K.A. MujeeB Rehman, Rajan.K, and K. Santhosh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 CRL.A.No. 522 of 2011() ----------------------SC.515/2006 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE .................... APPELLANT(S): ACCUSED 1 TO 3 ---------------------------- 1. K.A.MUJEEB REHMAN, AGED 33 YEARS, S/O.SAYED MOHAMMED, MASTHIKKUNDU, PALLIKERA, HOSDURG TALUK, KASARGOD DISTRICT. 2. RAJAN.K, S/O.RAMAKRISHNAN, AGED 25 YEARS, KOTTAKKUNNU, PALLIKERA, HOSDURG TALUK, KASARGOD DISTRICT. 3. K.SANTHOSH, S/O.BAIRAN, AGED 28 YEARS, KOTTAKKUNNU, PALLIKERA, HOSDURG TALUK, KASARGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT: COMPLAINANT-STATE -------------------------------- STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, BEKAL POLICE STATION, KASARGOD DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A No. 522 of 2011 ----------------------------------------** Dated the 12[th] day of August, 2011 ## **JUDGMENT** The accused in crime No.278/2005 of Bekal Police Station are the appellants as they are aggrieved by the conviction and sentence imposed against them under section 58 of the Kerala Abkari Act. 2. The prosecution case is that the Sub Inspector of Police, Bekal Police Station has inspected the autorickshaw bearing Registration No. KL.14C.3608 ridden by the Ist accused along with Accused Nos.2 and 3 as passengers from the Kanhangad - Kasaragod State Highway at 9.30 p.m on 24.8.2005 and recovered 35 litres of illicit arrack kept in 5 plastic cans of 5 litres capacity each and in a plastic can of 10 litres capacity. On the basis of the above allegation, crime No.278/2005 was registered for the offence under section 55(a) of the Kerala Abkari Act and the investigation was undertaken and finally, preferred the report in the Judicial First Class CRA No. 522 of 2011 2 Magistrate Court-II, Hosdurg wherein cognizance was taken for the said offence and instituted C.P.No.101 of 2006 and finally by order dated 16.10.2006, thereon, the learned Magistrate committed the case to the Sessions Court wherein the case was received on file as S.C.No.515 of 2006 and subsequently made over to the trial court for disposal. 3. When the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed for the offence under section 58 of the Abkari Act against the accused and when the said charge read over and explained to the accused, they denied the same and pleaded not guilty. Accordingly, the prosecution examined PWs 1 to 7 and produced Exts.P1 to P9 documents. No material object was produced and marked. The court has examined CW1 as court witness and marked Exts. C1 to C4 as court exhibits. No evidence either oral or documentary was produced from the side of the defence. After considering the evidence and materials on record, the learned Sessions Judge has found that A1 to A3 were jointly transporting the contraband liquor in the authrickshaw CRA No. 522 of 2011 3 driven by the Ist accused and it was taken into custody by PW1 and thus the offence under section 58 of the Kerala Abkari Act is established. Accordingly, the appellants/accused were found guilty of the offence punishable under section 58 of the Kerala Abkari Act and convicted them, thereunder. On such conviction, the accused are sentenced to suffer rigorous imprisonment for 4 1/2 years each and to pay a fine of Rs.1,00,000/- each (Rs.one lakh only), in default of payment of fine, to undergo rigorous imprisonment for three months each. Set off was allowed under section 428 Cr.P.C. It is the above finding, conviction and sentence and the judgment of the trial court are under challenge in this appeal. 4. PW1 is the then S.I. Of Police, Bakel police station and he is the detecting officer. When he was examined , he had deposed in terms of the prosecution case. Ext.P1 is the seizure mahazar, Ext.P2 FIR, Ext.P3 list of properties, Ext.P4 scene mahazar, Ext.P5 forwarding note, Ext.P6 inventory, Ext.P7 photographs and Ext.P7(a) negative of photographs were proved through him. CRA No. 522 of 2011 4 5. PW2 is the Village Officer who prepared Ext.P8 sketch plan with respect to the place of occurrence. PW3 was the Police Constable attached to the Bekal Police Station who accompanied PW1 at the time of the detection and seizure of the contraband article. PW4 is an independent witness cited by the prosecution to prove the seizure. PW5 is another witness cited by the prosecution to prove Ext.P4 scene mahazar. PW6 is the R.C.owner of the autorickshaw bearing Registration No.KL.14C.3608 which allegedly used to transport the contraband article. PW7 is the investigating officer who laid the charge after obtaining the chemical analysis report (Ext.P9) and the same was marked through PW7. CW1 is the AMVI attached to the Joint R.T.Office, Kasaragod through whom Ext.C2 Registration particulars of autorickshaw bearing Reg. No.KL.14C.3608 and Ext.C3 registration particulars of autorickshaw bearing Reg.No.KL.14A.8917 are marked. CW2 was the Assistant Excise Commissioner, Kasaragod, through whom Ext.C4 confiscation proceedings was marked. It is the above evidence that considered by the learned Sessions Judge CRA No. 522 of 2011 5 in support of his findings and recording the conviction against the appellants/accused. 