James, S/o Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940** ## **CRL.A.No. 2074 of 2006** **AGAINST THE JUDGMENT IN SC 707/2004 of ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 22-09-2006** ## **APPELLANT/ACCUSED:** **JAMES, S/O JOSEPH, MUTTATHETTU HOUSE, 8TH MILE KARA, ANAKKARA VILLAGE.** **BY ADV. SRI.SOORAJ T.ELENJICKAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA THROUGH** **SUB INSPECTOR OF POLICE, VANDANMEDU, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY SRI. D. CHANDRASENAN, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.No. 2074 of 2006 2** ## **JUDGMENT** The appeal on hand is directed against judgment, dated 22.09.2006 of Additional Sessions Judge (Adhoc-II), Thodupuzha (for short 'the court below') in S.C. No.707 of 2004. 2. The appellant is the sole accused in the case on hand . He was found guilty by the court below and convicted and sentenced to undergo Rigorous Imprisonment for three years and pay fine of Rs.1,00,000/- (Rupees one lakh only) and in default to undergo Rigorous Imprisonment for 6 (six) months. 3. The facts of the prosecution case is discussed in brief hereunder:- At 6.48 P.M, on 27.05.2003, the accused was found travelling with 10 liters of arrack in a tyre tube in a motor cycle bearing Registration No. KL-6-9634 through ChellarkkovilChellarkovil Mettu Panchayath road. The offence was detected by CW6, the Sub Inspector of Police, Vandanmedu Police Station and accused was arrested then and there. The motor cycle ridden by the accused and the arrack found in his possession were seized after complying with the formalities as contemplated ## **CRL.A.No. 2074 of 2006 3** under the relevant provisions of the Abkari Act (for short the 'Act'). Samples have been drawn from the contraband and seizure mahazar was prepared from the spot. Thereafter, the accused and the properties seized from the spot were brought to Vandanmedu Police Station and crime was registered as 76/2003. Property list and Forwarding Note were also prepared. The accused, the properties seized and the documents prepared as above were forwarded to the the Judicial First Class Magistrate Court, Nedumkandam. The court received the properties and the accused. The accused was remanded to judicial custody. The samples received was forwarded to the Chemical Examiner's Laboratory for getting analysed. Investigation in the case was conducted by PW5. Concluding the investigation, a final report chargesheeting the accused for the offence under Section 8(1) punishable under Section 8 (2) of the Act was laid. The offence involved being exclusively triable by Court of Sessions, the case was committed to Court of Sessions, Thodupuzha and therefrom was made over to the court below for trial. Preliminary hearing was held and charge was framed. It was read over and explained to the accused and on himself pleading not guilty , trial was held. ## **CRL.A.No. 2074 of 2006 4** 4. On the side of the prosecution, witnesses were examined and documents were marked respectively as PWs 1 to 5 and Exts. P1 to 7. The properties were also marked as MOs I and II. On closure of evidence of prosecution, the accused was questioned under Section 313(1)(b) Cr.P.C with reference to incriminating circumstances brought in evidence by the prosecution against him. He denied all the incriminating questions put to him. A story of false implication was pleaded by him. According to him, cutting of a pathway through his property was attempted by his son Mr. Baby and his relatives, which was restrained by him. The Sub Inspector of Vandanmedu Police station visited the place and called him to the police station at the influence of Mr.Baby, who has high influence in politics. The Sub Inspector of Police compelled him to provide the pathway. He being not amenable for that was threatened by the Sub Inspector of Police stating that, a false case will be registered against him. He was summoned at the police station and made to stand there from morning till evening, against which, a complaint was preferred by him to the Deputy Superintendent of Police, Kattappana. The Deputy Superintendent of Police called the Sub Inspector of Police and ## **CRL.A.No. 2074 of 2006 5** restrained him from pursuing with further. The S.I of Police, Vandanmedu Police station was in grudge with the accused for the reason and therefore a false case was registered against him, planting the liquor and other articles in his vehicle. According to him, he is no way involved in the case as alleged by the prosecution. 