Biju, S/o 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. 1109 of 2006** **AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE DATED 16.05.2006 IN SC 103/2005 of ADDL.SESSIONS COURT, (ADHOC), (FAST TRACK-II), PATHANAMTHITTA** **PETITIONER/ ACCUSED :** **BIJU, S/O. BABU, REJANI VILASAM VEEDU, PONGALADI MURI, PANDALAM, THEKKEKARA VILLAGE, ADOOR TALUK.** **BY ADV. SRI.C.K.SAJEEV** **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 31.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **CRL.A.No. 1109 of 2006** 2 ## **JUDGMENT** The appellant was the accused in S.C.No.103/2005 on the file of the Additional Sessions Court, (Adhoc), (Fast Track-II), Pathanamthitta charge sheeted by the Excise Inspector, Adoor Range alleging commission of offence punishable under Sections 8(1) & 55(a) of the Kerala Abkari Act. ## 2. The prosecution allegation is that the accused was found in possession of 3 litres of arrack on 05.06.1999 at 6.15 p.m.on a public road in Pandalam Thekkekara Village by the Assistant Excise Inspector, Adoor Excise Range. ## 3. The learned Sessions Judge, as per judgment dated 16.05.2006 found him guilty of offences, convicted and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/- with default of imprisonment for one year. Aggrieved by the judgment of the **CRL.A.No. 1109 of 2006** 3 court below, this appeal has been preferred. 4. The prosecution allegation is that on 05.06.2009, at about 6.15 p.m., the Assistant Excise Inspector, while conducting patrol duty, found the appellant/ accused carrying a Can containing about 3 litres of arrack on the Mamood junction-Adoor Holly Cross Hospital Road, precisely in front of the petty shop conducted by Murali of Mukesh Bhavanam, situated on the eastern side of canal bridge in Pongaladi muri in Pandalam Thekkekara village. It was alleged that the appellant was intercepted then and there. He was arrested, contraband article was seized, sample was detected, mahazar was prepared etc. Thereafter, the appellant along with the articles was produced before the jurisdictional Magistrate. As per the prosecution, the contraband articles allegedly seized from the possession of the appellant was arrack. Therefore, he is alleged to have committed an offence punishable under Section 8(2) and 55(a) of the Kerala Abkari Act. On **CRL.A.No. 1109 of 2006** 4 appearance of the appellant before the lower court, the charge against him was framed and he denied to have committed the offence as alleged. 5. On the prosecution side six witnesses were examined as PWs 1 to 6 and Exts.P1 to P7 were marked. No defence evidence was adduced. Thereafter, the appellant was questioned under Section 313 of the Cr.P.C. and he denied all the incriminating circumstances brought against him and it was found that after the conclusion of the trial, the trial court found the appellant guilty of the offence under Section 8(2) of the Act. 6. The appellant has urged that the finding entered by the trial court is wrong. The identity of the thondi articles were not proved. There is a difference in the quantity of the sample as well as the finding of the chemical analysis report. There was no proper questioning of the appellant under Section 313 of the Cr.P.C. Therefore, the appellant prays for setting aside 5 ## **CRL.A.No. 1109 of 2006** conviction and sentence imposed by the court below. 7. Now the question to be considered is whether the finding entered by the trial court is justifiable or not. It is the case of the prosecution that the appellant was found carrying about 3 litres of arrack contained in a 5 litre black Kannas through the Mamoodu junction-Adoor Holly Cross Hospital, PWD road, precisely in front of the petty shop conducted by Murali of Mukesh Bhavanam situated on the eastern side of the canal bridge in Pongaladi muri in Pandalam Thekkakara village was detected and seized at about 6.15 p.m. on 05.06.1999 by CW1 Assistant Excise Inspector and team. 8. The offence was alleged to have detected on 05.06.1999. As per the prosecution, the appellant was arrested, red handed on the spot itself and contraband articles were seized from his possession. Then the burden is heavy on the **CRL.A.No. 1109 of 2006** 6 prosecution to prove that the contraband articles were seized from the possession of the appellant and also to prove that the contraband articles seized from the possession of the appellant was arrack. CW1 was examined as PW1. He was narrated the incident as per the charge. According to him, while he was on patrol duty, the appellant was seen carrying about 3 litres of arrack as contained in a 5 litre black Can and intercepted him along with the contraband articles. He has also given evidence regarding the sampling of the arrack, which was seized from the possession of the appellant. 9. According to PW1, the Can which was in the possession of the appellant contained a liquid and by smelling and tasting, it was found that the Can contained arrack. The witnesses present there is also made to satisfy the same. Thereafter, the appellant was questioned and his identity was revealed. Ext.P1 is the arrest memo prepared by PW1 which contained the signature of the witnesses **CRL.A.No. 1109 of 2006** 7 and also the signature and thump impression of the appellant. Subsequently, the arrest was intimated to the relatives of the appellant by name Sivarajan and his signature was also obtained on the reverse page of Ext.P1. The Can contained about three litres of arrack. So, 180 ml of arrack was taken as simple in a bottle of that size. The sample bottle and the Can with the remaining liquid were closed and sealed and affixed with label containing the signature of PW1 and the appellant. He has also deposed that the time of detection was at 6.15 p.m. He prepared Ext.P2 mahazar on the spot. He identified the appellant who was standing on the door at the time of the trial and he has also identified MO1 produced before the court. 