K.K. Tojo v. The Sub Inspector of Police, Thiruvambady Police Station, Kozhikode District and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** **Crl.Rev.Pet.No.2376 OF 2012** **AGAINST THE JUDGMENT IN CRL.APPEAL NO. 280/2012 OF SESSIONS COURT,KOZHIKODE DIVISION DATED 09.08.2012** **AGAINST THE JUDGMENT IN SC NO.579/2009 OF PRINCIPAL SUB COURT, KOZHIKODE DIVISION DATED 23.03.2012** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **K.K.TOJO AGED 43 YEARS S/O. KURIAKOSE, KALLINGAL HOUSE, SANTHI NAGAR.P.O., KODENCHERY AMSOM KOZHIKODE DISTRICT.** **BY ADVS. SRI.NIRMAL. S SMT.VEENA HARI** ## **RESPONDENT/COMPLAINANT/STATE:** **1 THE SUB INSPECTOR OF POLICE THIRUVAMBADY POLICE STATION, KOZHIKODE DISTRICT.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.2376 OF 2012** 2 ## _**ORDER**_ **Dated this the 17[th] day of December 2020** The revision petitioner was the accused in SC No.579 of 2009 on the file of the Principal Assistant Sessions Court, Kozhikode and the appellant in Crl.Appeal No.280 of 2012 on the file of the Court of Session, Kozhikode Division. The offence alleged against the accused is punishable under Section 8 (2) of the Kerala Abkari Act. _2._ The prosecution case in brief is that, on 01.04.2009 at 1.00 a.m, Pw4, the Sub Inspector of Police Thiruvambady Police Station and party were on night patrol duty within the jurisdiction of Thiruvambady Police Station and while so, they saw a motorcycle bearing registration No.KL 11/N 9697 coming from Pulloorambara side. The 1[st] accused was riding the motorcycle and the 2[nd] accused was in its pillion holding MO2 plastic bag containing MO1 Can. On suspicion, PW4 intercepted the motorcycle on the public road infront of “Jose Brothers Textiles” at Thiruvambady and questioned the 2[nd] accused touching MOs 1 **Crl.Rev.Pet.No.2376 OF 2012** 3 and 2. The 2[nd] accused replied that the plastic bag contained some house hold articles. On examination of the plastic bag, it was found that MO2 plastic Can containing seven liters of arrack was concealed in MO1 plastic bag. Thereupon, both the accused were arrested in accordance with law. Ext.P1 seizure mahazar was prepared, brought them to the police station where PW4 registered Ext.P5 FIR for the offence punishable under Section 55( a) of the Abkari Act. Thereafter, PW4 questioned the witnesses, conducted investigation, completed formalities and filed final report before the Judicial First Class Magistrate Court-III, Kozhikode. 3. On committal, the case was transferred to the Principal Assistant Session Court, Kozhikode for trial and disposal. On the appearance of the accused, after having heard both sides, trial court framed charge against the accused under Section 8(1) and (2) of the Abkari Act. Charge was read over to which the accused pleaded not guilty. 4. In the trial that followed, PWs 1 to 8 were examined and marked Exts.P1 to P12 and MOs 1 and 2 on the side of the **Crl.Rev.Pet.No.2376 OF 2012** 4 prosecution. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. When the accused was called upon to enter on their defence, no evidence was adduced by the 1[st] accused. However, for and on behalf of the 2[nd] accused, DW1 was examined. 5. On appreciation of the evidence, the trial court acquitted the 1[st] accused for the offence punishable under Section 8(1) and (2) of the Abkari Act. However, the 2[nd] accused was convicted and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo simple imprisonment for six months more. Challenging the acquittal, the 2[nd] accused preferred Crl.A.No.280 of 2012 before the Sessions Court, Kozhikode. By its judgment dated 9.8.2012, the learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. Feeling aggrieved, the 2[nd] accused is before this Court in revision. 6. Learned counsel for the revision petitioner submitted **Crl.Rev.Pet.No.2376 OF 2012** 5 that the 2[nd] accused was only a pillion rider on the motorcycle bearing registration No.KL 11/N 9697 on the date of occurrence. The 1[st] accused was in fact driving the vehicle. On appreciation of the evidence, the trial court entered a finding that the 1[st] accused only offered a lift to the 2[nd] accused and the 1[st] accused had no nexus or connection with the crime. Accordingly, the 1[st] accused was acquitted. The learned counsel for the revision petitioner submitted that the 2[nd] accused was convicted and sentenced on the ground that he was found holding MO1 plastic bag in which MO2 Can was concealed containing 7 litres of arrack. The learned counsel for the revision petitioner contended that the prosecution has not succeeded in establishing that the 2[nd] accused was consciously in possession of the contraband in contravention of the provisions of Section 8(1) and (2) of the Abkari Act and the Rules framed thereunder. It is further submitted that PW4, who detected the offence and registered Ext.P5 FIR stated in clear terms that 500 ml of arrack was sampled in connection with the case at the time of occurrence. With reference to Ext.P5 FIR, it is submitted that the quantity of contraband seized in accordance **Crl.Rev.Pet.No.2376 OF 2012** 6 with Rules is seen corrected subsequently and PW4 and PW1 adduced oral evidence in accordance with the correction made. Learned counsel further submitted that in fact 375 ml was taken as sample which was later corrected as 500 ml without proper authorization. Regarding the sample seal, it is submitted that PWs 1, 2 and 4 have no consistent case and no sample seal is seen affixed in Ext.P1 seizure mahazar in accordance with the Rules. 7. Refuting the contentions of the learned counsel for the revision petitioner, the learned Senior Public Prosecutor submitted that the 2[nd] accused was arrested from the spot with MO1 and MO2 containing 7 liters of arrack. It is further submitted that both the trial court and appellate court appreciated the evidence on record and concurrently entered a finding that the 2[nd] accused committed the offence punishable under Section 8(1) and (2) of the Abkari Act. It is thus submitted that unless the judgment of conviction and sentence is vitiated by material irregularities or infirmities, it is not just and proper to interfere in exercise of powers under Section 401 of the Cr.P.C. 8. Heard Smt.Veena Hari, the learned counsel for the **Crl.Rev.Pet.No.2376 OF 2012** 7 revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the State. 9. PW4 is the Sub Inspector, Thiruvamabady Police Station, who detected the offence and PW3 is an independent witness cited by the prosecution. It contended that PW3 turned hostile to the prosecution during trial. However, he admitted his signature in Ext.P1 seizure mahazar and Ext.P2 arrest memo. PW1, the Assistant Sub Inspector of Police and PW2, a Civil Police Officer, accompanied PW4 on the date of occurrence. PW5 is the Village Officer, who prepared Ext.P10 site plan and PW6 is an attestor to Ext.P11 scene mahazar. PW7 is the registered owner of motorcycle bearing registration No.KL 11/N 9697 and PW8 is the Sub Inspector, who investigated the case. 10. It is clear from the evidence of PW7 that the 1[st] accused was not a registered owner of the motorcycle bearing registration No.Kl 11/N 9697. PW4, the Sub Inspector testified before court that he arrested accused 1 and 2 and seized MOs 1 and 2 from the custody of the 2[nd] accused by virtue of Ext.P1 seizure mahazar. He also stated that on examination it was disclosed that MO2 **Crl.Rev.Pet.No.2376 OF 2012** 8 containing 7 litres of contraband liquor. On being satisfied that MO2 contained contraband liquor, he arrested the accused 1 and 2, seized the contraband articles including the motorcycle and MOs 1 and 2. He would say that from the total quantity of arrack, he took samples in two bottles of 500 ml capacity for chemical examination. He would say that the two sample bottles were well packed and sealed and label was affixed on the samples. He also stated that the plastic Can containing remaining quantity of arrack was also well packed and on the said Can also seal was affixed. According to him, he prepared Ext.P1 seizure mahazar. On going through Ext.P1 seizure mahazar, it is clear that it does not contain the sample seal so affixed by PW4 at the time of preparing Ext.P1 seizure mahazar. In this connection, PW4 stated that he had no personal seal whereas he had affixed his official seal on the samples. On the other hand, PW1, the Assistant Sub Inspector, who alleged to have accompanied him on the date of occurrence stated before court that PW4 had affixed his personal seal on the two sample bottles and the requisite documents prepared at the time of search and seizure. PW2, one of the Civil Police Officers **Crl.Rev.Pet.No.2376 OF 2012** 9 present along with PWs 2 and 4 stated that PW4 affixed his seal under the initial 'K.P”. On going through the evidence of PWs 1, 2 and 4, there is nothing on record to show that PW4 had affixed sample seal on the sample bottles and other requisite documents as spoken by PW4. His main case is that he had no personal seal and he affixed his official seal on the requisite documents. However, on a perusal of Ext.P1, it is clear that no sample seal was affixed therein. 11. In an abkari case, it is necessary on the part of the prosecution to prove that the act of sampling was done in accordance with Rules at the time of search and seizure. In the case on hand, search and seizure was done by PW4. In fact, he prepared Ext.P5 FIR under Section 55(a) of the Abkari Act. Going by Ext.P5 FIR, it is clear that he had sampled 500 ml of arrack. It is crystal clear that 375 ml is written initially which is later corrected as 500 ml without proper authorization. The appellate court mainly relied on a decision of this Court in **C.H.Kunhikannan v. State** [2006(4)KLT 469] and held that mere clerical errors in the seizure mahazar and property list **Crl.Rev.Pet.No.2376 OF 2012** 10 regarding capacity of sample bottle is not fatal. Going by the decision in **C.H.Kunhikannan** 's case (supra), it is clear that the capacity of sample bottle is not fatal when FIR states it correctly. The question is whether the sample taken is correctly stated in the FIR is material to decide the genuineness of the action taken by the detecting officer. The learned counsel for the revision petitioner handed over a copy of the FIR supplied to the accused which would _inter alia_ show that 375 ml was taken as sample. When PW4 was cross-examined, specific question was asked touching the correction made in Ext.P5 FIR. PW4 admitted that correction is made in Ext.P5 FIR. If correction is made in Ext.P5 FIR subsequently, the question arises for consideration is whether Ext.P5 FIR can be taken as correct. In the facts and circumstances, it is clear that this is not a clerical error as held in **C.H.Kunhikannan** 's case (supra). Ext.P5 FIR clearly says that 500 ml was taken as sample whereas a copy served to the accused would indicate that 375 ml was taken as sample. 12. In the case on hand, PW4, the detecting officer who was drawn sample failed to give evidence as to the nature of seal **Crl.Rev.Pet.No.2376 OF 2012** 11 affixed on the bottles containing sample. The nature of the seal used has not been specifically mentioned in Ext.P1 seizure mahazar. Further, the specimen of the seal has not been produced in the court. The specimen of seal has not been mentioned in the seizure mahazar to satisfy the genuineness of the sample. It is true that Ext.P8 forwarding note contains a sample seal. It is not possible for the court to compare the specimen of the seal provided in the forwarding note with the seal affixed on the sample bottle in view of the apparent difference of version testified by PWs 1, 2 and 4 in this case. When the specimen of seal affixed on the sample bottle is not produced before court and forwarded to the chemical examiner for verifying to ensure that the sample was so provided, does not tally with the seal affixed on the sample bottle, no evidentiary value can be given to Ext.P9 chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering. 13. On a perusal of the entire evidence, it is clear that the 1[st] **Crl.Rev.Pet.No.2376 OF 2012** 12 accused was acquitted by the trial court on technical grounds that he was not holding MO2 Can at the time of search and seizure. Merely because the 2[nd] accused was carrying MOs 1 and 2 as pillion rider, he was convicted and sentenced for the offence punishable under Section 8(2) of the Abkari Act. It is disclosed from the evidence adduced that correction is incorporated in Ext.P5 mahazar without proper authorization touching the act of sampling done by the detecting officer. Ext.P1 seizure mahazar does not contain the sample seal affixed. Since the act of sampling was not done in accordance with law, both the trial court and appellate court analyzed the evidence wrongly and convicted and sentenced the accused for the offence punishable under Section 8(2) of the Abkari Act. The above mentioned aspects have not been property considered by the courts below while appreciating the prosecution evidence. In such circumstances, conviction entered against the revision petitioner/2[nd] accused cannot be sustained. In the result, the revision petition is allowed. The judgment of conviction passed against the revision petitioner/2[nd] accused by **Crl.Rev.Pet.No.2376 OF 2012** 13 the trial court under Section 8(1) and (2) of the Abkari Act, which was confirmed by the appellate court stands set aside. The revision petitioner/2[nd] accused is found not guilty for the offence under Section 8(2) of the Abkari Act and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. During the pendency of the revision if any fine amount has been deposited by the accused before the trial court pursuant to the direction of this Court, the same shall be refunded to the revision petitioner/2[nd] accused, in accordance with law. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** dlk/03.11.2020