5. Grounds having not been made out to record an order of acquittal, the accused was called upon to enter on his defence. He had examined a witness as DW1. On closure of the evidence, the learned Public Prosecutor and the learned counsel for the defence were heard. The oral as well as the documentary evidence available on record were appreciated. The court below arrived at a finding on the basis of oral as well as documentary evidence that, the accused is guilty for the offence under Section 8 (1) of the Act and is liable to be convicted and sentenced under Section 8 (2) of the Act. 6. Sri. Sooraj T Elenjickal, the learned counsel on behalf of the accused has contended that, the case on hand suffers from several illegalities liable to vitiate it. According to him, the evidence was not analysed and appreciated by the court below in proper manner and therefore the finding of guilt of the accused ## **CRL.A.No. 2074 of 2006 6** arrived at is incorrect. It is contended that, independent witnesses examined by the prosecution, as PWs 1 and 2 having been turned hostile to the prosecution, there is total want of independent evidence. The court below had relied on oral evidence of the official witnesses, examined as PWs 3 and 4 to reach a conclusion of guilt of the accused for the offence alleged against him. According to the learned counsel, the court below is highly unjustified in doing so and therefore interference is warranted. According to him the versions of the witnesses about the place of occurrence are discrepant, but the court below has relied on those. The learned counsel has also drawn the attention of the court to the delay occurred in production of properties before the Judicial First Class Magistrate Court, Nedumkandam. According to him, an inordinate delay of 45 days was occurred and explanation of any nature is not forthcoming from PW4 on that count. Drawing attention of this Court to _**Ravi v. State of Kerala and another [2011 (3) KHC 121]**_ it is contended that the unexplained inordinate delay would adversely affect the credibility of the case materially. According to the learned counsel, PWs 3 and 4 had spoken corroboratively about affixture of labels on the properties after seizure and sealing of the same ## **CRL.A.No. 2074 of 2006 7** from the spot, but Ext.P2 seizure mahazar does not spell a word on that. It is contended by the learned counsel that, for want of narration of those in Ext.P2, seizure mahazar, the oral evidence of official witnesses on that count could only be treated as exaggerated versions. The learned counsel has also drawn the attention of the court to Ext.P7, certificate of chemical analysis to contend that, the Police Constable No.2288 deputed to take the samples of contraband to the Laboratory for analysis was not cited as a witness and examined by the prosecution. Therefore, there is no link to connect the reach of the property from the court to the Chemical Laboratory. According to the learned counsel it is a serious lacuna to vitiate the prosecution case. The learned counsel has also relied on _**State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]**_ to rest his arguments as aforesaid and urged that interference of this Court is highly warranted. 7. The learned Public Prosecutor, has contended on the contrary that in the case on hand, the official witnesses,clearly corroborate in their versions on material aspects of the case. It is contended by the learned Public Prosecutor that, the versions of official witnesses being not discrepant on material aspects, it ## **CRL.A.No. 2074 of 2006 8** is proper and correct to rely on those to find guilt against the accused. According to him, the case on hand is not one, where, independent evidence is totally lacking. Independent witnesses were examined before the court below as PWs 1 and 2. Though they had denied to have witnessed the occurrence, admittedly signature was affixed in Ext.P2 seizure mahazar prepared from the spot of seizure. It is contended by the learned Public Prosecutor that, though the production of the properties were evidenced as delayed by 45 days, the properties after seizure were kept in safe custody of the detecting officer. According to him, a seal was also affixed by him in the properties from the spot after seizure. It is submitted by the learned Public Prosecutor that, when it is evidenced that the properties after seizure and prior to production before the court have been sealed and were kept by an official in safe custody, and when it is evidenced that the properties at the time of production before the court and the samples at the Chemical Examiner's Laboratory were in a tamper proof condition, there is no reason for a doubt to arise that the properties and samples produced before the court and the samples forwarded to the Chemical Examiner's Laboratory are those seized from the spot. Raising arguments as ## **CRL.A.No. 2074 of 2006 9** above, the learned Public Prosecutor has pleaded that the judgment is only liable to be confirmed. 