Baby @ Cheriyan and Thankachan @ Emmanuel v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 2ND DAY OF JANUARY 2014/12TH POUSHA, 1935 CRL.A.No. 1684 of 2003 ( ) ---------------------------------- AGAINST THE JUDGMENT IN SC 64/2000 of ADDL. SESSIONS COURT (ADHOC), KALPETTA DATED 19-09-2003 ## APPELLANTS/ACCUSED : --------------------------------- 1. BABY @ CHERIYAN, S/O. KURUVILA, KUNNATHU VEEDU, PERIKKALLOOR, PADICHIRA. 2. THANKACHAN @ EMMANUVEL, S/O. MATHEW, EDAMALAPARAMBIL HOUSE, ALATHUR, PADICHIRA, KOTTAYAM. BY ADV. SRI.P.N.PURUSHOTHAMA KAIMAL RESPONDENT : -------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. N. SURESH. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/04/01 ## V.K.MOHANAN, J. ---------------------------------------Crl.A.No. 1684 OF 2003 ---------------------------------------- Dated this the 2[nd] day of January, 2014 ## J U D G M E N T Challenging the judgment dated 19.09.2003 in S.C.No.64 of 2000 of the Court of Additional Sessions Judge (Adhoc), Kalpetta, the accused therein preferred this appeal as they are convicted and sentenced for the offence under Section 55(a) of the Kerala Abkari Act. 2. The prosecution case is that, on 19.03.1998 at about 10.25 p.m., the accused were found transporting 2000 packets, each containing 100 ml of Karnataka made arrack in a jeep bearing Registration No.KL-12/4885 at 2[nd] mile through the road leading to Pathiriyambam and the jeep was driven by the 1[st] accused and the 2[nd] accused was sitting on the front side seat. According to the prosecution, on giving signal, the jeep was stopped and on inspection of the same, eight gunny bags, placed on the back of the jeep, were found which contained altogether 2000 packets each Crl.A.No. 1684 OF 2003 2 containing 100 ml of Karnataka made arrack. According to the prosecution, the accused had thus committed the offence punishable under Section 55(a) of the Abkari Act. On the above allegation, Crime No.31 of 1998 was registered in the Kambalakkad Police Station. 3. On completing the investigation, a report was filed in the Court of Judicial First Class Magistrate, Mananthavady wherein C.P.No.24 of 1999 was instituted and subsequently committed the case to the Sessions Court wherein S.C.No.64 of 2000 was instituted and thereafter made over the case to the present trial court for disposal. On the appearance of the accused after perusal of the prosecution materials and hearing the prosecution and the defence, a formal charge was framed against the accused for the offence punishable under Section 55(a) of the Abkari Act and when the said charge read over and explained to the accused, they denied the same and pleaded not guilty. Hence the prosecution adduced its evidence by examining PWs 1 to 8 and producing Exhibit P1 to P4 documents. MOs 1 and 2 are Crl.A.No. 1684 OF 2003 3 identified as material objects. No evidence, whatsoever, is adduced from the side of the defence. The trial court finally found that the prosecution has succeeded in establishing the charge framed against the accused beyond shadow of doubts and accordingly they were found guilty of the offence punishable under Section 55 (a) of the Abkari Act and convicted thereunder. On such conviction, each accused was sentenced to undergo rigorous imprisonment for three years and to pay a fine of `1,00,000/- each and in default of payment of fine, each of them was directed to undergo simple imprisonment for one year. Set off is allowed. Challenging the above conviction and sentence, the accused therein preferred this appeal. 4. Heard Adv. Sri.Babu Kumar P., the learned counsel appearing for the appellants and Sri. N. Suresh, the learned Public Prosecutor for the State. 5. To prove the incident and to prove the detection of the crime and seizure of the contraband article, the prosecution examined PWs 1, 2, 4 and 5. But the Crl.A.No. 1684 OF 2003 4 independent witnesses particularly PWs 4 and 5, who cited as attesters to Exhibit P1 seizure mahazar, turned hostile. Therefore, the prosecution is constrained to depend upon the evidence of PWs 1 and 2, the official witnesses to prove the above facts. When PWs 1 and 2 were examined, they have deposed in terms of the prosecution allegation and according to these witnesses, while they were on patrol duty during the night on 19.03.1998 and particularly when they reached at the place of occurrence and while inspecting the vehicles at Pathiriyambam, they noticed the jeep bearing Registration No.KL-12/4885 coming towards Pathiriyambam side and according to these witnesses, they gave signal to stop the vehicle for inspection. When the jeep was stopped, the 1[st] accused was seen in the driver’s seat and the 2[nd] accused was seen sitting in front seat of the jeep. According to these witnesses, on their inspection, they found eight plastic gunny bags and on further inspection they found Karnataka made arrack filled in packets of 100 ml each and on counting it is found to be 2000 packets. According to Crl.A.No. 1684 OF 2003 5 PWs 1 and 2, the accused were arrested then and there and the contraband articles and the jeep were seized