** **AGAINST THE JUDGMENT, CONVICTION AND SENTENCE IN SC 264/2006 of ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC), FAST TRACK COURT-I, PATHANAMTHITTA DATED 09-12-2009** **APPELLANT/ ACCUSED :** **BABU, S/O. PONNAPPAN, MULAKUMURUPPEL VEEDU, VALLICODE, PATHANAMTHITTA.** **BY ADVS. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU** ## **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.No. 34 of 2010** 2 ## **JUDGMENT** The appellant herein is the sole accused in S.C.No.264/2006 on the files of the Additional District and Sessions (Adhoc), Fast Track Court-I, Pathanamthitta, for the offences punishable under Sections 8(1) & 8(2) of the Kerala Abkari Act. 2. The prosecution case is that the appellant was seen distilling arrack from House No.112 of Ward No.7 of Vallicode Panchayath and a bottle containing 750 ml. of arrack and another bottle containing 500 ml. of arrack and Wash in a 35 litre Can was found at 11.00 a.m., on 31.08.2003, by the Circle Inspector of Police, Pathanamthitta. The Circle Inspector of Police, who was examined as PW4 has deposed that on 31.08.2003, at 10.30 a.m., on getting reliable information, he proceeded for search in the house of one mukalmuruppel Babu, Vallicode. In the presence of witnesses, he entered inside the house. The door was closed at that time. He knocked the door. The owner of the house Babu opened the door. Then, he conducted search in the kitchen and there was an aluminium pot, aluminium cheruvam and earthern pot fitted with tube **CRL.A.No. 34 of 2010** 3 and above the aluminium pot, there was aluminium uruli. Liquid was falling to the pot from the tube. He inspected the liquid by smelling and tasting and found that it was arrack. In the aluminium pot, Wash was being boiled. There was a 750 ml. Bottle, containing full of liquid. In the bottle to which the tube was fitted, there was 500 ml. liquid. He tested the liquid by smelling and tasting and found that it was arrack. The sample was taken from the bottle and it was sealed and labelled. There was a black Can and 2 buckets near the oven. The Wash was destroyed and the vessels were taken in the custody as per mahazar. After the completion of the procedural formalities and inspection, the final report was filed against the appellant by the Circle Inspector of Police, Pathanamthitta. The case was taken and submitted to the Sessions Court, Pathanamthitta. 3. The appellant entered appearance and the charge was read over to him. On the side of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P9 were marked and MOs 1 to 8 were produced. No defence evidence was adduced. On hearing both sides, the court below convicted the appellants under Sections 8(1) r/w. Section 55(g) of the Abkari Act. He **CRL.A.No. 34 of 2010** 4 was sentenced to undergo rigorous imprisonment to 2 years each and to a fine of Rs.1 lakh each, in default of payment of fine, rigorous imprisonment for one year each for the offences under Section 8(1) r/w. 8(2) of the Abkari Act and 55(g) of the Abkari Act. Highly aggrieved by the conviction and sentence passed by the Sessions Court, this appeal has been filed. 4. The main ground urged by the appellant was that the lower court has not appreciated the evidence in its correct perspective. It was also submitted that the court below went absolutely wrong in finding that the appellant/ accused is guilty of the offence alleged against him. The prosecution has not adduced any evidence to prove that the house belongs to the appellant. There was no proper sampling done by the Detecting Officer. No arrest was properly recorded. 5. Now the only question to be considered is whether the conviction and sentence imposed by the Sessions Court is justifiable or not. PW1 is an independent witness. He has admitted his signature on Ext.P1 search list. According to him, he has not seen MOs alleged to have seized by the detecting officer. But he has signed Ext.P1 search list, when he was standing at Vallikodu Puthen Chandha. So, he was **CRL.A.No. 34 of 2010** 5 declared as hostile to the prosecution and he has not support the case of the prosecution. PW2 is another independent witness. He has also admitted his signature on Ext.P1 search list and also admitted the signature on the label affixed on the sample bottle. But he has deposed that he has not seen the occurrence. So, he was also declared hostile to the prosecution. 6. PW3 is the Police Constable, who accompanied the detecting officer. According to him, he went along with the Circle Inspector of Pathanamthitta Police Station, on 31.08.2003, at about 10.30 a.m. for patrol duty. On the way, they got information that the appellant/ accused was conducting sale and manufacture of illicit arrack. Accordingly, they reached the residence of the appellant at 11.00 a.m. and knocked on the door. The appellant opened the house. Thereafter, they entered into the house of the appellant and searched the kitchen. There, they found that manufacturing process was going on. They had seen a 20 litre aluminium pot on the oven. They also found an earthen pot and one aluminium uruli above the aluminium pot. There was water inside the uruli also. According to them, the appellant was **CRL.A.No. 34 of 2010** 6 distilling the contraband articles and collected in the bottle. Thereafter, they have taken the liquid out of the oven and after tasting and smelling, they found that it was arrack. They have also found a black Can near the pot, which contain 35 litres of Wash. There was another 750ml bottle containing full of arrack. The liquid inside the bottle was also tested by smelling and tasting. There was a plastic bucket near the oven, which was filled with water. The Circle Inspector has seized the entire articles after preparing the mahazar. Thereafter, the sample was taken from the bottles and it was sealed. Thereafter, he arrested the appellant. According to him, the Wash, which was detected from the spot was destroyed. He identified MO1 as the aluminium pot, MO2 as the aluminium uruli, MO3 as the Can in which there was Wash. He identified MO4 as the bottle in which tube was fitted and liquid was dripping through the tube. MO5 is the bottle in which there was full of arrack. MO6 & MO7 is the bucket seen near the place of occurrence. On MO4 and 5, there is the label containing the signature of the witnesses and the Circle Inspector. He has also identified the appellant, who was standing behind the door closer. 