8. Bearing the rival contentions in mind, this Court ventured to scrutinise the evidence on record to see whether evidence was appreciated by the court below correctly. It is relevant to notice that, independent witnesses have been cited by the prosecution and examined before the court. Section 36 of the Act provides for the procedure to be followed while holding search and it reads- “36. Searches how to be made:- All searches under the provisions of this Act shall be made in accordance with the provisions of the [Code of Criminal Procedure, 1973 (Central Act 2 of 1974);] [Provided that the persons called upon to attend and witness such searches shall include at least two persons neither of whom is an Abkari, Police or Village Officer].” 9. As is made clear from the proviso, the persons called upon to witness such searches shall include at-least two persons neither of whom is an Abkari, Police or Village Officer. Therefore, the proviso to Section 36 mandates that seizure held under the Act, must be witnessed atleast by two independent witnesses. In the case on hand, the prosecution has cited two independent witnesses and examined them before the court as PWs 1 and 2. ## **CRL.A.No. 2074 of 2006 10** Both PWs 1 and 2, during examination before the court have admitted to have affixed signatures in the seizure mahazar prepared from the spot. It is true that, they had denied to have seen the incident. But the signatures having been admitted as affixed, there is no merit in the argument of the learned counsel that the search in the case on hand is illegal for being held out of presence of independent witnesses. 10. It is true that the court below had relied strictly on the versions of the official witnesses examined before it as PWs 3 and 4. PW4 is none other than an officer, who had detected the offence. The version of PW4 was that, alongwith other policemen he was on patrol duty in a jeep bearing Registration No.KL-6-A222 on 27.05.2003, through places within the jurisdiction of the Vandanmedu police station. According to him, while negotiating a curve on route, a person was found proceeding against their jeep in a motorcycle with a sack loaded on it. PW3 is an officer in the company of PW4 at the relevant time. While being examined before the court, he has also deposed in a manner strictly in corroboration with that of PW4. According to PW3 and PW4, the motorcycle was intercepted. The sack loaded therein was opened and examined and found to contain some liquor. It ## **CRL.A.No. 2074 of 2006 11** was tasted and smelled by themselves in the presence of independent witnesses, who had gathered there then. They got themselves convinced that the liquor is nothing but, illicit arrack. The accused was arrested then and there and 180 ml of liquor was drawn as samples in two bottles. The remnant liquor and the samples were sealed. Those were seized after preparing a seizure mahazar. The properties as well as the accused were produced before the Vandanmedu Police Station and crime and occurrence report was prepared. Property list, forwarding note and remand report were also prepared. Those documents alongwith the seizure mahazar, the properties and the accused were produced before the Judicial First Class Magistrate Court, Nedumkandam. PWs 3 and 4 corroborate in aforesaid aspects while being examined. They were not discrepant even in aspects of minor nature. 11. Ext.P5 is the list of properties to evidence the production of the properties seized from the spot to the court. Though the list of properties bear the date 28.05.2003, endorsement of receipt of those was made by the Magistrate on 14.07.2003. The endorsement made by the Magistrate overleaf Ext.P5 reads:- ## **CRL.A.No. 2074 of 2006 12** “The MOS produced before this court in crime No.76/03 of VMP is being liquid in nature, all items except No.3 may be returned to keep under the safe custody of SHO VMP until further orders.” since the endorsement was on 14.07.2003, the properties can be taken to have produced before the court on the said date. From an endorsement of the Junior Superintendent available in the property list, it is disclosed that the properties were received by the court and item No.3 thereof was returned to the police station to be kept in safe custody of the Station House Officer, concerned. The sample was evidenced as forwarded to the Chemical Examiner's Laboratory by letter No.P.R.203/03, dated 14.07.2003. As evidenced from Ext.P7, the Certificate of chemical analysis, the samples were received by the Chemical Examiner on 15.07.2003. It is clear from Ext.P7 that, at the time when the samples were received by the Chemical Examiner's Laboratory, the seals on the packets were intact and tallied with the sample seal provided. 