Criminal Appeal No. 1393 of 2003 (C)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 CRL.A.No. 1393 of 2003(C) -----------------------SC.6/2000 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANTS/ ACCUSED 1 AND 2: ----------------------------- 1. SATHYAN S/O. NARAYANAN NAIR, KALAPPURATH HOUSE, NAIMOOLA, PADINJARETHARA, WYNAD. 2. SAJU @ GEORGE S/O. SEBASTIAN, KANIYAMPARAMBIL HOUSE, NAIMOOLA, PADINJARETHARA, WYNAD. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/ COMPLAINANT/STATE: -------------------------------- 1. SUB INSPECTOR OF POLICE, PADINJARETHARA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## CRL.A.No. 1393 of 2003(C) ## ORDER ON CRL.M.A.8419/2003 IN CRL.APPEAL NO.1393/2003 DISMISSED. 23.9.2008 SD/- V.K.MOHANAN, JUDGE // TRUE COPY // P.A TO JUDGE. ## **V.K.MOHANAN, J.** ## **==================== Crl.Appeal No.1393 of 2003 - C =========================== Dated this the 23[rd] day of September, 2008.** ## **J U D G M E N T** Challenging the conviction and sentence against the accused imposed by the trial court under Section 55(a) of the Abkari Act, by the judgment dated 31.7.2003 in S.C.No.6/2003, the accused/appellants preferred this appeal. 2. The prosecution case is that at about 8.15 p.m., on 27.2.1999, PWs 1 and 2 noticed the accused persons transporting Karnataka Arrack in a plastic bag through the road situated at 16[th] mile in Padinjarathara. PW1 arrested the accused persons with the contraband article and suo motu registered a case in Padinjarathara police station. PW6 is the person who completed the investigation and laid charge. The cognizance was taken by the Chief Judicial Magistrate, Kalpetta in C.P.No.83/1999 and thereafter committed the case by the court as per its order dated 6.12.1999. The case was instituted in the Sessions Court as S.C.No.6/2000. When the accused persons appeared before the trial court pursuant to the process issued, a formal charge was 2 **Crl.Appeal No.1393 of 2003 - C** framed against them under Section 55(a) of the Abkari Act, to which they pleaded not guilty which resulted in the further trial of the case during which PWs 1 to 6 were examined on the side of the prosecution and documentary evidence such as Exts.P1 to P5 were marked. Material objects MO1 to 6 were identified and marked during trial. There was no evidence either oral or documentary from the side of the defence. On the basis of the contentions raised and the materials on record, the trial court formulated two issues for its consideration. Finally, the court below held that the accused are guilty of the offence charged against them and on finding of conviction, after hearing, each of the accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-(Rupees One Lakh only) each and in default of paying the fine, to undergo simple imprisonment for a further period of six months. It is the above conviction and sentence which are challenged in this appeal. 3. I have heard Mr.T.G.Rajendran, learned counsel appearing for the appellants and also the learned Public Prosecutor. 3 **Crl.Appeal No.1393 of 2003 - C** 4. To prove the detection of the crime and seizure of the contraband article, the prosecution mainly relied upon the evidence of PWs 1 and 2, two official witnesses and also two independent witnesses, namely, PWs 3 and 4. PWs 1 and 2 deposed in terms of the prosecution case and according to them they noticed the accused persons standing near a waiting shed with MOs 1 and 4 in their hands. According to PWs 1 and 2, MOs 1 and 4 bags contained 40 packets each of Karnataka Arrack and the capacity of each packet is 100 ml. According to PWs 1 and 2, they seized the contraband article as per Ext.P1 seizure mahazar. The details of the seizure is mentioned in Ext.P1. After the seizure and arrest of the accused, they came to the police station and PW1 suo motu registered Ext.P2 FIR and the accused were produced before the Magistrate Court on 5.3.1999. Ext.P3 is the chemical analysis report in pursuance to the forwarding of the samples, collected during the seizure, from the court on the basis of Ext.P5 forwarding note. PW6 conducted the investigation and filed the report. 4 **Crl.Appeal No.1393 of 2003 - C** 5. The learned counsel for the accused/appellants submitted that the prosecution has miserably failed to prove the seizure and to establish the case against the accused beyond reasonable doubt. In order to substantiate the above point, the learned counsel invited my attention to Ext.P1 seizure mahazar. In Ext.P1 seizure mahazar, it is stated that altogether samples were collected in six bottles, each having a capacity of 200 ml. As per Ext.P1 seizure mahazar, accused No.1 carried a bag which contained 40 packets, each of which having 100 ml. capacity and each such plastic cover contained 80 ml. Thus, according to PW1, as per Ext.P1 seizure mahazar, in each bottle 160 ml. of liquid from two plastic covers were collected. Thus, the quantity of liquid collected in the sample bottle at the time of seizure for chemical analysis is only 160 ml. It is also pointed out by the learned counsel that as per Ext.P3 certificate of chemical analysis issued by the chemical examiner to Government of Kerala, each sample bottle contained 200 ml. of clear colourless liquid. The contents of Ext.P3 quoted for convenience is as follows:- 5 **Crl.Appeal No.1393 of 2003 - C** _“six sealed bottles numbered 1 to 6 in the laboratory, each containing 200 ml. of clear colourless liquid alleged to be arrack involved in Crime No.18/1999 of Padinjarathara police station for chemical analysis”._ 6. Ext.P3 would further show that it is with reference to letter No.PR 49/1999 dated 4.6.1999 received from the Chief Judicial Magistrate, Kalpetta. They have received the article on 5.6.1999. It is also stated that the seal on