Dileepkumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942** ## **CRL.A.No.1693 OF 2006** **AGAINST THE JUDGMENT IN S.C. NO. 726/2003 DATED 04-08-2006 OF ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA** **C. P. No. 166/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **DILEEPKUMAR,S/O. SIVARAMAN NAIR, ASANPARAMBIL HOUSE, MANGARAM MURI, KONNI VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.SAJEEV KUMAR K.GOPAL SRI.BINOY VASUDEVAN** ## **- RESPONDENT/COMPLAINANT STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. D. CHANDRASENAN, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-11-** **2020, THE COURT ON 24-11-2020 DELIVERED THE FOLLOWING:** Crl. A. No. 1693 of 2006 2 ## **JUDGMENT** This is an appeal preferred under Section 374(2) of the Criminal Procedure Code, hereinafter referred to as the 'Cr.P.C'., challenging the legality and correctness of the judgment of the Additional Sessions Judge III, Pathanamthitta in S.C. No. 726/2003, dated 04.08.2006. The alleged incident has happened on 04.04.1999. According to the prosecution, that day at 12.30 A.M., while the Excise Inspector, Konni and party were engaged in patrol duty on the Chandanapally – Poonkavu road, at a place by name Vazhamuttom at Vallikkode village, in front of the tea shop of Gopinathan Nair, Biju Bhavan they came across the appellant and another moving in a motor cycle KL2E-8827; the appellant was travelling on the pillion seat of the vehicle carrying a black can of 5 litres of capacity. They were intercepted and when the content of the can was tested, it contained 4 litres of arrack. Thus the item was seized under a mahazar and both the passengers of the motor cycle were arrested and Crime No. 12/1999 of Excise Range Office, Konni was registered. Both the arrestees were produced before the court on the same day. 2. After investigation, the charge sheet was laid before the Crl. A. No. 1693 of 2006 3 Judicial First Class Magistrate - II, Pathanamthitta where the case was taken on file as C.P. No. 166/2001. After serving copies of records to accused and completing the formalities, the case was committed to the Sessions Court, Pathanamthitta from where it was made over to the trial court. 3. The appellant was the second accused in the case. He was defended by a counsel of his choice. After hearing counsel on both sides, when a charge was framed, read over and explained in Malayalam, he pleaded not guilty. He was on bail. 4. Prosecution examined five witnesses on their side. Exts. P1 to P7 were also marked. The material object was identified and marked as MO1. When questioned under Section 313(1)(b) of the Cr.P.C., he denied all the incriminating materials spoken against him. As it was not a case acquittable under Section 232 of the Cr.P.C., he was called upon to enter on his evidence in defence. But the appellant had no evidence to be adduced on his side. After hearing counsel on both sides, by the impugned judgment, the second accused was found not guilty and acquitted under Section 235(1) of the Cr.P.C., whereas the appellant was convicted under Section 8(1) and (2) of the Abkari Act and sentenced to undergo simple imprisonment for two years and Crl. A. No. 1693 of 2006 4 imposed a fine of Rs. 1 lakh with default sentence for three months. The said conviction and sentence are the subject matters of this appeal. 5. I heard counsel on both sides. The learned counsel for the appellant submitted that there is no satisfactory evidence to convict the appellant. PW3, the independent witness had turned hostile to the prosecution. The oral testimony of the Excise officials is highly interested and it is unsafe to proceed against the appellant on such a slippery evidence. He also pointed out that forwarding note is not produced or marked for the case. Hence, Ext.P7 report cannot be relied upon. 6. The trial court records were summoned and examined. PW1 is the Excise Range Inspector, Konni. According to him, on 04.04.1999, while himself and party were on patrol duty, on the Chandanapally – Poonkavu road, in front of the tea shop of Gopinathan Nair of Biju Bhavan, while they were checking vehicles, two persons were found proceeding from west to east on motor cycle No. KL-2E-8827, the person sitting on the pillion seat had carried a black can in his hands. The vehicle was intercepted; when stopped, the pillion rider threw the can on the ground and tried to make good from Crl. A. No. 1693 of 2006 5 the place. But he was caught and the content of the can was examined in the presence of independent witnesses, who were in the tea shop. The can having 5 litres capacity contained 4 litres of liquid. When its content was tested by smelling and tasting, it was found arrack, which was apprised to the independent witnesses also. The names of the passengers were ascertained, they confided that they were carrying the arrack to Maroorppalam at Konni for sale. The passengers were arrested from the spot and the items and the motor cycle were seized under Ext.P2 mahazar. After reaching back the Excise Range Office, Ext.P3 Crime was registered; that day itself the offenders were produced before court along with the contraband. 