6. I have heard Sri Suresh Kumar Kodoth, the learned counsel appearing for the appellants and Sri P.A.Salim, the learned Public Prosecutor. 7. The learned counsel for the appellants vehemently submitted that the prosecution has miserably failed to establish the allegation against the appellants/accused beyond reasonable doubt, and therefore, the findings of the court below and the conviction and sentence imposed against the appellants are liable to be set aside. The learned counsel has pointed out that the investigation was not conducted properly but in a very shabby manner. In support of the above submission, the learned counsel firstly pointed out that the prosecution has not produced any convincing and acceptable evidence to show that the accused are the passengers of the seized autorickshaw and they were found in possession of the contraband article. In support of the above submission, it is pointed out that the prosecution evidence itself shows that the above mentioned CRA No. 522 of 2011 6 autorickshaw is belonged to one Abdurahiman, as deposed by PW6. According to the learned counsel, the evidence of PW6 would show that the vehicle was sold to one C.Ibrahim and thereafter to one Abdurahiman and on the date of the alleged incident, PW6 was not the actual owner, but the prosecution has not adduced any evidence to show the nexus between the accused and the autorickshaw in question. It is also the submission of the learned counsel that no evidence is adduced by the prosecution to show that the autorickshaw in question was entrusted with A1 so as to substantiate the prosecution allegation that A1 was found in possession of the autorickshaw as well as the contraband article. Another important point raised by the counsel is that the prosecution has not produced the contraband article before the court. Thus according to the learned counsel, no physical evidence is adduced by the prosecution in terms of their allegation that the accused was found in possession of 35 litres of illicit arrack. The learned counsel pointed out that Ext.P3 property list contained only the samples and there is no description in Ext.P3 list regarding its CRA No. 522 of 2011 7 residue or the bulk quantity of the illicit arrack alleged to have found in possession of the accused. It is also pointed out by the learned counsel that in Ext.P6 inventory, there contained certain list of articles, but the cans mentioned in Ext.P6 did not bear any seal or any label. In support of the above contention, the learned counsel took me through the deposition of PW1 and pointed out the discrepancies and contradictions contained in his deposition. Another point raised by the learned counsel is that the prosecution has no specific idea regarding the exact place of occurrence. According to the learned counsel, the scene of occurrence that mentioned in Ext.P4 scene mahazar and Ext.P8 sketch are not tallying each other. According to the learned counsel, as per Ext.P8 sketch prepared by PW2, there is only a bus shelter and PW1 says that the place of occurrence was on the southern side of the Bus Shelter, but as per Ext.P8 sketch, according to PW2, the place of occurrence is on the eastern side of the bus shelter, whereas according to PW3, the witness who claimed to have accompanied PW1 at the time of seizure, the place of occurrence is on the western side of the bus CRA No. 522 of 2011 8 shelter. The learned counsel, after inviting my attention to the Division Bench of this Court in **Ravi v. State of Kerala** (2011(3) KLT 353), submitted that the requirement of production of the contraband article before the court is mandatory on the part of the investigating agency. But in the present case, even according to PW1, the contraband article is not produced before the court and actually what produced was only the samples as per Ext.P3 list. Thus according to the learned counsel, absolutely there is no evidence to show who was actually the custodian of the contraband articles after drawing the sample. The learned counsel submitted that Ext.P6 