Jorson George v. State of Kerala and Manojkumar v. State of Kerala

Crl.A.No.1513 & 1514 of 2007 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943_ _CRL.A NO. 1513 OF 2007_ _AGAINST THE ORDER/JUDGMENT IN SC 637/2005 OF ADDITIONAL DISTRICT COURT (ADHOC), PALAKKAD_ ## _APPELLANTS/ACCUSED:_ _JORSON GEORGE, AGED 44 YEARS, S/O.GEORGE, VILANILATH VEED, PULAKKODE, CHELAKKARA, THRISSUR._ _BY ADV SRI.RASHEED C.NOORANAD_ ## _RESPONDENT/COMPLAINANT:_ _STATE OF KERALA, REP. BY THE EXCISE INSPECTOR MAVELIKKARA RANGE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ ## _OTHER PRESENT:_ _SRI. SUDHEER GOPALAKRISHANAN – PUBLIC PROSECUTOR SRI. RANJIT GEORGE – SR.PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.03.2022, ALONG WITH CRL.A.1514/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ Crl.A.No.1513 & 1514 of 2007 2 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 4[TH] DAY OF MARCH 2022 / 13TH PHALGUNA, 1943_ _CRL.A NO. 1514 OF 2007_ _AGAINST THE ORDER/JUDGMENT IN SC 637/2005 OF ADDITIONAL DISTRICT COURT (ADHOC), PALAKKAD_ ## _APPELLANTS/2ND ACCUSED:_ _MANOJKUMAR, S/O.GOPINATHAN NAIR, KOTTARATHIL VEED, PANAYIN, NOORANAD, ALAPPUZHA. BY ADVS. SRI.R.SURAJ KUMAR SMT.V.DEEPA SRI.SUNIL J.CHAKKALACKAL_ ## _RESPONDENT/COMPLAINANT:_ _STATE OF KERALA, SECISE INSPECTOR MAVELIKKARA RANGE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.03.2022, ALONG WITH CRL.A.1513/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ Crl.A.No.1513 & 1514 of 2007 3 ## **J U D G M E N T** These appeals are filed by the accused in S.C.No.637 of 2005 on the file Additional Sessions Judge (Adhoc) Court–I, Palakkad. Crl.A.No.1513 of 2007 is filed by the 1[st] accused, and Crl.A.No.1514 of 2007 is filed by the 2[nd] accused. The aforesaid Session Case arises from Crime No.65/2004 of Kollangode Police Station, registered for the offence punishable under section 55(a) of the Abkari Act. 2. The prosecution case is that on 20.03.2004 at about 18.30 hours, while the Sub Inspector of Police and his team were on patrol duty, they found one Maruti Esteem car coming from the eastern side to west through ChikkanamparaKottamedu Road, and they intercepted the said vehicle. In the said vehicle, two persons were travelling, and upon inspection of the vehicle, the police party could find 16 cans, each having capacity of 35 litres, filled with spirit. Accordingly, the persons travelling in the car were arrested and articles were seized. On the basis of the same, the aforesaid crime was registered, and Crl.A.No.1513 & 1514 of 2007 4 after completing the investigation, the Circle Inspector of Police submitted the final report before the Judicial First Class Magistrate Court, Chittur, where it was taken on file as C.P 107/2004. After completing the legal formalities, the matter was committed to Sessions Court, Palakkad and the same was made over to the Additional Sessions Court (Adhoc) I, Palakkad, where it was tried as S.C.No.637 of 2005. 3. In support of the prosecution, PW1 to PW6 were examined, Exts.P1 to P8 were marked and MOs 1 to 3 were identified. After completing the prosecution evidence, the appellants were examined under Section 313 Cr.P.C, and the incriminating materials brought out during trial were put to them. Both of them denied the same and pleaded innocence. No defence evidence was adduced. 4. On the basis of the materials produced by the prosecution, the learned Sessions Judge arrived at the conclusion that the appellants were guilty of the offences punishable under Section 55(a) of the Abkari Act, and they were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for nine months. These appeals are filed Crl.A.No.1513 & 1514 of 2007 5 by the accused persons challenging the aforesaid order of conviction and sentence. 5. Heard Sri.Rasheed C.Nooranad, learned counsel for the petitioner in Crl.A.No.1513 of 2007 and Sri.M.D.Suni, learned counsel for the appellant in Crl.A.No.1514 of 2007 and Sri.Ranjith George, learned Public Prosecutor for the State. The learned counsel appearing for the appellants contended that the prosecution failed to establish the guilt of the accused persons. Both of them have pointed out several discrepancies in the materials produced by the prosecution. One of the primary contentions was that the materials produced by the prosecution do not prove the tamper proof condition of the articles allegedly seized from their possession. The aforesaid contention was put forward mainly relying upon the lack of impression of specimen seal on Ext.P1 seizure mahazar and Ext.P8 forwarding note. In addition to the above, serious discrepancies in the manner of arrest were also pointed out. According to the learned