7. PW4 is the Detecting Officer, who was the then **CRL.A.No. 34 of 2010** 7 Circle Inspector of Pathanamthitta Police Station. He has also given evidence in accordance with the evidence of PW3. He has also testified that in the presence of the witnesses, he entered inside the Mukalmuruppel house belongs to the appellant and detected that he was manufacturing arrack inside the kitchen by using MOs 1 to 8. Accordingly, he has seized the entire utensils from the kitchen and taken sample from the bottle and collected in a 500 ml. bottle and properly labelled and sealed by affixing the signature of himself and witnesses. Ext.P1 is the search list. Ext.P3 is the arrest memo. Ext.P4 is the custody memo. Thereafter, he returned to the police station along with the appellant and MOs and registered Ext.P5 FIR. Thereafter, the appellant was produced before the court along with Ext.P6 remand application. MOs were produced as per Ext.P7 property list on 01.09.2003 before the court. Ext.P8 is the carbon copy of the forwarding note. Ext.P9 is the report given by the Asst. Chemical Examiner bearing his signature and office seal. As per Ext.P9, it was stated that item No.1 contained 58.50% and item No.2 contained 61.65% by volume of ethyl alcohol. On the top of the aluminium pot, earthen pot was seen. He identified MOs 1 to 8 produced before the court. **CRL.A.No. 34 of 2010** 8 8. In cross examination, he has stated that the search memorandum was sent to the court through a policeman. According to him, since there was no distilling, the sample of wash was not taken. As per Ext.P1 search list, search was conducted in Door No.VII/496. It is important to note that the ownership certificate of the above said building was not produced. Importantly, it is to be noted that the appellant/ accused was inside the above house and all the contraband articles and apparels were seized from the possession of the appellant. There was an attempt on the part of the defence that these MOs were recovered from a small stream near the rubber plantation. These facts were denied by PW4, the Detecting Officer. So the lower court has relied on the evidence of PW3 and PW4, who has supported the prosecution and convicted the accused thereunder. 9. In this case, the independent witness has admitted the signature on the label as well as in the search memorandum. In the arrest memorandum, the place from where arrest was effected is noted and not the spot from which the arrest was made. The further contention of the witness was that the house does not belong to the appellant. It has come **CRL.A.No. 34 of 2010** 9 out that the door was opened by the appellant when knocked by the Circle Inspector of Pathanamthitta. At the time of search, there is no inmates in that house except the appellant. So, it is proved by the prosecution that the apparels and the contraband articles were recovered from the possession of the appellant. PW2, the independent witness has stated that the Circle Inspector called him to see the distilling in the house of Babu. So, it is true that PW4 has searched the house of the appellant. The seizure of MOs & 5 bottles containing arrack was also proved by the evidence of PWs 3 and 4 and from the evidence of PW2. There is no delay in producing the samples before the court below and Ext.P9 Chemical Examiner's Report would establish that the samples contained 58.50% and 61.65% by volume of ethyl alcohol. So, it is proved by the prosecution that the appellant was conducting manufacturing of the illicit arrack at his residence. 10. At last, the argument on the side of the appellant was that PW4 is the detecting officer as well as the investigating officer in this case. PWs 1 and 2 are the independent witnesses. PW3 is the Police Constable, who accompanied PW4. **CRL.A.No. 34 of 2010** 10 11. On perusal of the case records, it was revealed that the Circle Inspector of Pathanamthitta Police Station has detected the alleged offence on 31.08.2003, at 11.00 a.m. and he himself has conducted investigation in this case and filed charge sheet also. 12. In this connection, the learned counsel for the appellant has cited a ruling in **Mohanlal v. State of Punjab [2018 (3) KLT 852 (SC)]** wherein it has held that “a fair investigation which is but the very foundation of a trial necessarily postulates that the informant and the investigator must not be the same person. It was further held that in a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair”. 13. In this case, the Investigating Officer and the Detecting Officer is one and the same and therefore, it cannot be said that a fair investigation was done in this case. In the **CRL.A.No. 34 of 2010** **==> picture [12 x 8] intentionally omitted <==** absence of a fair investigation, there can be no fair trial. On this sole ground alone, I find that it is just and proper to allow the appeal. In the result this appeal is allowed. The conviction and sentence imposed on the appellant in S.C.No.264/2006 on the file of the Additional District and Sessions Judge (Ad hoc) Fast Track Court-I, Pathanamthitta is hereby set aside. He is set at liberty forthwith. The bail bond, if any executed, shall stand cancelled. Sd/- **ANNIE JOHN, JUDGE** True copy PA to Judge RKM