K. Damodharan v. The Sub Inspector of Police, Rajapuram Police Station & The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 12TH DAY OF FEBRUARY 2015/23RD MAGHA, 1936** **Crl.Rev.Pet.No. 1236 of 2003 ( )** **-------------------------------------** **AGAINST THE JUDGMENT IN Crl.APPEAL 278/1999 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD, DATED 15-02-2003 & AGAINST THE JUDGMENT IN SC 215/1998 of ASSISTANT SESSIONS COURT, HOSDRUG, DATED 17-12-1999** ## **REVISION PETITIONER(S):** **-------------------------------------** **K. DAMODHARAN, S/O. LATE VAYALKODAN AMBU, RESIDING AT KANNOTH VEEDU, KUYYANGAD, KODAM VILLAGE.** **BY ADVS.SMT.T.SUDHAMANI SRI. RAHUL SASI** ## **RESPONDENT(S):** **------------------------** ## **1. THE SUB INSPECTOR OF POLICE, RAJAPURAM POLICE STATION.** ## **2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT. V.H. JASMINE.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-02-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** -----------------------------------------------------------------Crl.R.P.No.1236 of 2003 --------------------------------------------------------------------Dated this the 12[th] day of February, 2015 ## **O R D E R** Accused in S.C.No.215/1998 on the file of the Assistant Sessions Court, Hosdurg, is the revision petitioner herein. The revision petitioner was charge-sheeted by the Sub Inspector of Police, Rajapuram police station, in Crime No.48/98 under Section 55(g) of Abkari Act. 2. The case of the prosecution in nut shell was that, on 26.02.1998 at about 04.30 p.m., the revision petitioner was found to be in possession of eight liters of wash/ a material used for manufacturing of arrack, in a plastic cannas at Poodumkallu, in violation of the Provisions of Abkari Act and thereby he had committed the offence punishable under Section 55(g) of the Kerala Abkari Act. 3. After investigation, final report was filed before the Judicial First Class Magistrate Court-I, Hosdurg, 2 Crl. R. P. No.1236/ 2003 and the case was taken on file as C.P.No.50/98 and it was committed to the Sessions Court, Kasaragod, where it was taken on file as S.C.215/1998 and thereafter it was made over to Assistant Sessions Court, Hosdurg, for disposal. 4. When the revision petitioner appeared before the court below, after hearing both sides, charge under Section 55(g) of the Abkari Act was framed and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P6 and Mos 1 to 3 were marked on the side of the prosecution. After closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence and he had further stated that, he had not committed any offence and he has been falsely implicated in the case and he had not involved in distillation of arrack. In 3 Crl. R. P. No.1236/ 2003 order to prove his case, DWs 1 and 2 were examined and Ext. D1 was marked. After considering the evidence on record, the court below found the revision petitioner guilty under Section 55(g) of Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for four years and also to pay a fine of ₹1,00,000/-, in default to undergo simple imprisonment for six months. Aggrieved by the same, he filed Criminal Appeal 278/1999 before the Sessions Court, Kasaragod, which was made over to Additional Sessions Court (Ad-Hoc-I), Kasaragod, for disposal and the learned Additional Sessions Judge dismissed the appeal, confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below. 5. Heard the counsel for the revision petitioner and learned Public Prosecutor. 6. The counsel for the revision petitioner Crl. R. P. No.1236/ 2003 4 submitted that, the investigation and detention were done by the same person and that caused prejudice to him. Further in the seizure mahazar, the nature of seizure was not mentioned. Further there was some delay in producing the article and there was no evidence to show that the chemical analysis report relates to the same article, which alleged to have been seized from the possession of the accused, so as to convict him for the said offence. The specimen seal has not been affixed anywhere in the seizure mahazar or in the property list and in the absence of such evidence, the genuineness of the sample has to be doubted. So the courts below were not justified in convicting the revision petitioner for the offence alleged. He had relied on the decision reported in **Rajamma v. State of Kerala (2014 KHC 2548)** , **Manikantan Pillai v. State of Kerala (2013 KHC 3713)** and **Gopalan v. State of Kerala (2012 KHC 812)** in support of his case. 7. Learned Public Prosecutor supported the Crl. R. P. No.1236/ 2003 5 concurrent findings of the court below. 8. The case of the prosecution as emerged from the prosecution witnesses was that, on 26.02.1998, while PW1 was in the police station, he got information that the revision petitioner was engaged in distillation of arrack and immediately he went to the place and saw the revision petitioner sitting behind a toddy shop with MO1 cannas and on seeing the police party, he tried to go away from that place, so he stopped him and on examination it was found that MO1 cannas was near him with MO2 pot with MO3 lid. On examination of the contents in MO1 cannas, he found that, it contains eight liters of some liquid. On examination he was satisfied that it was wash. So he took two samples of 375 ml., each and arrested the accused and seized the contraband article as per Ext.P3 mahazar in the presence of PW4 and PW5 and gave arrest intimation to his relative and thereafter came to the police station and registered Ext.P6 first information report as Crime No.41/98 of Rajapuram 6 Crl. R. P. No.1236/ 2003 Police station against the revision petitioner under Section 55(g) of the Abkari Act. He himself had conducted the investigation and went to the place of occurrence and prepared Ext.P2 scene mahazar in the presence of PW2 and another. On the basis of the request given by PW1, the Village Officer prepared Ext.P1 sketch plan of the place of occurrence. The samples were sent for chemical examination and Ext.P5 report obtained, which will go to show that, it contained 7.15 and 6.32% by volume of ethyl alcohol. He completed the investigation and submitted final report. 