K. Sukumaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 25TH DAY OF NOVEMBER 2013/4TH AGRAHAYANA, 1935** **CRL.A.No. 290 of 2003 ( )** **--------------------------** **AGAINST THE JUDGMENT IN SC 619/1999 of ADDL.DISTRICT & SESSIONS COURT (AD HOC-I), KASARAGOD, DATED 25-11-2002** ## **APPELLANT(S)/ACCUSED:** **---------------------** **K.SUKUMARAN, AGED 36 YEARS, S/O.NARAYANAN, MULLERIYA, KARADKE VILLAGE.** **BY ADV. SRI.GRASHIOUS KURIAKOSE** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.A.No.290 of 2003** **------------------------------Dated this the 25[th] day of November, 2013.** ## **J U D G M E N T** The sole accused in S.C.No.619/99 of the court of Additional Sessions Judge, (Ad hoc-I), Kasaragod, preferred the above appeal challenging the judgment dated 25.11.2002 in the above sessions case, as he is convicted and sentenced for the offence under section 55(a) of the Abkari Act. 2. The prosecution case is that on 24.6.1999 at 8.30 p.m., the accused was found in possession of 27 packets each containing 100 ml. of Karnataka Made arrack and thereby he has committed the offence punishable under section 55(a) of the Abkari Act. On the above allegation, Crime No.86/99 was registered in the Adhur Police Station and on completing the investigation, a report was filed in the committal court, wherein C.P.No.256/99 was instituted **Crl.A.No.290 of 2003** 2 and finally the learned Magistrate committed the case to the Sessions court on 6.8.1999, wherein S.C.No.619/99 was instituted and finally transferred to the present trial court for trial. Thus when the accused appeared, a formal charge was framed against him u/s 55(a) and he denied the charge, when the same read over and explained to him. Thus, the prosecution by examining Pws.1 and 2 and producing Exts.P1 to P5 documents adduced its evidence and also produced M.Os.1 to 3 as material objects. The trial court finally held that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt and accordingly he is found guilty under Section 55 (a) and he is convicted thereunder. On such conviction, the appellant is sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of `1 lakh and in default he is directed to undergo rigorous imprisonment for 1 year. Set off is allowed. It is the above conviction and sentence that are challenged in this appeal. **Crl.A.No.290 of 2003** 3 3. Heard Adv.Sri.Grashious Kuriakose, the learned Senior counsel appearing for the appellant and I have heard Adv.Sri.N.Suresh, the learned Public Prosecutor for the State. 4. To prove the prosecution allegation, the prosecution completely depends upon Pws.1 and 2-the Official witnesses and the other documentary evidence. PW1 is the then Head Constable attached to Adhur Police Station, who accompanied PW2-the then Sub Inspector of the same Police Station who detected the crime. When these witnesses were examined, they have deposed that while they were on patrol duty, they found the accused at about 8.40 p.m. on 24.6.1999 at the bust stop at Alanthadka, holding a plastic bag and on inspection of the plastic bag, they found 26 plastic packets each having capacity of 100 ml. containing Karnataka Made arrack and thus according to Pws.1 and 2, the accused was arrested **Crl.A.No.290 of 2003** 4 then and there and the contraband article was seized on the basis of the mahazar prepared then and there. According to Pws.1 and 2, on completing the procedure for the seizure of the contraband article and arrest of the accused, they returned to the Police Station and registered a crime against the accused for the said offences. When Pws.1 and 2 were examined, they have deposed before the court strictly in terms of the prosecution allegation. During the examination of PW1, Ext.P1 seizure mahazar was marked through him. He had also identified M.O.1 plastic packets 21 in numbers, each of the same containing full of Karnataka Made arrack, M.O.2 six empty packets, and M.O.3 plastic bag. When PW2 was examined, he had also deposed in tune with the deposition of PW1 and he had also identified the material objects. During the examination of PW2, he had identified Ext.P2 scene mahazar, Ext.P3 forwarding note, Ext.P5 FIR prepared by him. He had also identified Ext.P4 chemical analysis report. It is on the **Crl.A.No.290 of 2003** 5 basis of the above evidence and materials, the trial court found the accused guilty of the offence under Section 55(a) and imposed the above quantum of sentence. 5. Learned Senior counsel for the appellant has submitted two points in support of his plea for the acquittal of the appellant. According to the learned counsel, even according to the prosecution, no independent person is made as witness to the seizure mahazar and therefore in view of the decision in **Ramachandran Nair Vs. State (1990(1) KLT 44)** , the mahazar will go against the prosecution, especially when there is no explanation for obtaining the service of independent persons for the alleged seizure. The second ground taken by the learned counsel is that, though the alleged seizure was effected on 24.6.1999, the sample and the material objects were produced before the court only on 2.7.1999, ie., with 8 days delay and the said delay is not properly explained and therefore according to the learned counsel, the delay **Crl.A.No.290 of 2003** 6 occurred in the present case will go against the prosecution, particularly