10. He has further testified that after the detection of the offence, he was holding the charge of the office, he himself registered crime. Ext.P3 is the OR in that regard. He has produced the appellant and the contraband articles before **CRL.A.No. 1109 of 2006** 8 the court along with Ext.P3 OR, Ext.P1 is the arrest memo and Ext.P2 is the mahazar. All these documents were reached before the Magistrate on 05.06.1999 itself without any delay. Ext.P4 is the remand application which evidences the production of the appellant before the Magistrate at his residence at about 9.30 p.m. on 05.06.1999 itself without any delay. Ext.P5 is the property list, which shows MO1 and the sample bottle produced before the Magistrate on the date of detection itself. Further, the defence has pointed out that MO1 Can did not contain any label alleged to have affixed by PW1 after the detection of the offence. PW2 mahazar would reveal the mode of detection of the offence and the subsequent step which was taken on the spot of seizure including the taking of the sample, sealing and labelling of the sample bottle and the Can etc. 11. In addition to that, Ext.P5 property list prescribes the Can and sample bottle both sealed and labelled. PW1 was cross examined **CRL.A.No. 1109 of 2006** 9 elaborately by the defence. But, he withstood in the cross examination. There was a suggestion on the part of the defence that MO1 Can was abandoned by somebody and it was collected from KIP canal and the accused has falsely arrested from his house and implicated in this case. But this fact has been denied by PW1. PW2 is the Preventive Officer, who accompanied PW1 for detecting the offence. PW2 has also given evidence in accordance with the evidence of PW1. PW2 has also stated that the patrol party consisted of one Assistant Excise Inspector, one Preventive Officer, four Excise Guards and a driver. 12. He has also pointed out the correct place where the appellant was intercepted. PW3 and PW4 are independent witnesses, who had admitted their signature in Ext.P2 mahazar. They have testified to the effect that they had seen the excise men in front of the petty shop that the excise men had come in a jeep and the appellant was also with them and that it is there he affixed **CRL.A.No. 1109 of 2006** 10 his signature in the mahazar. Naturally, the independent witnesses in this kind of cases will turn hostile to the prosecution. They will not support to the effect that they have seen the incident, as alleged by the prosecution. It is a well settled fact that the court cannot acquit the appellant on the fact that the independent witnesses turned hostile to the prosecution. ## 13. Per contra, the evidence of excise officials will conspire confidence in the mind of the court. Of course their evidence can be accepted. The learned counsel for the appellant has submitted that the forwarding note has not been produced in this case. unless and until the forwarding note is produced, it is difficult to compare the sample seal affixed on the sample bottle which has sent for chemical analysis report. ## 14. In _**Krishnamma v. State of Kerala**_ ## _**[Judgment dated 09.10.2015 in Crl.Appeal No. 214**_ **CRL.A.No. 1109 of 2006** **==> picture [12 x 8] intentionally omitted <==** _**of 2006]**_ , it is held that the absence of sample seal in the space provided in the copy of the forwarding note is sufficient reason for presuming that the sample seal is not provided in the Original Forwarding Note. 15. So, in the absence of production of forwarding note will vitiate the trial, it is a bounden duty on the prosecution to establish that the sample bottle which was produced before this court would contain the sample seal and the impression of the sample seal would have been on the forwarding note and this forwarding note is to be send along with the sample bottle to the Chemical Analysis Laboratory. So,they have to compare the sample seal affixed on the forwarding note with the specimen impression of the seal on the bottle. Only after comparison, it is to be proved that the sample was sent to the Laboratory with tamper proof condition. Here, no such evidence was forthcoming in this case. Moreover, the PW5 Excise Inspector was conducted **CRL.A.No. 1109 of 2006** 12 investigation in this case, questioned the witnesses and recorded their statement. PW6 is the Inspector, who had verified the case records and laid charge sheet. Even though the prosecution has attempted to prove the case levelled against the accused, they have failed to establish that the offences were detected by a competent officer. In this case, PW1, who has detected the offence is only an Assistant Excise Officer. So, he is not an authorised “Abkari Officer”, to detect the offence. 16. In this connection, the learned counsel for the appellant has cited a ruling held in _**Mahesh M.K v. State (2017 (1) KHC 120)**_ , in which it has held that a Police Officer appointed as an “Abkari Officer” as per the notification is not an Abkari Officer everywhere, that he is an Abkari Officer only within his territorial jurisdiction, and that he cannot investigate into an offence committed outside his jurisdiction even **CRL.A.No. 1109 of 2006** 13 upon the orders of his superior Officers. The same view has been reiterated in the decisions of this Court reported in _**Saji @ Kochumon v. State of Kerala (2010 (3) KLT 471) and Narayankutty v. State of Kerala (2015(1) KHC 702).**_ 17. It has brought out that the offence was detected by an incompetent person, who is not an Abkari Officer empowered by the State Government. So, on these grounds also, the appellant is entitled to get an acquittal. Resultantly, the conviction and the sentence passed against the petitioner in S.C. No. 103 of 2005 by the Additional Sessions Court, (Adhoc), (Fast Track-II), Pathanamthitta is set aside. The bail bond executed by him shall stand cancelled and he is set at liberty forthwith. Sd/- **ANNIE JOHN, JUDGE** RKM