Christudas, S/o Nesayyan Nadar and Harees, S/o Das v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937 CRL.A.No. 261 of 2006 -------------------------- AGAINST THE JUDGMENT IN SC 902/2001 of ADDL.SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES,NEYYATTINKARA DATED 13-01-2005 CP 208/2000 of J.M.F.C.-III,NEYYATTINKARA ## APPELLANTS/IST AND 2ND ACCUSED.: ------------------------------------------------------------------ 1. CHRISTUDAS, S/O.NESAYYAN NADAR, MANATHOTTAM ROADARIKATHU VISHU BHAVAN, VELLARADA NEYYATTINKARA. 2. HAREES, S/O.DAS, AAYIKKONAM ROADARIKATHU PUTHENVEEDU, DO. DO. DO. BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A RESPONDENT/STATE/COMAPLAINANT.: -------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LILLIE LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 261 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 8[th] day of February, 2016 ## **JUDGMENT** The appellants were convicted by the Additional Sessions Court for the Trial of Abkari Act Cases, Neyyattinkara, for the offence under Section 55(a) of the Abkari Act. They were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rupees one lakh each and, in default of payment of fine, to undergo rigorous imprisonment for three months each. Challenging the conviction and sentence passed by the court below, the appellants have preferred this appeal. 2. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor appearing for the respondent. CRA 261/2006 2 3. The prosecution case is briefly stated as follows: PW4, the Sub Inspector of Police, Vellarada Police Station, and his party were on patrol at about 6.30 p.m. on 13.01.2000. When they reached Arattukuzhi, PW4 received reliable information that three persons were selling arrack in the property of one Ani. Soon, PW4 and his party reached there when the first appellant was seen with a black jerrycan kept near him, the second appellant was seen pouring arrack from another jerrycan into a glass tumbler and the third accused was seen receiving money from the consumers of arrack. Seeing the police party, the appellants and the third accused attempted to flee away. But, the police party stopped them there. On examining the jerrycans found with the appellants, arrack was found in them. Therefore, the appellants and the other accused were arrested by PW4 then and there preparing Arrest Memos. The 10 litre black jerrycan found with the first appellant was full of arrack. The other 5 litre black jerrycan found with the CRA 261/2006 3 second appellant contained about 4 litres of arrack. The glass tumbler was of 150 ml. capacity. PW4 sealed both the jerrycans and seized them and the glass tumbler under a Seizure Mahazar in the presence of witnesses. Thereafter, PW4 and his party reached Vellarada Police Station with the appellants and the other accused, properties and the records and registered Crime No.17 of 2000 of that Police Station in respect of the occurrence. The appellants and the other accused, the properties and the records were produced before the Judicial First Class Magistrate's CourtIII, Neyyattinkara. The investigation of the case was conducted by PW4. He has questioned the witnesses and recorded their statements. MOs. 1 to 3 are the material objects seized by PW4 from the place of occurrence. (The documents marked during the trial were not properly numbered). After completing the investigation, PW4 submitted the Final Report before the court. 4. The learned Magistrate, after complying with the CRA 261/2006 4 required legal formalities, committed the case to the Court of Session, Thiruvananthapuram, and, from there, it was made over to the Assistant Sessions Court, Neyyattinkara. Later, the case was made over to the Additional Sessions Court for the Trial of Abkari Act Cases, Neyyattinkara. The court below framed a charge against the appellants and the other accused alleging the offence under Section 55(a) of the Abkari Act. They pleaded not guilty of the charge. The prosecution examined PWs. 1 to 5 and marked Exts.P1 to P7 and MOs. 1 to 3 on their side. The appellants and the other accused were examined under Section 313 of Cr.P.C. They denied the incriminating circumstances shown against them. DW1 was examined on the side of the defence. The court below, after considering the matter, found the appellants guilty of the offence under Section 55(a) of the Abkari Act and convicted them thereunder. The third accused was found not guilty of the offence under Section 55(a) of the Abkari Act and hence, he was acquitted. The appellants CRA 261/2006 5 were heard on the question of sentence and imposed the sentence on them. 5. The appellants have raised various contentions challenging the conviction and sentence passed by the court below against them. PW4 is the Detecting Officer. PW3 is the Police Constable claimed to have accompanied PW4 at the time of detecting the offence. Both of them deposed supporting the prosecution version of occurrence. PW5 is the Property Clerk who dealt with the properties and sample in the court. PWs.1 and 2 were cited and examined as independent occurrence witnesses. They have not supported the prosecution case. The evidence of PW1 shows that the signature seen in the Seizure Mahazar as affixed by PW1 is not that of him. PWs.1 and 2 were declared as hostile to the prosecution. Whether, relying on the evidence of PWs.3 to 5, a conviction can be entered against the appellants for a serious offence under Section 55(a) of the Abkari Act is the question to be considered and answered. The properties CRA 261/2006 6 were produced before the court along with a List of Property referred to as Ext.P5 in the judgment of the court below. It can be seen from this document that the properties so produced before the court was on 14-01-2000. A submission to the effect that the properties may be ordered to be kept in the Vellarada Police Station until further orders was made by the office of the court on 14-01-2000 itself. Whether the properties produced were taken back by the police on that day is not evident from this document. Ext.P7 is the extract from the Property Register of the Judicial First Class Magistrate's Court-III, Neyyattinkara, which shows the entries concerning the properties produced in this case. It can be seen from this