inventory cannot be considered as a legal evidence for basing the commission of the offence against the appellants/accused because Ext.P6 inventory is not tallying with Ext.P7 photographs of the cans since, according to the leaned counsel, PW1 has stated that the labels seen in the photographs are not pasted by PW1. Thus according to the learned counsel, that part of the evidence of prosecution is under shadow of doubt which cannot be acted upon. Thus CRA No. 522 of 2011 9 according to the learned counsel, the prosecution has miserably failed to establish its case against the accused beyond reasonable doubt and therefore the conviction and sentence imposed by the trial court against the appellants are liable to be set aside and the accused are entitled to get a clear acquittal. 8. Stoutly opposing the arguments advanced by the learned counsel, Sri P.A.Salim , the learned Public Prosecutor vehemently submitted that the evidence of PWs 1 to 7 is in tact regarding the detection and seizure of the contraband article and particularly when Ext.P1 seizure mahazar, Ext.P2 FIR and Ext.P3 list of properties etc. were reached in the court on the next day of the seizure of the contraband article. So, the contemporary documents, according to the learned Public Prosecutor, supports the evidence of PWs 1 and 3. According to the learned Public Prosecutor, in view of Section 53(a) of the Kerala Abkari Act, the articles seized under the provisions of the Kerala Abkari Act can be disposed of by the authorized officer by resorting the procedure contemplated thereunder. According to the learned Public Prosecutor, in the present case, the CRA No. 522 of 2011 10 remnants of the contraband articles were disposed of by the Assistant Excise Commissioner , Kasaragod as per Ext.C4 proceedings and therefore, the non production of the material object in the court cannot be a ground for acquittal of the accused, especially when the prosecution has produced Ext.P6 inventory and Ext.P7 photographs which can be teated as primary evidence as contemplated under section 53A(5) of the Abkari Act. Thus according to the learned Public Prosecutor, the findings and the conviction recorded by the court below is perfectly in accordance with the evidence and record and no interference is warranted. 9. I have carefully considered the arguments advanced by the learned counsel as well as the learned Public Prosecutor. I have also perused the judgment of the trial court carefully and also gone through the deposition of the witness and other materials on record. 10. The crux of the prosecution allegation is that on 24.8.2005 at 9.30 p.m., the appellants/accused were found in possession of 35 litres of illicit arrack while they were proceeding CRA No. 522 of 2011 11 in an auto rickshaw bearing KL.14C.3608, which was driven by the Ist accused of which A2 and A3 were passengers. In the light of the rival contentions of the learned counsel for the appellants and the learned Public Prosecutor, and in the light of the findings of the court below, based upon the evidence and materials referred above, the question to be considered is whether the trial court is justified in its finding and the conviction and sentence imposed against the appellants for the offence under section 58 of the Kerala Abkari Act. In order to substantiate the prosecution allegation, the main witness depended by the prosecution is PW1 who was the then S.I of Police , Bakel police station who detected the offence. I am not proposed to repeat the entire deposition of PW1. But his deposition in chief examination with respect to the seizure is more relevant. He deposed before the court that he had drawn two samples in two sample bottles after mixing the liquid that contained in the can. He had also deposed that seizure was effected as recorded in Ext.P1 mahazar. He had also deposed that as per Ext.P3 list, samples were sent to the CRA No. 522 of 2011 12 court. PW1 did not say anything about the seizure and the manner in which the remaining contraband articles were seized. During the chief examination, he had deposed that: “ Sample കഴ� ച�ള മ�തല�കള�ട� Inventroy തയ�റ�ക� ക�ട�ന അവര ന�പ�� സ��കര�ചത�യ� ക�ണ�ന�. S.53A രക�ര! ACE, Kasaragod തയ�റ�ക�യ Inventroy ആണ# എടന ക�ണ�ചത#, identifies it marked as Ext.P6''. He further deposed that:“അടത�ന�ച# ഹ�ജര�ക�യ photograph- ല ഞ�ന പ���ടച��ത 5 കന�സ�കള�ട� ച�തത! ഉണ# '' He had also deposed that : “പ���ടച��ത വണ� confiscation ” ആയ� ACE മ�ന�ടക ഹ�ജര�ക�യത�യ� ക�ണ�ന�ണ# . 