Joy, S/O Kunjappan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 CRL.A.No. 2093 of 2003 -------------------------------(AGAINST THE JUDGMENT DTD.11.11.2003 IN SC.174/2001 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC-I), ALAPPUZHA EXCISE RANGE) .................... APPELLANT(S)/ACCUSED: --------------------JOY, S/O.KUNJAPPAN, PUTHUVAL COLONY, KOMMADY WARD, ALAPPUZHA. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): ----------------------STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 2093 of 2003** **----------------------------------------** Dated this the 30[th] day of September, 2011 ## **J U D G M E N T** The challenge in this appeal is against the judgment dated 11.11.2003 in S.C.No.174/2001 of the court of Additional Sessions Judge, Fast Track (ADHOC-I), Alappuzha at the instance of the accused therein since he is convicted and sentenced for the offence under Section 8 of the Abkari Act. 2. The prosecution case is that while the Excise Officers belonging to the Excise Enforcement and Anti-Narcotic Special Squad were on patrol duty, they saw the accused at about 5.30 p.m on 17.4.1999 on a public road leading to Alappuzha Cherthala Canal and the accused was carrying a big-shopper and on inspection of the same, it was found that the same contained 80 plastic covers and each cover contains 90 ml. of arrack and accordingly, the accused was arrested for having possessed and transported 7 litres and 200 ml. of arrack. On the basis of the above allegation, Crime No.19 of 1999 CRL.A.NO.2093 of 2003 :-2-: was registered in the Alappuzha Excise Range and on completing the investigation, charge was filed before the Judicial First Class Magistrate Court-I, Alappuzha and after taking cognizance based upon the above report, C.P.No.7/2001 was registered therein and as per order in the above proceedings, the learned Magistrate committed the case to the Sessions Court wherein S.C.No.174 of 2001 was instituted and thereafter, made over the same to the Principal Assistant Sessions Judge, Alappuzha and later, the case was recalled and made over the trial court for disposal. Thus, on appearance of the accused, a formal charge was framed for the offence under Section 8 of the Abkari Act after hearing the prosecution as well as the defence and when the charge was read over and explained to the accused, he denied the same and pleaded not guilty and consequently, the prosecution adduced its evidence consisting of the testimony of PWs.1 to 6 and the documents Exts.P1 to P3. Besides the above, MOs.1 to 7 (b) were marked. No evidence, either oral or documentary, was produced from the side of the defence. The accused denied the ## CRL.A.NO.2093 of 2003 :-3-: incriminating circumstances and evidence, which are brought out during the evidence of the prosecution, when the same put to him under Section 313 of Cr.P.C. Finally, the trial court has found that the prosecution proved its case and specifically found that the appellant had possessed and transported arrack on 17.4.1999 and accordingly, he is found guilty under Section 8 of the Abkari Act and convicted thereunder. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1 lakh and in default, he is directed to undergo rigorous imprisonment for a further period of six months. Set off was allowed under Section 428 of the Cr.P.C. It is the above conviction and sentence challenged in this appeal. 3. I have heard Sri.S.Shanavas Khan, learned counsel appearing for the appellant and Sri.K.S.Sivakumar, learned Public Prosecutor for the State. 4. The specific case of the prosecution against the appellant is that he was found in possession of 7 litres 200 ml. of arrack while CRL.A.NO.2093 of 2003 :-4-: transporting the same. Thereby, he committed the offence punishable under Section 8 of the Abakari Act. In order to substantiate the above allegations, the prosecution has adduced evidence both oral and documentary. Among the witnesses examined for the prosecution, PWs.1 and 2 are independent witnesses to prove the seizure of the contraband article from the possession of the appellant. PW3 is the Excise Inspector attached to the Excise Enforcement and AntiNarcotic Special Squad, Alappuzha who detected the crime. When PW3 was examined, he had deposed in terms of the prosecution allegation and Ext.P1 mahazar was got marked through PW3. Besides that, MOs.1 to 4, the empty plastic covers, MO5 - 76 plastic packets, MO6 big-shopper and MOs.7,7(a) and 7(b) Indian currency of 100 Rupees denomination were identified and marked through PW3. PW4 was the then Preventive Officer, who accompanied PW3 at the time of detection of offences. PW5 is another Excise Inspector who undertook the investigation and finally laid the charge. Ext.P2 chemical analysis report is marked though PW5. PW6 is the then CRL.A.NO.2093 of 2003 :-5-: Excise Range Inspector attached to Excise Range Office, Alappuzha through whom Exs.P3 crime and occurrence report was marked. As I indicated earlier, though PWs.1 and 2 were turned hostile, the other official witnesses of the Excise Department including PW3 who detected the offence, deposed in terms of the