Kalyani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 17TH DAY OF MARCH 2014/26TH PHALGUNA, 1935** **CRL.A.No. 421 of 2004 (A) --------------------------** **AGAINST THE JUDGMENT IN SC 301/2002 of ADDL.SESSIONS COURT (ADHOC)II, PALAKKAD DATED 09-03-2004** **APPELLANT(S)/ACCUSED.:** **---------------------** **KALYANI, W/O.LATE GOPALAN, PANANGODETHODI VEEDU, KANAYAMPADAM, KOLLUR, MANKARA, PALAKKAD.** **BY ADVS.SRI.P.VIJAYAKUMAR SRI.K.M.KURIAN.** **RESPONDENT(S)/COMPLAINANT,.:** **--------------------------** **1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. THE EXCISE INSPECTOR, PARALI RANGE, PALAKKAD.** **BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** **A.HARIPRASAD, J. -----------------------------------------------Crl. Appeal No.421 of 2004 -----------------------------------------------Dated this the 17[th] day of March, 2014.** ## **J U D G M E N T** . Appeal filed under Section 374(2) Cr.P.C Appellant was convicted in a trial by the learned Additional Sessions Judge, Palakkad in S.C No.301/2002 wherein she was called up to answer charges under Sections 8(2) and 55(b) of Abkari Act. 2. Facts in short are as follows : PW1, the Preventive Inspector in Excise Department and his party were on patrol duty on 10-10-1998. At about 7.20 a.m, he got reliable information that the appellant was engaged in manufacturing illicit arrack from her house situated in Mankara Village. PW1 contended that he prepared a search memo and it was sent to the court. Thereafter, they proceeded to the house of the appellant and found her distilling illicit arrack from the kitchen. Utensils required for distillation were also found in the kitchen. After arresting the accused and taking samples from the ## **Crl. Appeal No.421 of 2004 2** contraband articles, a seizure mahazar was prepared. Thereafter, the accused along with material objects and papers were produced before the learned Magistrate. She was tried and convicted by the court below. At the time of trial, six witnesses were examined on the side of prosecution and eleven documents marked. CW1 is a witness summoned by the court by invoking power under Section 311 Cr.P.C. Material objects are MO's 1 to 10. Ext.D1 is the defence document. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. Learned counsel for the appellant contended that conviction of the appellant is unsustainable for variety of reasons. According to him, Ext.P1 search memo is a concocted document and PW1 has not prepared the same. It is also contended that the whole search is vitiated for want of legally acceptable evidence regarding the genuineness of Ext.P1 search **Crl. Appeal No.421 of 2004 3** memo. Secondly, it is contended that Ext.P1 search memo was not produced in court in compliance with the provisions in Rule 253 of the Criminal Rules of Practice. Learned counsel for the appellant would further contend that Ext.P3 seizure mahazar relied on by the prosecution was also not properly proved. 5. Per contra, the learned Public Prosecutor would contend that oral evidence of material prosecution witnesses coupled with the documents timely produced before the court below would establish the guilt of the accused. 6. PW1 is the detecting officer. He would testify that on 10-10-1998, he received an information while engaged in patrolling duty that the appellant was distilling illicit arrack from her house. After preparing a search memo and sending it to the court, he entered the house of the appellant and seen her distilling arrack in an aluminium vessel having a volume of 40 litres. On examination of the contents in the aluminium vessel, ## **Crl. Appeal No.421 of 2004 4** PW1 and his party were satisfied that it was wash meant for the distillation of arrack. He would depose that after arresting the accused, Ext.P2 search list and Ext.P3 seizure mahazar were prepared. In Ext.P3 seizure mahazar, he affixed the specimen seal. Arrest memo is produced and marked as Ext.P4. All the material objects and the documents were handed over to the investigating officer (PW5). 7. Learned defence counsel cross examined this witness to establish that Ext.P1 search memo was not prepared as contended by him. Ext.P3 seizure mahazar is also challenged. 8. PW2 was an Excise Guard at the material time and he was in the party led by PW1. He also testified in harmony with the evidence adduced by PW1. According to the testimony of PW2, Ext.P1 search memo was put by him in the mail box. PW's 3 and 4, the independent witnesses refused to support the prosecution case. PW5 was working as Excise Inspector at the **Crl. Appeal No.421 of 2004 5** material time. According to him, he conducted the investigation. He obtained certificates from Panchayat to show that the house involved in the case belonged to the appellant. He prepared forwarding note and produced it. All the material papers and contraband were produced on the next day in the court. When cross examined, PW5 deposed that he did not prepare Ext.P1 search memo. It is also come out in evidence through PW5 that at the material time, the Magistrate having jurisdiction was not sitting and the Magistrate at Chittur was holding the charge of the former Magistrate. 