CRL.A.966/2005 & CRL.A.888/2005 (Suresh v. Circle Inspector of Police, Varkala; Radhakrishnan v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942** ## **CRL.A.No.966 OF 2005** **AGAINST THE JUDGMENT IN SC NO.728/2001 OF THE ADDITIONAL SESSIONS COURT, FAST TRACK (ADHOC) NO.II,THIRUVANANTHAPURAM** ## **APPELLANT/2ND ACCUSED:** **SURESH, S/O.APPU, DEVAKI NIVAS, PANDAKASALA, SARKARA, CHIRAYINKEEZH.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 THE CIRCLE INSPECTOR OF POLICE, VARKALA POLICE STATION.** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.07.2020, ALONG WITH CRL.A.888/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL Nos.966 & 888 of 2005 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942** ## **CRL.A.No.888 OF 2005** **AGAINST THE JUDGMENT IN SC NO.728/2001 DATED 24-05-2005 OF THE ADDITIONAL SESSIONS COURT, FAST TRACK (ADHOC) NO.II,THIRUVANANTHAPURAM** **[CP NO.97/2000 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, VARKALA]** ## **APPELLANT/3RD ACCUSED:** **RADHAKRISHNAN S/O MADHAVAN, MANILA MANDIRAM VEEDU, PUTHUSSERYMUKKU, THOTTAKKADU, KARAVAKAM.** **BY ADVS. SRI.M.BALAGOVINDAN SRI.M.R.SASITH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B. JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.07.2020, ALONG WITH CRL.A.966/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL Nos.966 & 888 of 2005 3** ## **JUDGMENT** **[ CRL.A.966/2005, CRL.A.888/2005 ] Dated this the 7th day of July 2020** … **The above two appeals are filed by the 2[nd] and 3[rd] accused in S.C. No.728 of 2001 on the file of the Additional Sessions Court, Fast Track (Adhoc) No.11, Thiruvananthapuram.** **2. The Circle Inspector of Police, Varkala charge sheeted three accused alleging offence punishable under Section 8(2) of the Abkari Act. The case was committed to the Sessions Court. Subsequently, the first accused absconded and his case was split up. Second and third accused faced trial. After the trial, they were convicted and sentenced under Section 8(2) of the Abkari Act. The second and third accused filed the above appeals. Since the appeals are filed against the same judgment by the accused in the same case, I am disposing of these two appeals by this common judgment.** ## **CRL.APPEAL Nos.966 & 888 of 2005 4** **3. The prosecution case is that, the first and the second accused were the licensees of TS No.45 of Varkala Excise Range for the period 1999-2000 and the third accused was the salesman of the said toddy shop. On 19.8.1999 at 6 p.m., PW5 Circle Inspector of Police, Varkala conducted search in the above said toddy shop and seized MO1 series plastic covers containing arrack kept in the MO2 black plastic kit in the store room of it along with MO4 glass and MO5 series currency notes. The third accused who was found in the store room with a glass in his hand was arrested then and there and the seized articles were taken into custody by describing it in Ext.P2 search list. Seizure was in the presence of the third accused and PW1 Thulasi. Seizure of the contraband was after collecting the sample and sealing the same.** **4. On appearance before the trial court, the trial court framed a charge under Sections 8(1) and (2) of the Abkari Act.** **5. To substantiate the case, the prosecution examined PW1 to PW5. Exhibits P1 to P12 are the** **CRL.APPEAL Nos.966 & 888 of 2005 5** **documents marked on the side of the prosecution. DW1 and DW2 are the witnesses examined on the side of the defence. D1 and D2 are the documents marked on the side of the defence. MO1 to MO5 are the material objects.** **6. After going through the evidence and documents, the trial court found that, accused Nos.2 and 3 committed the offence under Section 8(1) and (2) of the Abkari Act and they were sentenced to undergo Rigorous imprisonment for a period of 4 ½ years each and to pay a fine of Rs.1,00,000/- each under Section 8(2) of the Abkari Act. In default of payment of fine, they are directed to undergo Simple imprisonment for a further period of six months each. Aggrieved by the conviction and sentence, these Criminal Appeals are filed.** **7. Heard the learned counsel for the appellants and the learned Public Prosecutor.** **8. The learned counsel for the appellants submitted that, the admitted case of the prosecution is that, the Circle Inspector of Police searched** **CRL.APPEAL Nos.966 & 888 of 2005 6** **building No.KPIII/61 of Karavaram Village, Thottakkadu desom where toddy shop bearing No.TS 45 was situated. The Counsel submitted that, in the light of Ext.D2, the case of the prosecution is unsustainable. According to the counsel, the toddy shop No.45 of Varkala Excise Range was functioning in a different building.** **9. The learned Public Prosecutor submitted that, there is oral and documentary evidences to prove the case against the accused. The Public Prosecutor also submitted that, it is a case where accused were trying to sell arrack from a toddy shop and the same is a serious offence. Hence, this Court may not interfere with the conviction and sentence imposed on the appellants.