Isac v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937 CRL.A.No. 1074 of 2006 --------------------------- AGAINST THE JUDGMENT IN SC 253/2004 of ADDL.SESSIONS COURT (ADHOC)II, THODUPUZHA APPELLANT/ACCUSED: ---------------------------------------- ISAC, S/O.ISAC, KULATHOOR VEEDU, CHAKKUPALAM KARA CHAKKUPALAM VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT: ---------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA (CRIME NO. 225/2000 OF VANDANMEDU POLICE, STATION). BY PUBLIC PROSECUTOR SMT. LISHA. M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 1074 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of February, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Thodupuzha, for the offences under Section 55(a) and (i) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo rigorous imprisonment for three months for the offence under Section 55(i) of the Abkari Act. No separate sentence was passed for the offence under Section 55(a) of the Abkari Act. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. CRA 1074/2006 2 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW5, the Sub Inspector of Police, Vandanmedu Police Station, and his party were on patrol at Anakkara at about 8.30 p.m. on 23.12.2000. While so, PW5 received information that the appellant was selling liquor in his hotel. Therefore, after preparing Ext.P8 Search Memo and sending the same to the court, PW5 and his party reached that hotel. The appellant was not present there. On searching the hotel, 3.750 ml. of different varieties of liquor was found in the kitchen of that hotel. They are marked as MO. 1 to MO.6. PW5 has taken two samples of liquor from the opened bottles of brandy and whisky and sealed them. He has seized the aforesaid liquor including samples under Ext.P1 Search List in the presence of witnesses. Thereafter, he reached Vandanmedu Police Station with the liquor and CRA 1074/2006 3 the records and registered Crime No.225 of 2000 of that Police Station in respect of the occurrence. Ext.P4(a) is the FIR thus drawn by PW5. He has produced the liquor including the samples and the records before the Judicial First Class Magistrate's Court, Nedumkandam. Ext.P5 is the List of Property and Ext.P6 is a copy of the Forwarding Note. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. PW5 conducted the investigation of the case. He has questioned the witnesses and recorded their statements. During investigation, the appellant was arrested by PW5 and produced him before the court. PW6, the Circle Inspector of Police, Kattappana, has verified the investigation conducted by PW5. He has completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thodupuzha, and, from there, it was made over CRA 1074/2006 4 to the Assistant Sessions Court, Kattappana. Later, the case was withdrawn and made over to the Additional Sessions Court (Ad hoc)-II, Thodupuzha. 5. The court below framed a charge against the appellant alleging the offences under Section 55(a) and (i) of the Abkari Act. He pleaded not guilty of the charge. The prosecution examined PWs.1 to 8 and marked Exts.P1 to P11 and MO. 1 to MO.7 series on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. Exts.D1 and D2 were marked on the side of defence. No other evidence has been adduced by the defence. The court below, after considering the matter, found the appellant guilty of the offences under Section 55(a) and (i) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 6. The appellant has raised various contentions challenging the conviction and sentence passed against him. CRA 1074/2006 5 The prosecution case is that PW5 has detected the offence at about 8.30 p.m. on 23.12.2000 and he has seized the liquor along with the samples under Ext.P1 Search List in the presence of witnesses. But, PW5 has produced the properties including the samples so seized before the court only on 20.1.2001 along with Ext.P5 List of Property. It appears from Ext.P5 that that document was prepared by PW5 on 23.12.2000 itself. But, it was presented before the court along with the properties only on 20.1.2001. What was the reason for occurring such an inordinate delay in producing the properties before the court? PW5 stated before the court that the properties were under his safe custody till they were produced before the court. He himself has produced the properties before the court. He admitted that he has not produced any document showing the fact that the properties were under his safe custody. No other explanation has been offered by PW5 for not producing the properties before the court without occurring any delay. CRA 1074/2006 6 The explanation offered by PW5 is not at all a satisfactory one. He has produced Ext.P1 Search List and Ext.P4(a) FIR before the court on 26.12.2000. Then, what was the special reason for PW5 not to produce the properties along with the List of Property before the court on 26.12.2000? He has not explained any problems that faced by him and prevented him from producing those properties in time. Producing the contraband items along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. PW5 or PW6 did not tell the court as to what were the reasons for the delay that occurred in producing the properties before the court. A bald statement made by PW5 that the properties were under his safe custody till they were produced before the court cannot be accepted as a satisfactory explanation for the inordinate delay that occurred in producing the properties before the court. 7. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be CRA 1074/2006 7 explanation for the delay when there is delayed production of the property. The explanation thus contemplated is not a mere explanation but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW5 is not proper and satisfactory. 8. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in all the samples. It is also certified in Ext.P9 that the seals on the packet were intact and found tallied with the sample seal provided. Ext.P6 is a copy of the Forwarding Note submitted by PW5 for subjecting the samples to chemical analysis. The samples of liquor described in this document as sealed bottles. A copy of the letter sent from the court to the Joint Chemical Examiner is also enclosed with Ext.P6. It is specifically noted in this document that sample seal used to affix on the packet is also enclosed therewith. It is stated in CRA 1074/2006 8 Ext.P9 that the seals on the packet were intact and found tallied with the sample seal provided. The samples, as already noted, were produced by PW5 before the court in sealed bottles. Ext.P9 does not show that the seal affixed on those sample bottles was compared with the sample seal provided by the Investigating Agency. When the statement made in the covering letter issued by the learned Magistrate is considered along with the statement made in Ext.P9, more possibility was for a comparison of the seals affixed on the packet made by the Chemical Examiner with the sample seal provided from the court. For this reason itself, there is no assurance that the samples examined by the Chemical Examiner were really the samples of the liquor allegedly seized from the hotel run by the appellant. Such an assurance is possible only when the seals affixed on the sample bottles are compared with the sample seal provided by the Investigating Agency. The matters already stated with regard to the delayed production of the properties are CRA 1074/2006 9 applicable to the case of samples as well. The samples were also produced along with other properties only on 20.1.2001. Moreover, the Forwarding Note describing the samples was submitted before the court only on 24.2.2001. Therefore, for the reasons already stated in respect of the delayed production of the properties before the court, no sanctity could be attached to the examination of samples so belatedly produced before the court. Hence, Ext.P9 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. The only witness who has supported the prosecution version of occurrence is PW5. He was the Detecting Officer and the Investigating Officer. The independent witnesses, PWs. 1, 2 and 7, examined by the prosecution for proving the occurrence did not support the prosecution version of occurrence. They were declared hostile to the prosecution. Their evidence is of no use for the prosecution for proving their case against the appellant. PW5 has not seen the CRA 1074/2006 10 appellant at the time of the alleged detection of the offence. His knowledge about the appellant is only from the witnesses of the occurrence, according to him. How could, later, he locate or identify the appellant as the real person who has committed the alleged occurrence in this case. No witness said before the court that they have identified and shown the appellant either to PW5 or to PW6. In fact, there is no legally acceptable evidence with regard to the identity of the accused in this case. For these reasons also, the appellant is entitled to the benefit of doubt. There is absolutely no evidence to show that the appellant was selling Indian made foreign liquor in his hotel. Some bottles of Indian made foreign liquor of various varieties totalling 3.75 litres were allegedly seized by PW5 from the hotel of the appellant. That itself does not prove the fact that those bottles of liquor were kept there for the purpose of sale or as a matter of fact it was sold there. The prosecution does not plead a case that the appellant possessed a quantity of CRA 1074/2006 11 liquor more than what is permitted under the law. Such a charge is not made against the appellant. Moreover, a citizen is entitled to possess liquor after purchasing it from the Kerala State Beverages Corporation. It is the case of the prosecution that one bottle of liquor seized along with other bottles was meant for sale in Karnataka only. Is there any evidence to show that the appellant has brought that particular bottle or other bottles from Karnataka to this State? There is absolutely no investigation or evidence with regard to these aspects. When all these facts are considered together, this is a fit case where the appellant, at least, is entitled to the benefit of doubt. 10. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offences alleged against him. 11. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is CRA 1074/2006 12 acquitted of the offences under Section 55(a) and (i) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. The amount, if any, deposited by the appellant as directed by this Court shall be returned to him. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH** **JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRA 1074/2006 13