Jose Vazakkala House, Meloor v. State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 4TH DAY OF AUGUST 2014/13TH SRAVANA, 1936 CRL.A.No. 238 of 2004 (A) -----------------------------AGAINST THE JUDGMENT IN SC 104/2002 of III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK COURT NO.I, THRISSUR DATED 07-01-2004 ------- APPELLANT/ACCUSED: ------------------------- JOSE VAZAKKALA HOUSE, MELOOR. BY ADV. SRI.C.HARIKUMAR RESPONDENT/COMPLAINANT: --------------------------------- STATE REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. BY ADV. PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J. --------------------------------------------Criminal Appeal No. 238 of 2004 --------------------------------------------** Dated this the 4[th] day of August, 2014 ## **J U D G M E N T** The appellant was convicted by the Additional Sessions Court (Adhoc)-III, Thrissur, for the offence under Section 55(i) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1,00,000/ (Rupees one lakh) and, in default of₹ payment of fine, to undergo rigorous imprisonment for three months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 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: PW1, the Sub Inspector of Police, Koratty, and his party were on patrol at Pettangadi in Meloor Village at 7.25 p.m. on 23-05-2000. While so, the appellant was seen standing near the canal carrying a plastic bag and a glass tumbler. Crl. A. No.238/04 -2- Seeing the police party, hiding the glass tumbler, the appellant attempted to flee away. But, he was stopped there by the police party. On examining the bag in his hand, 4 bottles of 750 ml. each and a 375 ml. bottle containing full of Indian made foreign liquor were found in it. Therefore, the appellant was arrested by PW1 at 07.30 p.m. after preparing Ext.P3 Arrest Memo. Ext.P4 is the Arrest Notice served on the wife of the appellant. Four 750 ml. bottles were marked 1 to 4. Two samples of 180 ml. each were drawn in two bottles from bottle No.1. Similarly, two samples of 180 ml. each were drawn in two bottles from bottle No.3. All those bottles including the sample bottles were sealed. Those bottles, the plastic bag and the glass tumbler were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 reached Koratty Police Station with the appellant, properties and the records at 08.30 p.m. on that day and registered Crime No.133 of 2000 of that Police Station. Ext.P2 is the FIR thus drawn by PW1. PW1 had prepared Crl. A. No.238/04 -3- Ext.P6 Scene Mahazar in the presence of witnesses. He had produced the appellant along with Ext.P5 Remand Report before the Court. He had also produced the properties including the samples along with Ext.P7 List of Property before the Court. PW4, the Village Officer, Meloor Village, had prepared Ext.P8 Location Map of the place of occurrence. PW1 had conducted the investigation of the case. CW9, the Sub Inspector of Police, Koratty Police Station, had prepared and submitted the final report before the Judicial First Class Magistrate's Court, Chalakudy. 4. The learned Magistrate committed the case to the Court of Session, Thrissur, and, from there, it was made over to the Additional Assistant Sessions Court, Irinjalakkuda. Later, the case was transferred to the Additional Sessions Court (Adhoc)-III, Thrissur. The court below framed a charge against the appellant alleging the offence under Section 55(i) of the Abkari Act. He had pleaded not guilty of the charge. The prosecution Crl. A. No.238/04 -4- examined PWs.1 to 4 and marked Exts.P1 to P9 and MO1 series to MO4 on their side. The appellant was examined under Section 313 of Cr.P.C. Ext.D1 was marked on the side of the defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(i) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the prosecution case that the appellant was found in possession of 3.375 litres of Indian made foreign liquor at 7.25 p.m. on 23-05-2000 at Pettangadi in Meloor Village and he was arrested then and there and seized the liquor and other items from that place itself by PW1, the Detecting Officer, under Ext.P1 Seizure Mahazar in the presence of witnesses. PW1 deposed before the court supporting the prosecution version of occurrence. PW2, an independent witness cited by the prosecution, did not Crl. A. No.238/04 -5- support the prosecution case. He was declared hostile to the prosecution. According to the prosecution, PW3, a Police Constable, accompanied PW1 at the time of detecting the offence. PW3 also supported the prosecution case. Whether the evidence given by PWs.1 and 3 can be relied on for finding the appellant guilty of a serious offence under Section 55(i) of the Abkari Act is the question to be considered. 