document that as per order dated 14-01-2000, the properties were kept in the Vellarada Police Station until further orders. The properties are described in the List of Property as follows:(1) 10 litre black jerrycan containing full of arrack. (2) 5 litre black jerrycan containing about 4 litres of arrack. (3) A 150 ml. CRA 261/2006 7 glass tumbler. The submission made by the office of the court or the endorsement appearing on the extract from the Property Register of the court does not show that the properties were so returned to the police after taking samples. The jerrycans containing arrack were not described as sealed either in Ext.P5 or in Ext.P7. There is no evidence to show as to whether the jerrycans containing arrack allegedly seized from the appellants were kept under safe custody after they reached Vellarada Police Station on 13-01-2000 and till they reached the court on the next day ie, 14-01-2000. That itself creates doubt about the genuineness of the case. Moreover, there is no evidence to show as to whether the properties were kept by the police under safe custody after returned them to the police and till they were again produced before the court by the police. Under whose custody the properties were kept during that period? Was it under safe custody? No answers are forthcoming with regard to these significant questions. CRA 261/2006 8 6. Ex.P7 shows that the samples of the contraband were entrusted with the police on 22-02-2000. PW5, the Property Clerk of the court, deposed that she had taken the samples from the bulk. When they were taken? Whether they were taken from the bulk produced by the police in this case? The evidence of PW5 is silent in regard to these significant questions. It is stated in the Seizure Mahazar (referred to as Ext.P2 in the judgment of the court below) that both the jerrycans were sealed. No sample of the seal so affixed is appearing in Ext.P2. Both PWs.3 and 4, while they were in the witness box, claimed that the jerrycans were sealed. If they were so sealed, that fact could have been stated in the List of Property, Ext.P5, or in the Property Register of which Ext.P7 is the relevant extract. But, the jerrycans were not described as sealed in these documents. If that is the position, no credibility can be attached to the evidence of PW5 that she has taken the samples from the bulk of arrack produced in this case. It is CRA 261/2006 9 reported in the Certificate of Chemical Analysis (referred to as Ext.P6 in the trial court judgment) that ethyl alcohol was detected in both the samples. It is also certified in this document that the seals on the bottles were intact and found tallied with the sample seal provided. Unless it is proved that the samples reached the Chemical Examiner were the samples really taken from the bulk of arrack seized from the appellants, no purpose will be served by producing and marking a certificate like Ext.P6. As already found, there is no assurance, even going by the evidence of PW5, that she had taken the samples from the bulk allegedly seized from the appellants. 7. A reference to the judicial pronouncements regarding these matters will be relevant and useful. 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 CRA 261/2006 10 of producing the same before Court on 13.9.98 (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, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand also, such a benefit is to be extended to the appellant. 8. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** held that the prosecution can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that CRA 261/2006 11 the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. When these decisions are applied to the facts obtained in the case on hand, the prosecution case is rendered doubtful entitling the appellants, at least, to the benefit of doubt. 9. The definite case of the appellants is that no such offence as alleged by the prosecution has taken place in the property belonging to one Ani and they were arrested from their workplaces. It is the case of the prosecution that the appellants along with another were possessing and selling arrack in the property belonging to one Ani. It is also the case of the defence that a person with the name Ani does not own or possess any property at the place where allegedly the occurrence has taken place. The prosecution has not adduced any cogent evidence proving the fact that the property where the offence allegedly has taken place CRA 261/2006 12 belongs to Ani. The evidence of the Village Officer concerned also does not prove that fact. These facts alone may not be fatal to the prosecution case. One more fact also has to be considered along with this. The Investigating Agency has not prepared a Scene Mahazar showing the place of occurrence. What was the reason for not preparing a Scene Mahazar in this case? There is no answer. The evidence of PWs. 3 and 4 are contradictory in certain material particulars. The Detecting Officer in this case could not seize a single pai from the appellants or from the other accused. The case of the prosecution is that the appellants and the third accused were selling arrack and the third accused was receiving money. The allegation that the third accused was receiving money was rightly found against the prosecution by the court below. These facts also throw a considerable shadow of doubt on the prosecution version of occurrence. When all these facts are considered together, it is unsafe to convict the appellants for a serious offence CRA 261/2006 13 under Section 55(a) of the Abkari Act purely based on the evidence of PWs.3 and 4. The appellants, at least, are entitled to the benefit of doubt. 10. For the foregoing reasons, the conviction and sentence passed against the appellants are liable to be set aside. They are entitled to an order of acquittal of the offence alleged against them. 11. In the result, the conviction and sentence passed against the appellants by the court below are set aside. They are acquitted of the offence under Section 55(a) of the Abkari Act. They are set at liberty. The bail bonds executed by them shall stand cancelled. This appeal is allowed. ## **Sd/-** ## **BABU MATHEW P. JOSEPH JUDGE** ks/avs True copy ## P.S.(Hr.Gr.)To Judge CRA 261/2006 14