each bottle was intact and found tallied with the sample seal provided. Thus, according to the learned counsel for the appellant there is no explanation as to how in the sample bottle received for chemical analysis in the laboratory, the quantity was found to be 200 ml when in Ext.P1 seizure mahazar, the quantity of the liquid in each sample bottle was found to be only 160 ml. The above fact itself is sufficient to cast doubt on the veracity of the prosecution case. The learned counsel further pointed out that even according to PW1 and as per the records available, the thondi article reached in the court only on 5.3.1999, though the seizure was effected on 27.2.1999. There is long delay in reaching the samples and the thondi article in the court below. It is also brought out in evidence that though 6 **Crl.Appeal No.1393 of 2003 - C** the articles were seized on 27.2.1999, the same was with PW1 and there was no proper accounting regarding the safe custody of the article. There is no evidence on record to show where the article was kept and who is the authority to whom the same was entrusted with and the documents for such entrustment etc. It was said that the police constables or police personnels were deputed for court duty. But no satisfactory explanation was forthcoming, for not sending the article to the court, immediately on the next day of the seizure. It is also noted that there is no explanation for not sending the article for more than four days from the date of seizure. So, according to the learned counsel, the absence of proper and satisfactory explanation for the delayed sending and production of the article before the court and the absence of proper account regarding the safe custody of the article have to be appreciated along with the fact that the chemical analysis report shows that the bottle which was received in the laboratory contained 200 ml. So the prosecution is bound to explain the increase of the contents by 40 ml. in the sample bottle. The non explanation regarding those aspects casts 7 **Crl.Appeal No.1393 of 2003 - C** serious doubt regarding the prosecution case. Learned public prosecutor on the strength of a decision of this court reported in _**Jose v. State of Kerala**_ (2007(2) KLT 202), submitted that, even if there is some delay in reaching the thondi article in the court ,it has to be ignored and the same cannot be found against the prosecution. It is true, in the above decision this Court has held that the delay of three days in reaching the samples and articles in the court is not a sufficient presumption against the prosecution. But the facts and circumstances of this case are entirely different one. Here, it is proved and brought on record that there is substantial variation regarding the quantity contained in the sample bottle which reached in the laboratory when compared with the quantity alleged to have seized by PW1 at the time of taking of the sample. Therefore, the above decision cannot be made applicable in the present case and is not helpful for the prosecution in this case. 7. Besides the above defect, it is to be noted that there is no independent evidence in support of the prosecution case. Even if, there is some defect regarding the seizure and delay in 8 **Crl.Appeal No.1393 of 2003 - C** sending the contraband article to the court, the same could have been ignored if the prosecution case is otherwise reliable and assured by independent evidence. In the present case, though PWs 3 and 4 were cited as independent witnesses, they were turned hostile to the prosecution. The learned counsel for the appellants pointed out that PWs 3 and 4 are not persons from the locality. In a prosecution of an offence under the Abkari Act, the prosecution has to adhere the rule which mandate that at least one of the independent witnesses for the seizure etc. must be from the locality itself. The above question does not rise for consideration since the so called independent witnesses turned hostile and they did not support the prosecution case. The question of acceptability of the evidence on the point argued by the learned counsel for the defence will arise only if the court is acting upon the evidence of such witnesses. Thus, it can be seen that the evidence of PWs 1 and 2 are not corroborated by any independent source and for that reason also, especially in the background of the defect mentioned earlier, the prosecution case is under the shadow of doubt. It is also the case of the learned 9 **Crl.Appeal No.1393 of 2003 - C** counsel for the appellants that even in Ext.P3 report, there is no opinion about the contraband article, said to have been seized from the possession of the accused, as Arrack. The learned counsel also submitted that if the prosecution case is that, the accused was found in possession of the Karnataka Arrack of the prescribed quantity, it is for the prosecution to prove positively that what seized from the possession of the accused, is Arrack. As the prosecution has miserably failed to prove the seizure, possession etc., beyond reasonable doubt, the accused are entitled to get acquittal. 8. In the light of the facts and circumstances and in the light of the above discussion, I am of the view that the prosecution has miserably failed to establish its case beyond reasonable doubt and the accused are entitled to get the benefit of doubt. Accordingly, the appeal is allowed. Appellants/accused are acquitted of all the charges levelled against them. The appellants are entitled to get back the amount of Rs.25,000/-, if they have already deposited the same in terms of the order dated **Crl.Appeal No.1393 of 2003 - C** 10 18.8.2003 of this court in Crl.M.A.No.8419/2003 in this appeal and the court below is directed to release the same. **V.K.MOHANAN JUDGE.** bkn/-