9. PW1 is the Village officer, who prepared Ext.P1 sketch plan. PW2 is the witness to Ext.P2 scene mahazar. PW5 is the independent witness to Ext.P4 seizure mahazar, though he admitted the signature, he denied having seen the incident. PW4 is the Assistant Sub Inspector who accompanied PW3 and he had deposed that he had seen the seizure of MOs 1 to 3 and signed Ext.P3 7 Crl. R. P. No.1236/ 2003 mahazar. He had not stated about the formalities done by PW3 regarding taking sample etc. PW3 had deposed that he had taken two samples of 375 ml. each and sealed the same seized the sample and Mos 1 to 3 as per Ext.P1 mahazar and arrested the revision petitioner and thereafter he came to the police station and registered the case. Though defence witnesses were examined on the side of the defence, Ext.D1 coupled with the evidence of DW1 will go to show that PW3 had gone to the place on getting information and that was entered in Ext.D1 General Diary and DW2 had stated that he did not know whether the revision petitioner was engaged in distilling of arrack or not. So their evidence is not helpful to prove the case of false implication of the revision petitioner in this case as contended by the revision petitioner. 10. As regards the detection of investigation conducted by the same officer, it has been observed in the decision reported in **Khader v. State of Kerala (2001(2)** 8 Crl. R. P. No.1236/ 2003 **KLT 407)** that, that alone will not vitiate the proceedings unless prejudice has been established by the accused. No such prejudice has been established by the revision petitioner. No enmity has been made out for PW3 to falsely implicate him in a case like this. 11. Then the question is as to whether the prosecution was able to establish Ext.P5 chemical analysis report relates to the sample said to have been taken from the contraband article alleged to have been seized from the possession of the revision petitioner. The evidence will go to show that MOs 1 to 3 were seized from the possession of the revision petitioner, but that alone is not sufficient to prove that the prosecution has proved beyond reasonable doubt that he was in possession of the contraband article. In Ext.P3 seizure mahazar, there is nothing mentioned about the procedure followed for taking sample etc., except the description shows that two bottles containing 375 ml., wash as sample along with other articles. There is nothing 9 Crl. R. P. No.1236/ 2003 mentioned in the seizure mahazar regarding the nature of seal used or whether any label has been affixed on these articles. Further there is nothing mentioned in Ext.P3 that in MO1 cannas also whether any seal has been affixed, except mentioned that the cannas was seized. Further the specimen of the sample seal was not affixed in the seizure mahazar and it was not affixed in the property list also. Further the property list along with the contraband articles seized reached the court only on 04.03.1998, whereas the alleged seizure was on 26.02.1998. There is no evidence as who was in possession of the article till that date so as to come to the conclusion that the articles reached court in tamper proof condition. 12. In the decision reported in **Gopalan v. State of Kerala (2012 KHC 812)** this court has observed that, if the specimen impression of the seal used for sealing the articles was not affixed in the seizure mahasar and also in the property list and it was not sent to the court 10 Crl. R. P. No.1236/ 2003 immediately, then it cannot be said that the same article has reached the court in tamper free condition and that benefit must be given to the accused. Same view has been reiterated in the decisions reported in **Rajamma v. State of Kerala (2014 KHC 2548)** , **Manikantan Pillai v. State of Kerala (2013 KHC 3713)** . Further in the decision reported in **Ravi v. State of Kerala (2011(3) KLT 353)** , it has been held that, it is not always necessary that the delay must be fatal, but it is unexplained, then it must be fatal. In this case, the delay in producing the article has not been explained. Further there is nothing on record to show that, what is the nature of seal used for sealing the article and that was not deposed by PW3, when he was examined before the court also. So under the circumstances, it cannot be said that, the prosecution has proved beyond reasonable doubt, that Ext.P5 chemical analysis report relates to the alleged sample that has been taken from the contraband articles alleged to have been seized from the possession of 11 Crl. R. P. No.1236/ 2003 the revision petitioner and unless this is proved by the prosecution, it cannot be said that, prosecution has proved beyond reasonable doubt that the revision petitioner was found to be in possession of the contraband article and liable to be punished for violation of the Provisions of Abkari Act. These aspects were not considered by the court below, before coming to the conclusion that, prosecution has proved the case against the revision petitioner beyond reasonable doubt and as such the conviction entered is not proper and the same is liable to be set aside. In view of the fact that the conviction has been set aside, the sentence imposed is also not proper and the same is also liable to be set aside. In the result, the revision petitioner succeeds and the revision is allowed. The order of conviction and sentence passed by the court below against the revision petitioner under Section 55(g) of the Abkari Act and confirmed by the appellate court are hereby set aside and 12 Crl. R. P. No.1236/ 2003 he is acquitted of the charge levelled against him, giving him the benefit of doubt. He is set at liberty. The bail bond executed by him will stand cancelled. If any fine amount has been remitted by him, the lower court is directed to refund the same to the revision petitioner on making an application before that court for that purpose. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy// P.A. to Judge ss