Dharamarajan S/o Narayanan and Vinod S/o Balakrishnan Pulickal v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 29[TH] DAY OF JULY 2022 / 7TH SRAVANA, 1944 CRL.A NO. 2197 OF 2007** **AGAINST THE JUDGMENT DATED 9.10.2007 IN SESSIONS CASE NO.50 OF 2005 OF THE COURT OF 3RD ADDITIONAL SESSIONS JUDGE (ADHOC-I), THODUPUZHA** **APPELLANT/1ST ACCUSED:** **DHARMARAJAN S/O.NARAYANAN** **THURAVACKAL HOUSE, KADATHI KARA, MUVATTUPUZHA TALUK.** **BY ADVS. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, MUNNAR, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 15.07.2022, ALONG WITH CRL.A.2019/2007, THE COURT ON 29.07.2022 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.2019 & 2197 of 2007 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 29[TH] DAY OF JULY 2022 / 7TH SRAVANA, 1944 CRL.A NO. 2019 OF 2007** **AGAINST THE JUDGMENT, CONVICTION AND SENTENCE IN S.C.NO. 50 OF 2005 OF THE COURT OF III ADDITIONAL SESSIONS JUDGE (ADHOC-** **I), THODUPUZHA DATED 09.10.2007** **APPELLANT/ACCUSED NO.2:** **VINOD S/O.BALAKRISHNAN PULICKAL HOUSE, THRIKKARIYOOR KARA, KOTHAMANGALAM TALUK. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 15.07.2022, ALONG WITH CRL.A.2197/2007, THE COURT ON 29.07.2022 DELIVERED THE FOLLOWING:** 3 Crl.Appeal No.2019 & 2197 of 2007 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal Nos.2019 & 2197 of 2007 ----------------------------------------------------------Dated this the 29[th] day of July, 2022** ## **J U D G M E N T** The 3[rd] Additional Sessions Judge (Adhoc-I), Thodupuzha convicted and sentenced accused Nos.1 and 2 in Sessions Case No.50 of 2005 for an offence punishable under section 55(a) of the Abkari Act, 1077. They were sentenced to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs.1 lakh each. The 1[st] accused filed Crl.Appeal No.2197 of 2007 and 2[nd] accused filed 2019 of 2007 under Section 374(2) of the Code of Criminal Procedure, 1973 challenging the said judgment of conviction and order of sentence. 2. These appeals were admitted to file on 19.10.2007 and 15.11.2007 respectively. Execution of sentence imposed on both the appellants was suspended and they were released on bail on imposing conditions. 3. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor. 4 Crl.Appeal No.2019 & 2197 of 2007 4. Six accused were charged for commission of offence under Section 55(a) of the Abkari Act. The charges framed against them are that at 9.30 p.m on 14.08.2001, accused nos.1 to 3 were found transporting 420 liters of spirit contained in 12 plastic cans in an Ambassador car bearing Registration No.KL-7/2256 along the road near the DYSP office, Munnar and that accused nos.4 to 6 were aiding accused nos.1 to 3 in the transportation of spirit for which they were travelling in a car bearing Registration No.KL-5 D/4020. During trial, PWs 1 to 4 were examined and Exts.P1 to P14 were marked. M.O 1 was identified. The learned Additional Sessions Judge, in the light of the evidence on record, found accused nos.1 and 2 - the appellants alone guilty of the offence, but found accused nos.3 to 6 not guilty. 5. The learned counsel appearing for the appellants would submit that the only evidence based on which a conviction was recorded is the oral testimony of PW3 and the said evidence is so shabby and insufficient to enter a conviction. The learned counsel would submit that non-examination of the detecting officer, although for sufficient reasons, is fatal to the case of the prosecution and when PW3 feigned ignorance of many of the facts 5 Crl.Appeal No.2019 & 2197 of 2007 which are essential to prove the guilt, the court went wrong in finding the appellants guilty. 6. The learned Public Prosecutor would submit that considering the seriousness of the offence, the evidence on record has to be approached with pragmatism and as the evidence of PW3 is not tainted with any bias or prejudice, the same is enough to prove the guilt of the accused. It is true that the occurrence witnesses turned hostile to the case of the prosecution, but they admitted having signed Ext.P1 Seizure Mahazar. Further Ext.P13 chemical analysis report shows that the samples reached the laboratory in time, and on examination, the same was proved to be spirit. In the light of such evidence, the conviction of the appellants is justified, the learned Public Prosecutor submits. 7. The learned counsel appearing for the appellants further would contend that there occurred inordinate delay in producing the sample before the court and in the facts and circumstances of this case, particularly the non-examination of the detecting officer, the said delay is crucial. It is contended that in the light of the law laid down by this court in **Ravi v. State of Kerala and another [2011 (3) KLT 353]** , no reliance could be placed on Ext.P13, and 6 Crl.Appeal No.2019 & 2197 of 2007 for that reason also the appellants are entitled to an acquittal. 8. The case of the prosecution is that on 14.08.2001, accused nos.1 to 3 were spotted travelling in a car bearing Registration No.KL7/2256 along the road in front of the office of the DYSP, Munnar. On getting some information, the Sub Inspector of Police, Munnar (CW1) along with PW3, an additional Sub Inspector and other officials went there. On their inspection of the car, 12 plastic cans containing spirit were found in the car. The 1st accused passed on information to CW1 that the spirit has been transported for the 4th accused who has been waiting at another place. It is alleged that based on that information, the police parties took accused nos.1 to 3 to the place they pointed out and found accused Nos 4 to 6 waiting there in another car. It was in such circumstances, that all the six accused were arrested and the contraband seized under Ext.P1 Mahazar. Immediately the accused and contraband were produced before PW4, DYSP. It was he who produced the accused before the court. 