prosecution allegation. The learned Sessions Judge, after having considered the above evidence on record, found that the prosecution has succeeded in establishing the allegation against the appellant and accordingly, found him guilty under Section 8 of the Abkari Act. 5. Counsel for the appellant vehemently submitted that the trial court is wrong in its finding against the appellant and in favour of the prosecution, since there is no cogent and acceptable evidence on record in support of the above findings of the court below. On the strength of the decisions of the Supreme Court reported in **Valsala** v. **State of Kerala** [1993(2) KLT 550] and this Court reported in **Sathi** v. **State of Kerala** [2007(1) KLT SN 57(Case No.82)] and **Ravi** v. **State of Kerala** [2011(3) KLT 353], the learned counsel submitted CRL.A.NO.2093 of 2003 :-6-: that absolutely there is no evidence to show that the contraband article and the samples, which are alleged to have recovered from the possession of the appellant, have reached in the court safely without any room for tampering of the same since according to the learned counsel, there is no evidence to show as to who was the custodian of the contraband articles and samples till the same reached in the court. It is also the submission of the learned counsel that though the prosecution has claimed that the contraband articles were seized from the possession of the appellant on 17.4.1999, there is no evidence or material to show that the same were produced before the court. It is also the submission of the learned counsel that even if it is admitted that the same were produced before the court, there is no explanation from the part of the prosecution for the delay in reaching the contraband article and materials in the court. Therefore, according to the learned counsel, the appellant is entitled to the benefit of the decisions referred to above and he is entitled to get an acquittal. 6. On the other hand, the learned Public Prosecutor submitted CRL.A.NO.2093 of 2003 :-7-: that the evidence of PW3, the officer who detected the crime, would categorically prove the prosecution allegation against the appellant and the evidence of PW3 is intact and more over the evidence of PW3 is supported by the contemporary documents viz., Ext.P1 mahazar prepared by PW3 connected with the seizure of contraband article from the possession of the appellant. After having invited my attention to the evidence of PW6 and Ext.P3 document, the learned Public Prosecutor submitted that those evidence are sufficient to prove that the contraband articles reached in the court and there was no serious challenge against the above evidence of the prosecution and thus, according to the learned Public Prosecutor, no interference is warranted with the findings of the court below and conviction and sentence imposed against the appellant. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have perused the judgment of the trial court as well as the evidence on record including the deposition of the prosecution CRL.A.NO.2093 of 2003 :-8-: witnesses as well as the documents relied on by the prosecution. 8. At the outset, it is to be noted that though the prosecution has cited and examined two independent witnesses viz., PWs.1 and 2, to prove the seizure of the contraband article from the possession of the appellant, those witnesses turned hostile and they did not support the prosecution case. Therefore, there is no independent evidence to corroborate the evidence of the prosecution witnesses. There is no rule that unless the evidence of the prosecution witnesses including the official witnesses are supported and corroborated by the independent evidence, their evidence cannot be accepted or to be rejected. So the evidence of the prosecution on record has to be examined in the above factual and legal background. Thus, on a scanning of the deposition of PW3, the officer, who detected the crime, it can be seen that he had deposed in terms of the prosecution allegation. From the deposition of PW3, it can be seen that himself and party were on patrol duty and contraband articles were recovered from the possession of the appellant while the appellant was in possession and transporting the CRL.A.NO.2093 of 2003 :-9-: same. PW4, who was accompanying PW3 at the time of the seizure and arrest of the accused, has also deposed in terms of PW3. According to PW3, on completing the procedure with respect to the seizure and arrest of the appellant, they returned to the Excise Range Office and entrusted the material objects including the contraband articles and samples with PW6 for further action. When PW6 was examined, he had deposed that on the basis of the materials furnished by PW3, he had registered Ext.P3 crime and occurrence report and thereafter, produced the material objects before the court. PW5, who undertook the investigation, has also deposed in favour of the prosecution. But, in the present case, the substantial evidence regarding the proper custody of the contraband articles and samples is absent and there is no positive evidence as to whether the contraband article is