and three packets of arrack containing 100 ml each opened and poured into a bottle for the purpose of sampling. According to PWs 1 and 2, the entire proceedings were recorded in the mahazar. Thereafter, on completing the above proceedings, they returned to the Police Station and registered a crime and on the next day, the accused as well as the material objects, jeep and the sample etc. were produced before the court. The investigation was further undertaken by PW7, during which he prepared a Scene Mahazar and finally the charge was laid by PW8. As I indicated earlier, the independent witnesses turned hostile when they were examined. When PW1 was examined, Exhibit P1 Seizure Mahazar, Exhibit P2 First Information Report were marked. When PW7 was examined, Exhibit P3 Scene Mahazar was marked. Exhibit P4 is the Chemical Analysis Report which was marked through PW8. It is on the basis of the above evidence and materials on record, the Crl.A.No. 1684 OF 2003 6 trial court found in favour of the prosecution and convicted the appellant. 6. The learned counsel for the appellants submitted that to support the prosecution evidence, there is no independent evidence, but the trial court, simply accepting the evidence of PWs 1 and 2, convicted the appellants. It is also the submission of the counsel that though the offence had occurred within the territorial jurisdiction of Kambalakkad Police Station, the investigation in this case was conducted by the PW7, the Sub Inspector of Police, Meenangadi who was attached to another Police Station and therefore, the evidence so collected by PW7 cannot be acted upon. In support of the above submission, the learned counsel placed reliance upon the decision in Saji @ Kochumon v. State of Kerala reported in [2010(3) KLT 471]. Relying on the decision of this Court in Sathi v. State of Kerala reported in [2007(1) KHC 778], the learned counsel submitted that Exhibit P4 Chemical Analysis Report cannot be believed, since there is no guarantee that the sample, Crl.A.No. 1684 OF 2003 7 which was subjected to Chemical Analysis, is the sample drawn from the contraband article allegedly seized from the possession of the appellants. So according to the learned counsel, the appellants are entitled to get the acquittal. 7. Per contra the learned Public Prosecutor submitted that the evidence of PWs 1 and 2, though they are official witnesses, are free of doubts or contradictions or infirmities and the contraband article produced before the court on the next day of its seizure and therefore the trial court is fully justified in its finding and convicting the appellants. Hence according to the learned Public Prosecutor, no interference is warranted. 8. I have carefully considered the submissions made by the learned counsel for the appellants as well as the learned Public Prosecutor. I have perused the evidence and materials on records. 9. In the light of the rival 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 Crl.A.No. 1684 OF 2003 8 and convicting the appellants for the offence punishable under Section 55 (a) of the Kerala Abkari Act. In the present case, as submitted by the learned counsel for the appellant, the independent witnesses examined in this case turned hostile towards the prosecution. Therefore, the further question to be considered is whether the evidence on record adduced by the prosecution through their official witnesses are reliable and whether it is proper and legal in accepting their evidence in the absence of corroboration from independent source of evidence? The first document came into existence in this case is none other than Exhibit P1 Seizure Mahazar. On a perusal of Exhibit P1 Seizure Mahazar, it can be seen that there is no explanation or description regarding the steps taken by PW1 towards drawing the proper sample and the safety measures adopted by him to keep the same intact. Of course, the body of Exhibit P1 Seizure Mahazar spell out the facts in nutshell and the list of properties measured and seized. As far as the Seizure Mahazar is concerned, it is a very crucial Crl.A.No. 1684 OF 2003 9 document especially when offences alleged are under the provisions of the Abkari Act, and on the basis of which, the court can consider the correctness or otherwise of the prosecution allegations. In Exhibit P1, Item No.4 referred to drawing of the sample which is recorded as “Item No.I- W dÉÄßÉÞÄߺî ÎáÄÜáµ{ßW ÈßKá ØÞOß{ßÈÞÏß ®¿áJí µáMßÏßÜÞAß ØàW æºÏñÄí ®H¢_1_(²Kí).” There is no mention that what was the quantity of the sample taken, how the sample bottle keep intact and what was the measures taken for keeping sample intact and to prevent the tampering of the same. It is also relevant to note that nothing mentioned in Exhibit P1 Seizure Mahazar about the sealing of the sample bottle and no description of the seal affixed on the sample bottle. The specimen seal is also not provided in Exhibit P1 Seizure Mahazar as well. On a perusal of Exhibit P4 Chemical Analysis Report, it appears that the Chemical Examiner received 300 ml of colourless liquid alleged to be the arrack sample involved in Crime No.31 of 1998 of Kambalakkad Police Station. Suffice to say, in the present Crl.A.No. 1684 OF 2003 10 case, no property list is produced and marked and no forwarding note also prepared and produced before the court. So absolutely there is no link evidence to show that how the Chemical Examiner received 300 ml of colourless liquid as sample in the Chemical Examiner’s Laboratory. So the paucity evidence on those aspects will go against the prosecution. 10. As per the version of prosecution, the alleged seizure was effected on 19.03.1998. According to PW1, he produced the sample and the contraband article before the court on the next day i.e., on 20.03.1998. But the court received the same only on 24.03.1998. To substantiate the above claim of PW1, no contemporary document is seen produced in the Court. However, in the judgment of the trial court particularly in paragraph 13 it is found that “So the evidence of PW1 that though he had produced the sample and residue on 20-3-98, the Court accepted the same on 243-98 seems to be correct. Further the evidence of PW1 is to the effect that the properties were in his proper custody till Crl.A.No. 1684 OF 2003 11 the same were produced before the Magistrate Court.” I am unable to sustain the above finding of the learned Judge. As I indicated earlier, no property list is seen produced in this case. As the court below observed that such a document found a place in the case bundle, I examined the case bundle and found the property list. The property list, though dated 20.03.1998, there is no endorsement on the same that the property list and the properties received by the learned Magistrate of the committal court on 20.03.1998 and returned the material object including the sample to the Police for producing on later date. The only endorsement found on the property list is dated 24.03.1998 in which the learned Magistrate, it is seen recorded as, “verified and received”. The above endorsement pre-supposes that the material objects and sample were produced before the court only on 24.03.1998. If that be so, the prosecution is answerable for the delay occurred in producing the samples and other material objects. But no explanation is offered by PW1 or any other official witnesses. PW7 says that he had Crl.A.No. 1684 OF 2003 12 no occasion to see the material objects and sample. As no forwarding note is produced, we do not know under what circumstances and how the sample was forwarded to the Chemical Examiner. Even though PW1 claimed that the sample and the material objects were under his custody, he has not stated about the safety measures taken to preserve the sample properly and against tampering the same. Since Exhibit P1 Seizure Mahazar does not contain any description about the measures taken to keep the sample intact and about the quantity of the sample drawn, in the absence of any positive evidence towards the safety measures taken by PW1, there is every possibility that the sample bottle was filled up later and therefore the tampering of the sample bottle cannot be ruled out. So the paucity of evidence on record, about the drawing of the sample, the safety measures taken to keep the sample intact and to rule out the tampering of the sample bottle and especially the delay occurred in producing the contraband article as well as the sample bottle, absence of the property list and forwarding Crl.A.No. 1684 OF 2003 13 note etc. are sufficient to disbelieve the case of the prosecution. A Division Bench of this Court in the decision in Ravi v. State of Kerala reported in [2011 (3) KLT 353] is held that the “production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” The very same decision which is also held that “Prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from accused which had reached the hands of Chemical Examiner in a fool proof condition.” In the light of the foregoing discussions and the defect pointed out, I am of the view that the prosecution has miserably failed to withstand the test laid down by the Division Bench in the above decision. Therefore, according to me, it is unsafe to convict the appellants on the basis of the above shabby and insufficient evidence of the prosecution. Though the contraband article involved more than 200 litres of arrack, due to the paucity of the evidence and extending benefit of Crl.A.No. 1684 OF 2003 14 doubts in favour of the accused, the conviction recorded by the trial court against the appellants is set aside. In the result, this appeal is allowed setting aside the judgment dated 19.09.2003 in S.C.No.64 of 2000 of the Court of Additional Sessions Judge (Adhoc), Kalpetta and the appellants are acquitted of all the charges levelled against them. The bail bond, if any,executed by the appellants stand cancelled and they are set at liberty. If the appellants have already deposited any amount in terms of the order dated 08.10.2003 in Crl.M.A.No.10331 of 2003 of this Court in the above appeal, the same shall be released to the appellants forthwith, in case, an application is moved in this behalf. V.K.MOHANAN, JUDGE DSV/03/01 # Crl.A.No. 1684 OF 2003 15