7. According to the witness, the appellant was the pillion rider, who carried the contraband in his hands. The mahazar was prepared at the spot itself in the light of the vehicle. The appellant and the other accused were produced before court on 04.04.1999 itself. A similar version can be seen from the testimony of PW2 T.R. Sivaraman Nair, preventive officer, who had accompanied PW1. The testimony of these two witnesses stand unshaken in cross examination. PW3 Gopinathan Nair admitted having attested the Ext.P2 mahazar. The alleged incident had happened in front of his Crl. A. No. 1693 of 2006 6 tea shop. The other attester is his son, who has since gone abroad. According to him, his son had signed on a white blank paper. But he denied having witnessed the incident. According to him, he signed the document as directed by the Excise Inspector. The witness was declared hostile to the prosecution and cross examined by the Public Prosecutor. PWs 4 and 5 are Excise officials, who conducted the investigation. 8. In other words, PW3 the independent witness turned hostile to the prosecution and the appellant was convicted basing on the evidence tendered by PWs 1 and 2, Excise officials. The learned Additional Sessions Judge was inclined to rely on the testimony of the official witnesses while convicting the appellant. There is no hazard in proceeding against an offender basing on the evidence tendered by official witnesses alone, if it is trustworthy and credible. Along with such an evidence and supporting documentary evidence besides the chemical examination report, the learned Judge found that the appellant was carrying arrack in his possession which is punishable under Section 8(2) of the Abkari Act. That means, there is no substance in the argument of the learned counsel that the court went wrong in punishing the appellant basing on the evidence of official Crl. A. No. 1693 of 2006 7 witnesses. 9. But the second argument is really formidable. It is true that the Ext.P7 report suggests that the sample contained 92.81% by volume of ethyl alcohol which was rectified spirit. All the same, even though PW1 claimed that he had sent a forwarding note for the examination of the sample by the chemical examiner, such an important document is wanting in evidence. If only the sample collected from the contraband allegedly carried by the appellant was forwarded to the chemical examiner under the authority of the court and found to be an offensive article, the charge can be held proved. It is the connecting link between the allegation and the proof. This court had held in umpteen number of cases that the forwarding note is an important piece of evidence towards the proof of charge. (See the decisions reported in **Unnikrishnan Nair v. State of Kerala [2020 (4) KLT 376]** , **Sadasivan @ Para v. State of Kerala and Another [2020 KHC 478]** etc.). It is the link evidence. The sample taken from the contraband and the laboratory report have to be correlated. The statement in the report of the chemical examiner that the seal on the bottle was intact and found tallied with the sample seal provided _ipso facto_ cannot be taken to place implicit reliance on the report. That Crl. A. No. 1693 of 2006 8 could be scrutinised in the background of the materials sent through the forwarding note. Here, such a forwarding note is not available. That aspect goes to the very root of the case, to the benefit of the appellant. To sum up, in the absence of forwarding note proving sending of the sample allegedly collected by the prosecution for getting the chemical examination report, the case cannot be held proved in the legal meaning of the term. This important aspect has been overlooked by the learned Additional Sessions Judge. It is a major infirmity crept in the prosecution case and thus the appellant is entitled to get the benefit of doubt. In the result, in reversal of the finding of conviction, the appellant is found not guilty and acquitted under Section 386(b)(i) of the Cr.P.C. His bail bond shall be cancelled. Fine amount, if any, realised shall be refunded. Sd/- **K.HARIPAL JUDGE** DCS/23.11.2020