produced before the court, and if it is produced, when was the same? It is pertinent to note that neither a property list nor a forwarding note has been identified and marked from the side of the prosecution during the trial of the above case. But, on verification of CRL.A.NO.2093 of 2003 :-10-: the LCR, it appears to me that a property list, though not separately marked, but named as property list contains the details of the properties mentioned. Since the property list as well as the forwarding note were not marked and no oral deposition was made by any of the official witnesses of the prosecution about the same, no cross examination was necessitated from the defence. Thus, there is no substantial evidence or documents to prove the production of the material objects and samples. 9. It is also relevant to note that on verification of the property list and forwarding note, which are not marked, it appears that the properties were seen to have produced in the court only on 22.4.1999 after a delay of five days from 17.4.1999, the date on which the prosecution alleged to have effected the seizure from the appellant. From the above facts and circumstances, it can be seen that if the evidence of PW3 is accepted that the contraband articles were seized and the samples were entrusted with PW6, it is for PW6 to assign and explain the steps taken by him for the proper preservation CRL.A.NO.2093 of 2003 :-11-: and custody of those materialss. Absolutely, there is no evidence on these aspects. So, the tampering of the samples and material objects cannot be ruled out. It is also relevant to note that as I indicated earlier, though no property list and forwarding note were got marked through the prosecution witnesses, after giving opportunity for the defence to cross-examine the same, from the case bundle, it appears that a property list and forwarding note were prepared and seen to have produced before the court. On verification of those records, it appears that the contraband articles and samples and other material objects were produced before the court only on 22.4.1999. But, no explanation is forthcoming either from PW6 with whom initially, the contraband articles were entrusted by PW3 or from PW5, the investigating officer, who conducted the investigation. So, the inevitable conclusion that can be drawn, due to the lapse on the part of the prosecution in adducing evidence to show that the properties mentioned above were under proper custody and in the absence of sufficient and proper explanation for the delayed production of the CRL.A.NO.2093 of 2003 :-12-: properties in the court, is that the appellant is entitled to get the benefit of decisions referred to above. The facts and circumstances involved in the case reported in **Ravi** v. **State of Kerala** [2011(3) KLT 353], which is a Division Bench decision appears to be similar with the facts involved in the present case. In that case, though delay was 16 days, in the present case, the delay is only five days. According to me, the crucial question is not the duration of the delay, but whether the prosecution has convincingly explained the delay. The particular facts involved in this case would show that no document is produced and marked by the prosecution to show that the contraband articles were produced before the court and there is no evidence to show that on such and such date, the contraband articles were produced before the court. The question of appreciating the explanation for the delay would arise only when the prosecution claiming the production of contraband articles belatedly. Here, there is no legal evidence to show that the contraband articles were produced and there is no explanation for the same. There is no explanation for the belated production also. CRL.A.NO.2093 of 2003 :-13-: Therefore, it cannot be said that the prosecution has succeeded in proving that the contraband article allegedly seized from the possession of the appellant/accused, ultimately reached in the hands of the chemical examiner without tampering. According to me, the above vital defect of the prosecution case has not been properly considered by the trial court and therefore, I am unable to approve the findings of the court below in favour of the prosecution. So, the evidence on record, according to me, is not sufficient to prove the prosecution allegation against the appellant beyond reasonable doubt and consequently, the benefit of doubt will go in favour of the accused. Therefore, the conviction recorded by the trial court against the appellant is set aside. In the result, this criminal Appeal is allowed setting aside the judgment dated 11.11.2003 in SC No.174 of 2001 of the court of Additional Sessions Judge, Fast Track (ADHOC-I), Alappuzha and acquitting the appellant/accused of all the charges levelled against him and the bail bond, if any, executed by him is cancelled and he is set at CRL.A.NO.2093 of 2003 :-14-: liberty. The Criminal Appeal is, accordingly, allowed. **V.K.MOHANAN, Judge** MBS/ CRL.A.NO.2093 of 2003 :-15-: ## **V.K.MOHANAN, J** . CRL.A.No. OF 20 **JUDGMENT** Dated:2. ..2011 CRL.A.NO.2093 of 2003 :-16-: