Bhaskaran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936 CRL.A.No.820 of 2004 (A) -----------------------------AGAINST THE JUDGMENT IN SC 67/2002 of ADDL. SESSIONS COURT (ADHOC-I), ALAPPUZHA DATED 27-04-2004 ----------- APPELLANT/ACCUSED: ------------------------- BHASKARAN, ANDISSERI VEEDU, MUTTOM MURI, KARTHIKAPPALY ALAPPUZHA DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT/COMPLAINANT: --------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.820 of 2004 -----------------------------------------------Dated this the 25[th] day of July, 2014 ## **JUDGMENT** The appellant was convicted for the offence under Section 8 of the Abkari Act by the Additional Sessions Court (Adhoc)I, Alappuzha. He was sentenced to undergo rigorous imprisonment for one year and six months and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ rigorous imprisonment for six months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW1, the Excise Preventive Officer of the Excise Special Team, Alappuzha, and his party were on patrol at Muttam in Cheppad Village at about 6.00 p.m. on 01-10-1999. While so, Crl. Appeal No.820 of 2004 -2- PW1 received reliable information that the appellant was keeping arrack in his house. PW1 prepared Ext.P1 Search Memo and sent it to the court for the purpose of conducting search at that house. Then, PW1 and his party reached that house. The appellant was then present in that house. PW1 and his party conducted a search in that house. During search, a 1.5 litre plastic bottle containing liquid was found in the kitchen of that house. On examining that plastic bottle after opening the same, it was realised that the bottle contained full of arrack. Since the appellant had committed an offence under the Abkari Act, PW1 arrested him then and there preparing an Arrest Memo. Arrest Notice was also prepared. The plastic bottle containing arrack was seized under Ext.P2 Seizure Mahazar in the presence of witnesses. Ext.P3 is the Search List prepared by PW1 in the presence of witnesses. PW1 had drawn 200 ml. of arrack in a 375 ml. bottle as sample from the bulk of arrack contained in the plastic bottle and sealed the sample bottle. The plastic Crl. Appeal No.820 of 2004 -3- bottle containing arrack was also sealed. They were labelled also. Thereafter, PW1 and his party, with the appellant, contraband and the records, reached the Excise Range Office, Karthikappally, and handed over them there. 4. PW6, the Excise Inspector, Excise Range Office, Karthikappally, had registered Crime No.56 of 1999 of that Range Office in respect of the occurrence on the next day. Ext.P5 is the Crime and Occurrence Report prepared by PW6. He had produced the appellant along with the Remand Report before the Magistrate on 02-10-1999. He had also produced the contraband and the records before the court on that day. He had conducted the investigation in this case. He had questioned the witnesses and recorded their statements. He had completed the investigation. PW5, the Excise Inspector, Excise Range Office, Karthikappally, had submitted the Final Report before the Judicial First Class Magistrate's Court, Kayamkulam. 5. The learned Magistrate committed the case to the Crl. Appeal No.820 of 2004 -4- Court of Session, Alappuzha and, from there, it was made over to the Additional Assistant Sessions Court, Alappuzha. The Additional Assistant Sessions Court framed a charge against the appellant alleging the offence under Section 8 (2)/8(1) of the Abkari Act. The appellant had pleaded not guilty of the charge. Later, the case was withdrawn and made over to the Additional Sessions Court (Adhoc)I, Alappuzha. 6. The prosecution examined PWs.1 to 7 and marked Exts.P1 to P6 and MO1 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8 of the Abkari Act and convicted him thereunder. The appellant was heard on the question of sentence and imposed the sentence on him. 7. The appellant has raised various contentions Crl. Appeal No.820 of 2004 -5- challenging the conviction and sentence passed against him. It is the case of the prosecution that PW1 and his party detected the offence while they were conducting search at the house of the appellant at about 6.00 p.m. on 01-10-1999. The appellant was arrested then and there and the contraband was seized under Ext.P2 Seizure Mahazar. A sample of 200 ml. of arrack in a 375 ml. bottle was also drawn by PW1 from the bulk contained in the plastic bottle. Both the sample and the plastic bottle were sealed also by PW1. Thereafter, the appellant, contraband and the records were handed over by him at the Excise Range Office, Karthikappally, on that day itself. The contraband including the sample were produced by PW6 before the Magistrate on 02-10-1999 along with a List of Property. The List of Property thus produced by PW6 was not marked in the case. It is available among the records. PW6 stated that the properties were produced on 02-10-1999. But, they were returned and directed to produce them on 06-10-1999. Accordingly, they Crl. Appeal No.820 of 2004 -6- were again produced on 06-10-1999. Under whose custody the contraband including the sample was kept after they were returned from the court on 02-10-1999 till they were again produced on 06-10-1999? PW6 did not say anything about the same. The evidence of other official witnesses examined in the case also did not say anything about the custody of the contraband after they were returned from the court on 02-10-1999 till they were again produced before the court on 06-10-1999. It can be seen from the List of Property produced that the properties were directed to be produced before the court on 06-10-1999. Thereafter, when they were produced before the court on 06-10-1999, the item-1 plastic bottle containing about 1.3 litres of arrack was again returned for keeping under safe custody as