9. Learned counsel for the appellant would contend that after closing prosecution evidence and after questioning the accused under Section 313 Cr.P.C, the trial court invoked its power under Section 311 Cr.P.C and examined CW1. Through CW1, new facts were introduced and a new document was marked. The accused was not given an opportunity to explain **Crl. Appeal No.421 of 2004 6** the circumstances brought out in evidence through CW1. I have verified the material papers relating to the examination of the accused under Section 313 Cr.P.C. It is seen that the accused was examined on 12-02-2004. Records would show that CW1 was examined by the trial court on 01-03-2004. The material papers would show that the accused was convicted on 08-03-2004. It is settled law that the purpose of examining an accused under Section 313 Cr.P.C is to give him an opportunity for explaining any circumstances in the prosecution evidence, which may tend to incriminate him. Compliance of the provision is highly essential for satisfying the sacred principles of natural justice. Learned counsel for the appellant placing reliance on _**Parameswaran and Others v. State of Kerala (1989(1) K.L.T 35)**_ contended that the appellant is entitled to be acquitted because the conviction is based on the testimony and evidence introduced by CW1 also. In the above decision, this court **Crl. Appeal No.421 of 2004 7** considered the principles involved in Section 313 Cr.P.C in the light of a peculiar fact situation. That was a case under the Prevention of Corruption Act, 1947. Two accused were tried in that case. Ext.P3(a) mahazar was the only evidence available in the case against the first accused. That was the sole basis for conviction of the appellant therein. It is seen by this court that no question was put to the accused at the time of examining him under Section 313 Cr.P.C regarding Ext.P3(a) and without affording an opportunity he was convicted on the basis of that particular document. In that context, it was held that the accused was entitled to be acquitted. Learned Public Prosecutor would contend that in this case unimpeached testimony of PW's 1, 2 and 5 coupled with documents like seizure mahazar, forwarding note, analysis report etc. would indicate that the accused was guilty. In other words, the ratio in _**Parameswaran's**_ case (Supra) cannot be applied without regard of the facts in this case. It is **Crl. Appeal No.421 of 2004 8** axiomatic that, unless prejudice is shown to have been caused to the accused by improper examination under Section 313 Cr.P.C the trial will not be vitiated. Learned counsel's request for acquittal of the accused on the basis that the trial judge did not refer to the evidence of CW1 cannot be legally accepted. However, the accused was denied of an opportunity to explain the circumstances came out through the evidence of CW1. Therefore, I am of the view that the accused should be given an opportunity to explain the circumstances stated by CW1. 10. Learned counsel for the appellant contended based on _**K.L.Subhayya v. State of Karnataka (A.I.R 1979 S.C 711)**_ , that the Supreme Court interpreted Mysore Excise Act (21 of 1966) and found that a search without complying with Section 54 of the Act would render the entire search without jurisdiction and as a logical corollary, vitiates the conviction under Section 54 of the Act. Learned counsel for the appellant would rely on **Crl. Appeal No.421 of 2004 9** Section 165 Cr.P.C and 19 in Chapter XXV (Volume 2) of Excise Manual also. While interpreting Section 165 Cr.P.C, the Supreme Court in _**State of M.P v. Paltan Mallah (A.I.R 2005 S.C 733)**_ has specifically held that illegality of search by investigating officer does not vitiate seizure, unless it caused prejudice to the accused. Therefore, the law appears to be that the accused should establish that non preparation of Ext.P1 search memo and consequent search caused prejudice to her rights. However, that question does not arise for consideration at this stage, because, I have already seen that the trial court did not adhere to the procedure warranted under law as prescribed in Section 313 Cr.P.C. Hence, the impugned judgment cannot be sustained and the matter has to be remitted back to the court below for complying with the mandate of the law. In the result, the appeal is allowed. Conviction of the appellant under Sections 8(2) and 55(b) of Abkari Act is hereby **Crl. Appeal No.421 of 2004 10** set aside. The court below shall conduct a further examination of the accused under Section 313 Cr.P.C in respect of the evidence adduced through CW1. Considering the fact that the prosecution was started in the year 1998 and also the fact that the accused crossed the age of 65, learned trial judge shall dispose of the matter within a period of two months from the date of receipt of the records. The accused shall appear before the court below on 11[th] April, 2014. The court shall dispose of the matter untrammelled by observations in this judgment and in accordance with law. The Registry shall send back the entire case records to the trial court along with a copy of the judgment. All pending interlocutory applications will stand dismissed. **Sd/A.HARIPRASAD, JUDGE.** amk //True Copy// P.A to Judge