Johny Joseph v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 9TH DAY OF JANUARY 2018 / 19TH POUSHA, 1939** **CRL.A.No. 704 of 2003** **AGAINST THE ORDER/JUDGMENT IN SC 78/2001 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC I), THODUPUZHA DATED 08-04-2003** **APPELLANT(S)/ACCUSED NO.1** **JOHNY JOSEPH, S/O. JOSEPH THACHILOTTU HOUSE, KIDANGOOR KARA KIDANGOOR VILLAGE BY ADVS.SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW** ## **RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, PEERMADU, IDUKKI DISTRICT REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.704 of 2003** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of January, 2018** ## **J U D G M E N T** This appeal is filed by the first accused in SC 78/2001 on the files of the Additional Sessions Court (Adhoc I), Thodupuzha. The conviction is under Section 55 (a) of the Abkari Act. 2. The facts necessary for consideration of this appeal is as follows: On 30.6.1997 at about 10.30 hours, a search was conducted in building No.1/500 at Kuttikanam and when the Excise officials reached there, the appellant herein ran away from therein. He was known to the excise party as he was formerly a manager of a Bar. On a search conducted in the building, 6 ltr and 600 m.l of coloured arrack, in two plastic cans and one bottle was seized. Apart from the same, two bottling machines, 2 gunny bags full of corks used for sealing bottles, three 200 m.l capacity plastic cans, which were having smell of arrack as well as twenty-five 35 ltr capacity plastic jars, five 100 ltrs capacity plastic jars, Crl.A.No.704 of 2003 2 25000 bottles of 180 m.l capacity in 98 gunny bags, about 200 cardboard cartons, 2 aluminum pots, 14 tin dishes, 16 wooden boxes, an iron table, an instrument which can be used to measure the strength of arrack, 15 bogus stickers, wooden handle for stirring arrack were seized as per Ext.P3 mahazar and Ext.P4 search list. After investigation complaint/final report filed. The prosecution altogether examined five witnesses and Exts.P1 to P7 were marked. On the side of the defence, DWs 1 to 3 were examined and Exts.D1 to D3 were marked. After appreciating the evidence, the court below convicted the appellant herein and acquitted accused Nos.2 and 3. The appellant was sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.1 lakh with default simple imprisonment for six months. The challenge is against the said conviction and sentence. 3. When the appeal came up for hearing, the main argument advanced before this court is that even though the alleged detection was on 30.6.1997, admittedly the 3 Crl.A.No.704 of 2003 article was produced before the court only on 5.9.1997, as per the evidence of PW3 and the second argument advanced before this court is that even though an analysis report was marked as Ext.P7, there is no legal evidence to show that it relates to the alleged contraband. The final submission made before this court is that no material object was seized from the place of incident. Then, the case of the prosecution that so many articles seized from the place cannot be believed without reliable evidence and materials. 4. The learned Public Prosecutor submitted before this court that here is a case where seized articles show that a massive scale illicit arrack preparation and bottling as well as coloured illicit IMFL preparation done in that premises. Under such circumstances when there is evidence to show that accused was seen at the place of seizure, there is nothing to interfere with the conviction entered into. 5. Surely, in this case, the prosecution got a case that there was large scale operation of preparation of illicit Crl.A.No.704 of 2003 4 arrack as well as packing were done. Admittedly there is a seizure of about 25,000 bottles each having a capacity of 180 ml. But at the very same time, it can be seen that the said articles were not marked during trial. The main reliance is made upon Ext.P1 property list. But that alone will not be sufficient. Even when the properties are destroyed, a procedure under Section 53A of the Abkari Act has to be followed. In this case, even the balance liquor was not seen marked in this case even though the detection was on 30.6.1997. It is also relevant to note that, as per the evidence of PW3, the properties were produced before the Magistrate only in the month of September, whereas the seizure was in the month of June. Then, inordinate delay is therein. The explanation given is that during the relevant period, “forthwith” production of seized contraband/articles were not used to be done. That will not be a sufficient explanation. As per the provisions of Cr.P.C., when a search and seizure is made it should be immediately produced before the court and in the case of seizure as per Crl.A.No.704 of 2003 5 the provision of the Abkari Act, it should be forthwith produced. In this regard, the dictum laid down by this court in **Raju v. State of Kerala [2012 KHC 877]** is relevant. 6. The next aspect is regarding sampling. Even though PW4 marked the analysis report, he got no case that he is the person who requested for analysis. His evidence is that “¨ çµØßæÜ æÄÞIßØÞÇÈB{áæ¿ ØÞOßZ çµÞ¿Äß ÕÝß øÞØÉøßçÖÞÇÈÏíAí ¥Ïºîá ÕøáJßÏ ØVGßËßAxí ¦Ãí §Äí. Marked as Ext.P7. çµÞ¿Äß ØÞOßZ ®¿áJá.” During cross examination he deposed that after taking sample, the contraband was taken back. But at the very same time, as per the judgment, it can be seen that even though it was produced before the court the contraband was given back for safe custody and there is nothing before the court to show that it was actually once again produced for the purpose of taking sample and thereafter again taken back. It is also relevant to note that there is no request for analysis or copy of the forwarding note was produced in this case. When the Crl.A.No.704 of 2003 6 material objects were not marked and the request for taking sample is not therein at least the thondi clerk should have been examined. Further the copy of the forwarding note is not marked in this case. It can be only held that the link in between the contraband and the analysis report is missing. 7. Surely here is a case where large quantity of bottles, labels etc were seized. But the liquor involved is only 6.600 ltrs. Even the OR. is seen registered by a Preventive Officer. A preventive officer is not entitled to register a crime under Section 40 or 41 of the Abkari Act, but he is only entitled to make seizure under Section 31 and 34 of the Abkari Act. It is a case where the excise department should have taken more care during investigation and conducting the case and should have brought on record the materials seized in this case. It can be only held that the prosecution failed to prove the offence beyond reasonable doubt. At this juncture it is also revealed that the detection was as back as in 1997 and now we are in 2018. No purpose will be served by setting aside the Crl.A.No.704 of 2003 7 judgment and sending back the matter to the trial court. Hence, the appeal is allowed setting aside the conviction and sentence imposed against the appellant. Bail bond stands cancelled. Sd/- ## **K.P. JYOTHINDRANATH, JUDGE** shg/