9. The prosecution can rely upon the evidence of PW3 alone to prove its case. He stated before the court that CW1, the Sub Inspector of Police who headed the team which detected the 7 Crl.Appeal No.2019 & 2197 of 2007 offence was abroad in connection with some official assignment. He was therefore not examined before court. PW3 deposed that he along with the Sub Inspector and other police personnel reached the spot and found three persons sitting inside the car bearing Registration No.KL-7/2256. On inspection, 12 cans containing spirit were found kept inside the car. It was at 9.30 pm on 14.08.2001. He identified the appellants alone before the court. It is explained that he was examined in court after about six years of the date of occurrence, and therefore, he was unable to identify the indictees except accused nos.1 and 2. 10. Ext.P1 is the seizure mahazar. PW3 is not a signatory to Ext.P1. It was prepared and signed by the Sub Inspector of Police of course, in the presence of PW3. Two other signatories to Ext.P1 are PWs 1 and 2. They are cited and examined as witnesses to the seizure and also the arrest of the accused. Both of them did not support the case of the prosecution. They admitted their signature in Ext.P1. But their version is that they simply had signed some papers in the police station. They did not know for what purpose that document was prepared. They also denied having seen any seizure. The learned Public Prosecutor brought out Ext.P2 series 8 Crl.Appeal No.2019 & 2197 of 2007 contradictions in the evidence of PW1 and also Ext.P4 series contradictions in the evidence of PW2. Those contradictions would substantiate that both PWs 1 and 2 did not state the truth in court. The result is that their evidence is of no use as far as the case of the prosecution is concerned. 11. The evidence therefore available to prove the case of the prosecution is the oral testimony of PW3 alone. It is true that evidence of official witnesses may be enough to prove guilt of an accused. Before more than half a century, the Apex Court in **Aher** ## **Raja Khima v. State of Saurashtra, [AIR 1956 SC 217]** held: "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". ## 12. In **Tahir v. State (Delhi), [(1996) 3 SCC 338],** while dealing with a similar question, the Apex Court stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.” 9 Crl.Appeal No.2019 & 2197 of 2007 13. In **Baldev Singh vs State Of Haryana [(2015) 17 SCC 554]** the Apex Court reiterated that view. In the light of the law referred to above, evidence of PW3, if creditworthy, can be the basis for conviction, even in the absence of any independent evidence. 14. PW3 identified appellants alone before the court, but failed to identify accused nos.3 to 6. Going by the case of the prosecution, accused nos 1 to 3 were arrested together while sitting in a car bearing Registration No.KL-7/2256. Still PW3 identified accused nos. 1 and 2 alone, and not accused no.3. He has admitted that he has no prior acquaintance with any of the accused. After the date of arrest, he did not see any of them except in court. Taking that into account, identification of only two among the accused by PW3 creates serious doubt about the reliability of the witness. When there is absolutely no other evidence to render assistance to the oral testimony of PW3, it is quite unsafe to record a conviction trusting on his evidence alone. 15. The seizure was on 14.08.2001. Ext.P9 is the property list as per which the sample was produced before court. It is seen that on 10.10.2001, the sample was produced in court. PW3 did 10 Crl.Appeal No.2019 & 2197 of 2007 not know in whose custody the sample had been during the said period. Of course, it is seen from Ext.P13 that the sample was received in the laboratory with the seals on it intact. But there is absolutely no evidence as to what seal was affixed, who kept the samples during the period from its preparation till its production before the court, was it in safe custody and so on and so forth. In the said circumstances non-examination of the Sub Inspector of Police, CW1 became fatal to the prosecution. In **Ravi** (supra) this Court considered the impact of delay in producing the sample in court. It was held, “It is difficult for us to believe that PW4 had produced the properties on 25/08/1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW 4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature, can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical 11 Crl.Appeal No.2019 & 2197 of 2007 Examiner by change of hands in a tamper-proof condition. (Vide **State of Rajasthan v. Daulath Ram, [AIR 1980 SC 1314]** and **Valsala v. State of Kerala, [AIR 1994 SC 117]** . No conviction can be entered against the accused in a prosecution as the present one unless it is proved that 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.” 16. The prosecution may have a justifiable reason for nonexamination of the Sub Inspector of police. But when coming to the proof of the charge, such an excuse cannot have any place. Unless the prosecution adduces evidence to prove the guilt of the accused beyond a reasonable doubt, there cannot have a conviction. Evidence of PW3 alone does not prove at all that the sample prepared from the contraband allegedly found in the possession of the appellants was the sample really examined. 17. Taking all such aspects into account, I am of the view that there is total inadequacy of evidence to prove the guilt of the appellants beyond reasonable doubt. Therefore the conviction and sentence imposed on the accused would not sustain in law. The appeals are therefore liable to be allowed. Hence this appeals are allowed. The conviction and sentence 12 Crl.Appeal No.2019 & 2197 of 2007 imposed on the appellants are set aside. They are set at liberty. **Sd/P.G. AJITHKUMAR JUDGE** PV