12. In this connection, it is relevant to have a look at Ext.P6, the forwarding note, where an impression of the seal was affixed in the column meant for that. Therefore, though ## **CRL.A.No. 2074 of 2006 13** description is not there in the seizure mahazar regarding the kind of seal affixed on the properties from the spot, specimen of the seal having been impressed on Ext.P6 forwarding not, the identification of the sample by the chemical examiner at the time when it was received by him, as one drawn from the contraband seized from the spot, cannot be doubted. PW4 has also tendered evidence that the properties after seizure were in his safe custody. Therefore in the case on hand, there is sufficient and satisfactory evidence regarding the seizure of the contraband liquor from the spot, sampling of the same, arrest of the accused, production of the sample and accused before the Vandanmedu Police Station, and later before the court concerned and production therefrom before the Chemical Examiner's Laboratory. The defence was unsuccessful in controverting the version of PW4, regarding safe custody of the sample for the period of delay in producing the same. When the seals on the packets were evidenced as intact and the uncontroverted oral evidence of PW4 indicate that the samples were kept in safe custody till date of production of those before the Chemical Examiner's Laboratory, there is no scope for a suspicion to arise about the identity of samples and its analysis by the Chemical ## **CRL.A.No. 2074 of 2006 14** Examiner. There is absolutely no room to doubt tampering of samples, solely for the reason that the Police Constable, who has transported the sample from the court to the chemical examiner's laboratory was not examined by the prosecution. In the aforesaid circumstances, _**Sasidharan v. State of Kerala [2007 KHC 3404]**_ cited by the learned counsel cannot be taken to have any bearing on the issues on hand and therefore reliance is not placed on it. 13. _**State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]**_ was the next decision cited by the learned counsel, to find fault with the prosecution in not examining the Police Constable, who had transported the properties to the Chemical Examiner's Laboratory. The case cited by the learned counsel is one which relates to an offence made punishable under the Narcotic Drugs and Psychotropics Substances Act, 1985. In the case referred, the properties seized include 3 tins of illicit Opium. Several samples were taken and sealed and given to one Mr.Jawan Singh of the Excise Headquarters on 24.01.1968 and a set of samples marked as 'A' were taken from the Excise Headquarters on 27.01.1968 and were handed over to the S.I Aidanram of Udia Mandir Police Station. Again on 29.02.1968, one Mr. Nathu Singh ## **CRL.A.No. 2074 of 2006 15** took samples therefrom and given to PW11 Hark Chand. Those were given for onward transmission to the Public Analyst. But the samples were not accepted by the Office of the Superintendent of Police, Jodhpur as the labels were not in order. In such a circumstance of labels found in disorder, the Apex Court held that examination of the person instructed for transporting the properties to the Public Analyst is material and for want of examination of such a person prosecution case is held vitiated. In the case on hand, evidence is clear to indicate that the properties were received by the court and by the Chemical Examiner's Laboratory with the seals thereon intact. There is nothing to indicate that the samples have not been produced before the court as well as, the Laboratory in a tamper proof condition. The decision cited supra is totally irrelevant in the circumstances available in the case on hand and therefore is not relied on. 14. Ext. P7, the certificate of chemical analysis obtained from Chemical Examiner's Laboratory establishes that the samples forwarded thereto have been examined by them and found to contain 22.58% of Ethyl Alcohol. Therefore, certificate of the Chemical Examiner has also obtained to the effect that, ## **CRL.A.No. 2074 of 2006 16** the liquor seized from the possession of the accused was nothing but illicit arrack, the possession of which is prohibited and made an offence punishable under the Act and for which he was charged by the court below. The court below has appreciated the evidence adduced by the prosecution in the correct perspective and arrived at the finding of guilt of the accused for the offence under Section 8(1) punishable under Section 8 (2) of the Act. The judgment under challenge is not vitiated by any illegality, impropriety or infirmity calling for interference by this Court. In the result, the appeal stands dismissed. The judgment under challenge is confirmed. The court below shall take measures to procure the presence of the accused and execute the sentence immediately. Sd/- ## **MARY JOSEPH** NAB **JUDGE**