when there is no evidence to show that during the above period, the samples were kept in safe custody. Therefore, according to the learned counsel, in the light of the decision in **Rajendran Vs. State of Kerala (2007(1) KLT 971)** , the findings of the court below are liable to be set aside. The learned Public Prosecutor submitted that though there is no independent evidence, there is no illegality in accepting the evidence of Pws.1 and 2. But the learned Public Prosecutor has no submission that the decisions cited by the learned Senior counsel for the appellant have no application in this case and not relevant in view of the facts and circumstances of the present case. 6. I have carefully considered the submissions made by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record and I have gone through the **Crl.A.No.290 of 2003** 7 authorities cited. 7. In the light of the contentions advanced and the evidence on record, the question to be considered is whether the finding and conviction recorded by the trial court is sustainable. It is true that, the evidence of Pws.1 and 2 are intact and fully supporting the case of the prosecution. But in the light of the arguments advanced by the learned Senior counsel supported by the authorities cited above, the further question to be considered is whether the investigation conducted by the prosecution is defective and the evidence so collected can be relied on to convict the appellant for such a serious offence like the present one. In the decision in **1990(1) KLT 44** , the learned Single Judge of this Court has held in paragraph 5 that, “Whether the legislature intended a particular provision to be mandatory or merely directory or obligatory depends upon the words used the context and setting in which the provision is made and the purpose for which the provision is enacted. The Abkari Act empowers any officer of the Excise Department or the Police Department to search any **Crl.A.No.290 of 2003** 8 person, animal, car vessel or other conveyance, about which he may have reasonable cause to suspect any liquor or intoxicating drugs to be concealed. When a search is made, the law requires that it must be conducted in accordance with the Code of Criminal Procedure. S.99 of the Code says that the provisions in the sections enumerated therein shall, so far as may be, apply to all search warrants issued under the Code.S.100(4) of the Code enjoins a duty on the officer who makes the search to call upon two or more independent and respectable inhabitants of the locality to attend and witness the search. The decisions are a legion to the effect that mere non-compliance with the provisions will not vitiate the search unless prejudice is caused to the accused. But the wording of the proviso to S.36 of the Act is different. The words “persons called upon to attend and witness such searches shall include at least two persons” indicate the legislative insistence for strict compliance with the proviso. When the statute uses expressions such as “at least”, it must be understood that it denotes the minimum number requires for its performance when it falls below the minimum number the officer who makes the search has a duty to explain the reason for not adhering to the minimum requirement. If such explanation is acceptable to court, the seizure or search may not get vitiated. But no hard and fast rule can be laid down that, that non-compliance with statutory conditions will or will not vitiate the action made by the officer. In this case, if PW1 had a case that he actually called two witnesses, but only one of them responded or that he could find out only one person in spite of his efforts perhaps it could have been held that PW1 had complied with the requirement in the proviso. But, PW1 has no such case.” **Crl.A.No.290 of 2003** 9 ## It is further held in the same decision in paragraph 6 that, “Learned counsel for the petitioner invited my attention to the decision of the Supreme Court in Madan & Co. v. W.J.Chand (AIR 1989 SC 630). In that decision, the frequently applied rule in Tailor v. Tailor ((1875) 1 Ch D. 426) was cited. The rule is “where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.” Though the said rule has attained acceptance in a general way the rule cannot be rigidly followed in all cases. Even if the conditions in a provision are held to be mandatory no ready inference can be made from its non-compliance that the action is illegal. Court has to see why the condition was not complied with. In this case, the prosecution has failed to give any explanation for the noncompliance with the conditions in the proviso to S.36.” On analysis of evidence on record, in the light of the above decision, it appears to me that, the prosecution has no acceptable explanation for not getting the assistance of any independent witness at the time of the seizure allegedly effected in the present case. Even according Pws.1 and 2, the alleged seizure was at 8.40 p.m. and the place of occurrence is Alanthadka, coming within the territorial jurisdiction of Adhur Police Station. No attempt was made **Crl.A.No.290 of 2003** 10 by PW2-the Detecting Officer, or PW1, who accompanied him to get the assistance of independent witness. Having regard to the fact that the alleged seizure was effected in a bus stop, there would not be any difficulty for the Police to get