11. During the cross examination, PW1 has admitted that, in Ext.P6 inventory, with respect to item nos.1 and 2, there is no remarks to the effect that the same were labelled and sealed. He had further deposed that : “Ext.P7 photo -യ�ല ഞ�ന ഒട�ച label ക�ണ�ന ഇല. label ക�ണ�ന ന�ലയ#ക# ആണ# ആ photo എ��ത�ട�ളത# . ആ ഫ5�ഫട� യ� ല Can ന# side ല ഒട�ച crime No- ല ഒട�ച ഫലബല അല. അത# ആര# ഒട� ച� എന# പറയ�ന കഴ�യ�ല.” He further deposed CRA No. 522 of 2011 13 that, there is no description in Ext.P1 with respect to the Cans seized by him. He had also deposed that no local inhabitants are made as witness for the seizure. It is further deposed during cross examination that , “ മണത�! ര�ച�ച�! കന�സ�ടല ത7�വക! പ�ഫ8�ധ�#ച ക�ര:! Ext.P1-ല പറഞ�ട�ല. കന�സ�ടല ത7�വക! ക�ട� കലരത�യ ക�ര:! Ext.P1-ല പറഞ�ട�ല.” He further deposed that “ ഒര� bucket ല ഓഫര� ഓഫര� കന�സ�ല�! കണ ത7�വക! ക�റച# ക�റച# ഒഴ�ച# ആണ# mix ടചയ ത# എ��തത# . ഈ ക�ര:! Ext.P1 ല�! P2ല�! പറഞ�ട�ല. ഈ ക�ര:! ആ7:മ�യ� പറയ�കയ�ണ#. എതത എതത അളവ�ല ഓഫര� കന�സ� ല ന�ന�! ത7�വക! mix ടചയ�ന എ��ത� എന# പറയ�ന കഴ�യ�ല.” He had also deposed during cross examination that: “sample എ��ത ഫ8ഷ! ഓഫര� കന�സ�ല�! എതത എതത അളവ�ല ച�ര�യ! ഉണ�യ�ര�ന� എന# പറയ�ന കഴ�യ�ല"'. He had again deposed in answer to a question during cross examination that, “Inventory തയ�റ�ക�ന സമയ! ഈ മ�തല ആര�ട� കകവ8! ആയ�ര�ന� എന# പറയ�ന എന�യ#ക�വ�ല. '' 12. From the above evidence of PW1, it can be seen that though he has got a claim that he had seized the contraband article from the possession of the appellants/accused, CRA No. 522 of 2011 14 except the drawing of sample, and the procedure thereto, he has no idea or knowledge regarding the remaining contraband article including its quantity, quality and who was the custodian of the same. PW1 has no knowledge or idea as to whether the materials objects were sent for the preparation of the inventory. The learned Public Prosecutor pointed out that in the remand report dated 25.8.2005, there is mentioning to the effect that the remaining contraband articles and the autorickshaw with the inventory report sent to the Assistant Excise Commissioner. But when PW1 was examined, in chief examination his evidence is that : ““Sample കഴ� ച�ള മ�തല�കള�ട� Inventroy തയ�റ�ക� ക�ട�ന അവര ന�പ�� സ��കര�ചത�യ� ക�ണ�ന�.” So the above evidence of PW1 is not sufficient to inspire confidence of this court that the remaining contraband articles were under proper custody of any competent officer. PW1 has also deposed that the same was not produced before the court and as evidenced by Ex.P3 property list, what produced before the court was only the samples. I have carefully perused Ext.P7 photographs of the Jerry can shown in Ext.P7 photograph wherein CRA No. 522 of 2011 15 the crime number is appeared to have separately pasted in each can. But according to me, the capacity of the jerry cans figured in Ext.P7 photographs is not 5 litres or 10 litres as claimed by the prosecution which alleged to have seized from the possession of the appellants. So Ext.P7 photographs negative the case of the prosecution . 13. In this juncture, it is also relevant to note that, PW1 has also deposed before the Court that in Ext.P1 there is no description of the jerry cans allegedly recovered from the appellants. In Ext.P2 FIR also there is no such description. PW1 has categorically admitted that the can shown in Ext.P7 photographs does not contain seals. PW1 has positively deposed that the labels which seen to have pasted on the jerry cans as shown in Ext.P7 photographs are not pasted by himself. So in the light of the above infirmities, this court is of the opinion that, the prosecution allegation that the accused were found in possession of 35 litres of illicit arrack, cannot be accepted as true and correct as the prosecution has miserably failed to prove the same with convincing evidence and beyond reasonable doubt. CRA No. 522 of 2011 16 14. The learned Public Prosecutor, on the strength of Section 53A of the Kerala Abkari Act and on the basis of Ext.P6 inventory, submitted that even though the contraband article is not produced before the court, the court can act upon Ext.P6 considering the same as primary evidence as contemplated by Section 53A(5) of the Act and therefore, the trial court is perfectly right and legal in its finding and convicting the accused for the offence under section 58 of the Act. I am unable to sustain the above contention. In view of Section 53A(2) and (4), the authorised officer has to obtain permission of the court for the disposal of the seized article. In the present case, there is no evidence to satisfy the above requirement. It is also relevant to note that Ext.P6 inventory does not bear any date, but from the date shown in the seal and signature, it appears that the same reached in the court on 30.1.2006. As deposed by PW1, even in Ext.P6 inventory, there is no description regarding