there was no sufficient space in the property room of the court for keeping the same. Therefore, another question also arises. Where that plastic bottle was kept thereafter? No answer was given by the prosecution. Crl. Appeal No.820 of 2004 -7- 8. One more aspect also has to be considered along with this. PW6 deposed before the court that after 8.00 p.m. on 01-10-1999, he was not in the office. He further stated that PW1 did not entrust him directly any of the records in this case at night on 01-10-1999. PW2, the Excise Guard, who accompanied PW1 at the time of detecting the offence, specifically deposed before the court that the excise party reached the Karthikappally Excise Range Office at 9.30 p.m. after the search at the house of the appellant. When these statements of PWs.2 and 6 are considered, there is no scope for entertaining any doubt that the contraband articles did not reach PW6 on 01-10-1999. Then, a question arises for consideration? To whom the contraband, records and the appellant were handed over during the night on 01-10-1999? No answer is forthcoming. There is absolutely no evidence to show under whose custody the contraband including the sample was kept after it reached the Excise Range Office at Karthikappally and till they were produced before the Crl. Appeal No.820 of 2004 -8- Magistrate on 02-10-1999. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned single Judge of this Court observed as follows: “.......... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13-09-1998 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ..........” Therefore, in that case, the accused was found to be entitled to the benefit of doubt. In the case on hand also, for the reasons already stated, such a benefit is to be extended to the appellant. 9. It is the case of the prosecution that PW1 and his party after receiving reliable information regarding the possession of arrack by the appellant, conducted a search at his house at about 6.00 p.m. on 01-10-1999. It is stated in Ext.P2 Seizure Mahazar prepared by PW1 that the said house situates east-west facing south and it has seven rooms apart Crl. Appeal No.820 of 2004 -9- from other matters noted in this document. PW1 deposed that the said house searched by him had six or seven rooms. PW2 stated that the said house had seven rooms. The number of that house is stated in Ext.P2 Seizure Mahazar as VI/202 of Cheppad Panchayat. Ext.P6 is the extract from the Building Tax Assessment Register in respect of Ward No.VI for the period 1993-98 of Cheppad Grama Panchayat. It can be seen from this document that serial No.202 is in respect of House No.202. The name of the owner of that house is noted as Bhaskaran Andisseril. The building is tiled and has two rooms, according to the description of the building given in this document. The Secretary of Cheppad Grama Panchayat was examined as PW7. Ext.P6 was proved through him. PW7 stated that the assessment which was prevailing in October, 1999 was also the same as in Ext.P6. If that be so, the statements made in Ext.P2 by PW1 in respect of the house searched by him and the statements made in Ext.P6 cannot go together. Learned counsel for the Crl. Appeal No.820 of 2004 -10- appellant argued that this itself shows that, as a matter of fact, PW1 and his party had not conducted a search in the house of the appellant. The building number noted in Ext.P2 and in Ext.P6 is one and the same. The name of the owner of the building noted in Ext.P2 and in Ext.P6 is also the same. But, there is vast difference in regard to the description of the building made in Ext.P6 and in Ext.P2. It is the duty of the prosecution to prove to the hilt that it was the house of the appellant subjected to search by PW1 and his party. Such a burden has not been discharged by the prosecution in this case. Therefore, the vast difference in the description of the building in Ext.P6 and in Ext.P2 throws considerable shadow of doubt regarding the search claimed to have been conducted by PW1 and his party at the house of the appellant on 01-10-1999. 10. Some more facts are also to be considered along with this. PW1 stated that there was a tarred road on the northern side of the house searched. He does not have a Crl. Appeal No.820 of 2004 -11- case that there is another tarred road on the southern side of that house. But, according to PW2, there is a road on the southern side of that house. He does not have a case that there is a tarred road on the northern side of that house. PW1 stated that the witnesses named in Ext.P2 Mahazar were there at the house of the appellant when the Excise Party reached that house. He had also stated that, while conducting the search, about 2 persons were present apart from Excise Officials. Many persons had not gathered there, according to him. But, the case of PW2 is different. He stated that the witnesses were secured by the Excise Party from the road on the southern side of that house. Pedestrians were there at that time. He further stated that at the time of search about 15 persons had gathered there. These contradictions throw considerable shadow of doubt regarding the search claimed to have been conducted by PW1 and his party at the house of the appellant. 11. For the foregoing reasons, the impugned conviction Crl. Appeal No.820 of 2004 -12- and sentence passed by the court below are liable to be set aside. The appellant is entitled to be acquitted of the offence under Section 8 of the Abkari Act. 12. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 8 of the Abkari Act. He is set at liberty. The bail bond executed by the appellant shall stand cancelled. The amount, if any, deposited by the appellant shall be returned to him. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns & ks/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.820 of 2004 -13-