** **10. The point for consideration in this case is whether the accused committed the offence punishable under Sections 8(1) and (2) of the Abkari Act.** **11. The admitted case of the prosecution is that, PW5 and his police party searched building bearing No.KPIII/61 of Karavaram Village, Thottakkadu** **CRL.APPEAL Nos.966 & 888 of 2005 7** **desom at Puthusseri Mukku. Exhibit P2 search list will show the same. The prosecution has not produced any material to show that, the toddy shop bearing No.45 of Varkala range is situated in building No.KPIII/61. The prosecution has produced Ext.P6 to Ext.P9 documents to substantiate their case. Exhibit P6 is a letter dated 22.8.1999 issued by the Excise Circle Inspector of Police, Attingal. In the letter, the details of the contractors of the toddy shop bearing No.45 for the period 1999-2000 are mentioned. It is mentioned that, one Muraleedharan and Suresh are the contractors of the said toddy shop and they are first and second accused respectively. Exhibit P7 is a report dated 28.8.1999 submitted by the Circle Inspector of Police, Varkala. Actually, it was submitted based on Ext.P6 letter. Except the same, nothing is mentioned in it. Exhibit P8 is a letter dated 3.9.1999 of the Village Officer. In the above letter, it is only stated that, toddy shop bearing No.TS 45 is situated in Karavaram Village, Block No.40 and in Survey No.119/6. The number of the** **CRL.APPEAL Nos.966 & 888 of 2005 8** **building is not mentioned in that document also. Exhibit P9 is the letter from the Secretary, Special Grade Karavaram Gramapanchayat. That was produced to show that, building No. KPIII/61 belongs to Radhakrishnan, Mahila Mandiram, Puthusseri Mukku. This will not show that, the toddy shop is situated in building No.KP111/61. Except these documents, there was no other documents produced by the prosecution to prove that toddy shop is situated in building No. KPIII/61.** **12. On the other hand, the defence produced Ext.D2. The second accused himself was examined as DW2. A perusal of Ext.D2 would show that, it is the relevant portion of the Register of licence of TS No.45. The above document will show that, the toddy shop bearing No.45 is situated in building No. KPIII/64. In the light of Ext.D2, the prosecution case will not stand. The search was conducted in building No.KPIII/61 in which, according to the prosecution, toddy shop No.TS 45 is functioning. But, as per Ext.D2, the toddy shop bearing No.TS 45 in the** **CRL.APPEAL Nos.966 & 888 of 2005 9** **name of second accused and two others are situated in building No.KPIII/64. There is no explanation for the prosecution to Ext.D2. Exhibit D2 is not even denied by the prosecution. In such circumstances, the second accused who was the appellant in Criminal Appeal No.966 of 2005 cannot be convicted because there was no evidence to connect the second accused in this case. As far as the third accused is concerned, he is alleged to be the salesman of the shop. According to the prosecution, samples were taken from building No.KPIII/61 and forwarded the same to the Chemical Examiner. It is the fundamental duty of the prosecution to prove all the links starting from the seizure of the contraband article till it reaches in the hands of Analyst. In such situation, the forwarding note is important. Exhibit P5 is the forwarding note. On a perusal of Ext.P5 forwarding note will show that, it is silent about the name of the person with whom the sample was sent. There is no endorsement of date in Ext.P7. Even though, the learned Magistrate put his signature, the date is not** **CRL.APPEAL Nos.966 & 888 of 2005 10** **mentioned by the learned Magistrate. Exhibit P10 is the certificate of chemical analysis. In Ext.P10, it is stated that, the Chemical Examiner received the sample on 17.9.1999 through one Police Constable bearing No.8255. His name is not mentioned in it. He is not examined. Moreover, Exhibit P5 forwarding note is silent with regard to the name of the person with whom the sample was sent. This Court in Kumaran v. State of Kerala [2016 (4) KLT 718] held as follows:** _**“There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to**_ ## **CRL.APPEAL Nos.966 & 888 of 2005 11** _**with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by**_ **CRL.APPEAL Nos.966 & 888 of 2005 12** _**the courts below cannot be sustained.”**_ **In the light of the above decision, I think, the accused is entitled the benefit of doubt.** **Hence, These Criminal Appeals are allowed. The conviction and sentence imposed on the appellants (2[nd] and 3[rd] accused) as per the judgment dated 24.5.2005 by the Additional Sessions Court, Fast Track (Adhoc) No.II, Thiruvananthapuram are set aside. The appellants are set at liberty. Bail bond, if any, executed by the appellants are cancelled.** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**