the label or seal with respect to item Nos.1 and 2 in Ext.P6 inventory. This Court, in the decision in **Sasidharan v. State of Kerala** (2007 (1) KLT 720), has held that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized CRA No. 522 of 2011 17 from the accused which had reached the hands of the Chemical Examiner in a fool proof condition. Referring to the above decision, in **Ravi's case,** (cited supra), a Division Bench of this Court has 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. In the present case, there is no quarrel that as per Ext.P3, the samples reached in the court in time from where the same reached in the hands of the Chemical Analyst. But because of the infirmities and discrepancies that occurred during the investigation, particularly in seizure, and with respect to the disposal of the property under section 53A of the Abkari Act, it cannot be said that Ext.P9 chemical analysis report represent the contents of the jerry can which alleged to have seized by PW1. In short, at present, there is no convincing and concrete evidence to show that the appellants/accused were in possession of 35 litres of illicit arrack. Regarding the quantity of the contraband article, after drawing the sample , there is no CRA No. 522 of 2011 18 evidence at all, especially, when the evidence of PW1 would further points towards the fact, particularly in the light of Ext.P7 photographs, that the materials mentioned in Ext.P6 inventory are the same that seized by PW1. 15. It is further relevant to note that in **Ravi's case,** (cited supra), the Division Bench of this Court has held that production of the property before the court without unreasonable delay is also a necessary requirement of law. In the same decision, this court has further held: “What is enjoined by the statute is only that the seizure of property should be reported forthwith to the Court. But we are hasten to add that the production of the property before the Court (wherever it is practicable) should also take place without necessary delay. There should be explanation for the delay when there is delayed production of the property”. The learned Public Prosecutor submitted that the scope of Section 53A is not considered by the Division Bench while rendering the above decision. But in the present case, an offence was allegedly, committed in 2005, i.e., after the introduction of Section 53A and therefore , the prosecution agency is bound to comply with CRA No. 522 of 2011 19 the mandatory and procedural provisions contained therein. In the present case, there is no evidence to show that the prosecution agency obtained permission of the court to proceed with the procedure under section 53A. According to me, considering the object behind the enactment of Section 53A, particularly in view of Section 53(2)(b), the jurisdiction of the court over the articles seized is not divested and hence production of the contraband article or a report in lieu of production of the contraband article is inevitable in view of Sections 451 and 457 unless the special law or local law specifically authorizes the prosecution agency not to produce the seized article before the court. In the Kerala Abkari Act, there is no such provision enabling the Abkari officers for not producing the contraband articles seized connected with the detection of the offence under the above Act. In the light of the above facts and circumstances and the discussion, the prosecution has not succeeded in establishing its case against the appellants/accused beyond reasonable doubt and therefore, the findings of the learned Sessions Judge that the appellants/accused were found in possession of 35 liters of illicit CRA No. 522 of 2011 20 arrack is factually and legally incorrect and the same is not sustainable, and hence, the conviction recorded by the trial court against the accused cannot be sustained and accordingly, the conviction of the appellants under section 58 of the Abkari Act is set aside. In the result, the appeal is allowed and the judgment dated 3.3.2011 in S.C.No.515 of 2006 of the court of Additional District and Sessions Judge, (Adhoc) III, Kasaragod is set aside and the appellants/accused are acquitted of all the allegations and the charges levelled against them and they are set at liberty. In the light of the above order of acquittal, the appellants are entitled to get released from jail forthwith if they are not required in any other case. The registry is directed to forward the gist of this judgment to the Superintendent, Central prison, Kannur forthwith for further action. **V.K.MOHANAN, JUDGE.** **kvm/-** 21 CRA No. 522 of 2011 **Kvm/-**