counsel, Ext.P4 arrest memo contains a crime number even though the FIR was registered after the arrest. The decision rendered by this Court in **Rafeeque v. Sub Inspector of Police [2020 (3) KHC 715]** is relied upon Crl.A.No.1513 & 1514 of 2007 6 by the counsel for the appellants in support of the said contention. On the other hand, the learned Public Prosecutor would oppose the said contention. It is pointed out that the evidence adduced by the prosecution, particularly the depositions of PW1, PW4 to PW6 and the contemporaneous documents such as seizure mahazar, arrest memo etc., would clearly establish the prosecution case and hence the finding entered by the Sessions Court is legally sustainable. 6. When I examine the contentions raised from either side, the crucial aspect is the discrepancy pointed out by the learned counsel for the appellants regarding the seizure mahazer. Exhibit.P1 is the seizure mahazar prepared when the articles were seized. On examination of the same, it can be seen that the same does not contain the impression of the sample seal affixed on the articles seized, nor does it contain the description of the same. In **Moothedath Sivadasan and** **Another v. State of Kerala [2010 (3) KLT 471],** this Court has considered this aspect and observed that the absence of seal in the seizure mahazar is a crucial lacuna in the prosecution case since that would amount to failure on the part of the prosecution in establishing the tamper-proof condition of Crl.A.No.1513 & 1514 of 2007 7 the articles during the trial. In this case, it is evident that no such exercise has been done and therefore, the appellants are entitled to the benefit of doubt on the aforesaid ground. There is yet another aspect which fortifies the aforesaid finding. Ext.P8 is an office copy of the forwarding note by which the sample allegedly drawn from the liquor seized from the possession of the appellant, was sent for chemical analysis. In the forwarding note also, no such seal is seen affixed. In **Vijay** ## **Pandey v. State of Uttar Pradesh [2019(10) SCALE 129],** the Honourable Supreme Court observed that mere production of the chemical analysis report is not sufficient to establish the guilt of the accused. But on the other hand, the prosecution has to relate the sample subjected to chemical analysis with the sample allegedly drawn from the possession of the accused. The forwarding note is a crucial document by which the articles produced before the court were forwarded for chemical analysis. In the absence of the impression of the specimen seal on the forwarding note, it cannot be concluded that the sample collected from the appellants herein was the one produced for chemical analysis. In this case, the materials available on record are not sufficient to establish the link between the liquor Crl.A.No.1513 & 1514 of 2007 8 allegedly seized from the possession of the appellants and the sample subjected to chemical analysis. 7. Another lacuna pointed out by the learned counsel for the appellants is the discrepancies in the arrest. Since this is a case in which the arrest was made simultaneously with the seizure of the articles, the discrepancy as to the place and date of arrest is a matter of crucial importance. Failure to establish the arrest as claimed by the prosecution could be fatal to the prosecution case. Ext.P4 is the arrest memo prepared at the time of arrest of the appellants herein. In the said document, the place and time of arrest are mentioned as 18.40 hours on 20.03.2004. Ext.P5 is the FIR. From the said document, it is evident that the crime was registered only at 20.30 hours on the same day. Even though the crime was registered subsequently, the crime number is seen mentioned in Ext.P3 arrest memo. This is a serious discrepancy that goes against the prosecution case regarding the manner of the arrest. As mentioned above, since the manner of arrest is a matter of crucial importance, the aforesaid discrepancy cannot be treated lightly. In such circumstances, it is a serious lapse against the prosecution case. Crl.A.No.1513 & 1514 of 2007 9 In the aforesaid circumstances, the only conclusion possible is that the prosecution failed to establish the offence alleged against the appellants. Therefore, interference in the finding entered by the Sessions Court is warranted. In the result, these appeals are allowed. The judgment passed by the Additional Sessions Judge (Ad Hoc) Court-I, Palakkad in SC No.637 of 2005 dated 31.07.2007 is hereby set aside, and the appellants are found not guilty of the aforesaid offence. They are acquitted of all the charges. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/7.3.22