6. It is the prosecution case that the occurrence in this case had taken place at the place shown in the Scene Mahazar and in the Location Map. Ext.P6 is the Scene Mahazar prepared by PW1 showing the place of occurrence. It was prepared in the presence of two witnesses. They were cited as CWs.4 and 5 for proving Ext.P6. But, both of them were not examined. It is also the case of the prosecution that the place of occurrence was shown to PW1 by PW2. If the offence had been detected by PW1 as claimed by him, there was no necessity at all for showing him the place of occurrence by PW2. Be that Crl. A. No.238/04 -6- as it may. PW2 did not say anything about the place of occurrence and the preparation of Ext.P6 Scene Mahazar. Ext.P8 is the Location Map specifically showing the place of occurrence prepared by PW4, the Village Officer, Meloor. The date of preparation of Ext.P8 is not in that document. It is seen that Ext.P8 reached the court only on 18-12-2001, i.e., about one year and seven months after the alleged occurrence. That the preparation of Ext.P8 Scene Mahazar by PW4 will not prove that the occurrence had taken place at the spot shown in that document. As already pointed out, PW2 did not say anything about the place of occurrence and the preparation of Ext.P6 and CWs.4 and 5 cited for proving the preparation of Scene Mahazar were not examined. Therefore, the claim of the prosecution that the occurrence had taken place at the place shown in Ext.P6 Scene Mahazar or in Ext.P8 Location Map cannot be accepted as proved. 7. The prosecution case is that the appellant was arrested by PW1 soon after detecting the offence Crl. A. No.238/04 -7- preparing Ext.P3 Arrest Memo from the place of occurrence itself. It is also their case that the liquor was seized and Ext.P1 Seizure Mahazar was prepared at that place itself. Can they be believed? Ext.P5 is the Remand Report prepared by PW1. The appellant was produced before the court along with Ext.P5. It can be seen from this document that after arresting the appellant and seizing the properties, PW1 reached Koratty Police Station with the appellant, properties and Ext.P1 Seizure Mahazar and thereafter registered the case. Ext.P2 FIR is also supporting the same. The deposition of PW1 also supports that fact. Since the Crime No.133 of 2000 was registered by PW1 only after he reached that Police Station, it was an impossibility for him to incorporate the details of the case registered by him in Ext.P3 Arrest Memo. Because, at the time of preparing Ext.P3, the crime was not registered and the details of the same were not available for incorporating in Ext.P3. This fact indicates that Ext.P3 Arrest Memo was not prepared at the place of occurrence Crl. A. No.238/04 -8- as claimed by the prosecution, but prepared at the Koratty Police Station after registering Ext.P2 FIR. PW1 had not given any explanation in respect of the incorporation of the details of the Crime No.133 of 2000 in Ext.P3 while he was in the witness box. Moreover, it is not stated in Ext.P1 that the appellant was arrested from the place of occurrence preparing an Arrest Memo. 8. It is the prosecution case that the properties were seized from the scene place itself after preparing Ext.P1 Seizure Mahazar. The evidence of PW1 also supports such a case of the prosecution. Can it be believed? The version of PW3 is different. According to him, Ext.P1 Seizure Mahazar was prepared after reaching the Police Station with the properties. The evidence so given by PW3 cuts at the root of the prosecution case that Ext.P1 Seizure Mahazar was prepared at the scene place itself by PW1. Another aspect also has to be considered along with this. Ext.D1 is the copy of Ext.P1 served on the appellant. PW1 stated that the copy so served on the appellant was the Crl. A. No.238/04 -9- copy prepared at the Koratty Police Station. He further admitted that witnesses had signed in Ext.D1. Ext.D1 is a carbon copy of Ext.P1. A perusal of Ext.P1 and Ext.D1 would go to show that both of them were prepared at the same time. If that be so, how can PW1 claim that he had prepared Ext.P1 Seizure Mahazar at the scene place itself. He himself admits that Ext.D1 was prepared at the Police Station and it contains the signatures of witnesses. When all these facts are considered together, it naturally follows that the case of the prosecution that the appellant was arrested at the place shown in the Scene Mahazar and the Seizure was effected after preparing Ext.P1 Seizure Mahazar at the scene place itself cannot be believed. The appellant, at least, is entitled to the benefit of doubt. 9. I have already found that the place of occurrence claimed by the prosecution remains not proved. PW1 stated that a distance of 50 metres was visible from the place of occurrence. But, PW4, the Village Officer who had prepared Ext.P8, deposed that a distance of about 200 Crl. A. No.238/04 -10- metres was visible from the place of occurrence. So, the case pleaded by PW1 with regard to the distance visible from the place of occurrence is falsified by the evidence of PW4. The case of PW3 is different from the case of PW1 and PW4. He stated that it was not possible to see the appellant from a distance of 100 metres. 10. It is stated in Ext.P1 that the offence was detected at 7.25 p.m. while PW1 and his party were on patrol. PW1 stated also that the occurrence was at 7.25 p.m. According to him, light was there at that time. He had no case that Ext.P1 Seizure Mahazar or Ext.P3 Arrest Memo were prepared in the light provided by some other means. Both PWs.1 and 3 did not say anything about other source of light then. Whatever be the claim of PW1, it was an impossibility for him to prepare two documents like Exts.P1 and P3, after detecting the crime at 7.25 p.m., at the place of occurrence itself for want of required light. This also indicates that these documents were not prepared at the scene place as claimed by the Crl. A. No.238/04 -11- prosecution. 11. It is the definite case of the prosecution that the appellant possessed the Indian made foreign liquor and a glass tumbler for the purpose of selling the liquor. PW1 stated that the appellant was seen carrying a bag containing the liquor and also holding a glass tumbler in his hand. It is stated in Ext.P1 that the sample bottles as well as the other bottles of liquor were sealed by PW1. PW1 deposed also that the samples as well as the other bottles were sealed. The seal so affixed was the official metal seal. The sample impression of that seal is not seen affixed on Ext.P1. PW1 had no case that he had forwarded a sample of that seal affixed on the samples to the court. He had also no case that a Forwarding Note had been submitted to the court affixing the sample of the seal. Forwarding Note was not marked in this case. Forwarding Note or its copy is not seen among the records of this case. The Property Clerk of the court was not examined. Ext.P9 is the Certificate of Chemical Analysis issued from Crl. A. No.238/04 -12- the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in all the samples. It is also noted in Ext.P9 that the seal on the bottles were intact and found tallied with the sample seal provided. Whose sample seal was so provided? In the light of the facts already adverted to, there is no assurance that the sample seal so referred to in Ext.P9 is the sample of the seal claimed to have been affixed by PW1 on the samples. It can also be the seal of the court. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner really examined the samples taken from the bulk allegedly seized from the appellant in this case. ## 12. This Court in **Rajamma v. State of Kerala (2014 (1) KLT 506)** has held as follows: “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical Crl. A. No.238/04 -13- examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” A Division Bench of this Court in **Ravi v. State of Kerala** **(2011(3) KLT 353)** has held that the prosecution can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamperproof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, Ext.P9 Crl. A. No.238/04 -14- Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 13. 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 offence alleged against him. 14. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 55(i) of the Abkari Act. He is set at liberty. The bail bond executed by the appellant shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** AS/kns //True Copy// P.A. To Judge Crl. A. No.238/04 -15-