an independent witness either as passengers or as pedestrians. PW1 or PW2 has no case that there was no house to get the assistance of local inhabitants. Though I have repeatedly gone through the deposition of Pws.1 and 2, no explanation is offered by the above Police Officials in not getting the independent witness. As held in the above decision, if any explanation is offered, it is to be looked into that, whether the same can be considered and whether such explanation is convincing or acceptable. In the present case, no such explanation itself is offered. But the attempted circumstances show that there was every possibility of getting independent witness. So, the failure on the part of Pws.2 and 1 in getting the assistance of independent witness renders their evidence as doubtful ## **Crl.A.No.290 of 2003** **==> picture [12 x 9] intentionally omitted <==** and unreliable, particularly in view of the delay that occurred in producing the contraband article before the court. So, the fact of not getting the assistance of any independent witness or non examination of such independent witness in the present case, goes against the prosecution, particularly in view of the other attended circumstances. 8. Learned counsel in the light of the decisions in **Rajendran Vs. State of Kerala (2007(1) KLT 971)** and **Narayani Vs. Excise Inspector (2002(3) KLT 725)** , has submitted that the delay occurred in the present case is fatal to the prosecution. The sum and substance of the above two cases is to the effect that in the absence of any evidence as to the proper custody of the contraband article till the date of producing before the court, the chance of tampering with the sample taken and the residue seized, cannot be ruled out. In the present case PW2-the Officer who detected the crime and completed the investigation **Crl.A.No.290 of 2003** 12 has no claim that the samples were kept intact, without any room for its tampering. During the cross examination what he stated is that, “Sample bottle ക��ടത�കയക�ന writer-റ� ഏല��ച�. 25/6/99-ന ഏല��ച�. Property list-ഉ� 25/6/99-ന അയച�. Property list തയ���ക�യത Police Station-ല വച�ണ. 2/7/99-ന�ണ ക��ടത�യ�ല ��ട�യത�യ� ��ണ�നത. ഞ�ന writer-റ� ” . ഏല��ച�. അത�ന�ടയ�ല ആര�റട custody-യ�ല�ണ എന��യ�ല% That being the evidence of PW2, the decisions cited by the learned Senior counsel which are referred above, are squarely applicable in the present case. So, the tampering of the sample cannot be ruled out. In a recent decision of the Division Bench of this Court reported in **Ravi Vs. State of Kerala (2011(3) KLT 353)** , it has held that, “Production of the property before Court without unreasonable delay is also a necessary requirement of law and there should be explanation for the delay when there is delayed production of the property.” In the light of the deposition of PW2 during his cross **Crl.A.No.290 of 2003** 13 examination about the delay it can be seen that, PW2 has no explanation for the delayed production of the sample as well as the residue before the court. So, the above unexplained delay in producing the material objects and samples will go against the prosecution. In the very same Division Bench decision, this Court has also held that, “Prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from accused which had reached the hands of Chemical Examiner in a foolproof condition.” The evidence of PW2 shows that he was not aware as to who was the custodian of the contraband article of the sample after entrusting the same with the writer and till the same reached in the court. So, the tampering of sample cannot be ruled out. Therefore, there is no guarantee that the sample allegedly drawn from the contraband article seized from the possession of the accused reached at the hands of Chemical Examiner in a fool proof condition. In this juncture it is also relevant to **Crl.A.No.290 of 2003** 14 note that except the interested version of Pws.1 and 2, the Police Officials, there is no independent evidence to assure the correctness of the seizure and drawing of sample claimed by the prosecution. So, according to me, the available evidence and materials on record are not sufficient to withstand the test laid down by the Division Bench in the above cited decision. 9. In the light of the above discussion and the evidence and materials on record, it can be seen that there is serious defect in the investigation, particularly in the detection and seizure of the contraband article and producing the samples before the court without delay. In the absence of independent evidence coupled with the above defect in the investigation of the prosecution it cannot be said that the prosecution has succeeded in proving the allegation against the appellant beyond reasonable doubt. Therefore, I am unable to confirm the findings and conviction recorded by the trial court. Hence, 15 ## **Crl.A.No.290 of 2003** extending the benefit of doubt in favour of the appellant, the finding and conviction recorded by the trial court are set aside. In the result, this appeal is allowed setting aside the judgment dated 25.11.2002 in S.C.No.619/99 of the court of Additional Sessions Judge, (Ad hoc-I), Kasaragod, and the appellant is acquitted of all the charges levelled against him and bail bond if any executed by him stand cancelled and he is set at liberty. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge