Kovvapurath Ramachandran @ Chandran v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 03RD DAY OF JULY 2020 / 12TH ASHADHA, 1942** **Crl.Rev.Pet.No.167 OF 2013** **AGAINST THE JUDGMENT IN CRA 12/2005 DATED 27-02-2012 OF SESSIONS COURT, THALASSERY CONFIRMING THE CONVICTION AND SENTENCE PASSED BY THE ASSISTANT SESSIONS JUDGE, PAYYANNUR IN SC 114/2001 DATED 08-12-2004** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **KOVVAPURATH RAMACHANDRAN @ CHANDRAN AGED 40 YEARS S/O. RAMAN, KOOVAPURATH HOUSE, PERUNTHATTA AMSOM THANDANATTUPOYIL, P.O.ARAVANCHAL, TALIPARAMBA TALUK KANNUR DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.A.ARUNKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE -REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF EKRALA, ERNAKULAM. 682 031.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17.06.2020, THE COURT ON 03.07.2020 PASSED THE FOLLOWING:** Crl.R.P.No.167/2013 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.167 of 2013 ---------------------------------------Dated this the 3[rd] day of July, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.114/2001 on the file of the Court of the Assistant Sessions Judge, Payyannur. 2. The prosecution case is that, on 15.08.1999, at about 16:45 hours, behind a bus waiting shed at a public road at the place Para in Perunthatta Village, PW3 Sub Inspector found the petitioner/accused having in his possession a can containing 1.500 litres of arrack, which was intended for sale. 3. The trial court framed charge against the petitioner for the offence punishable under Section 58 of the Abkari Act. The petitioner pleaded not guilty to the offence and claimed to be Crl.R.P.No.167/2013 3 tried. 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P8 documents and MO1 and MO2 material objects. No evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 58 of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of four months. 6. The petitioner filed Crl.A.No.12/2005 before the Court of Session, Thalassery challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the accused in this revision petition. Crl.R.P.No.167/2013 4 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 9. PW3 is the Sub Inspector who detected the offence. He has deposed with regard to the occurrence and seizure of MO2 can containing arrack from the possession of the accused. PW1 is the independent witness examined by the prosecution. He admitted his signature in Ext.P1 seizure mahazar. PW2 is only an attestor to the scene mahazar. PW4 is the Sub Inspector who conducted the investigation of the case. 10. Ext.P8 is the chemical examination report in respect of the sample of liquid which was sent for analysis. It shows that the sample of liquid contained 32.02% by volume of ethyl alcohol. 11. Learned counsel for the petitioner has contended that the solitary testimony of the detecting officer is not reliable and that conviction entered against the petitioner on such evidence is not legal and proper. Crl.R.P.No.167/2013 5 12. There is no legal bar to convict an accused on the basis of the solitary evidence of a police officer. It is trite that when the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence. It is for the accused, through cross- examination or through any other materials, to show that the evidence of the official witnesses is either unreliable or at least unsafe to be acted upon. There is no legal proposition that evidence of official witnesses unless supported by independent evidence is unworthy of acceptance. Evidence of police or excise officers cannot be discarded merely on the ground of their desire to see the success of the case. However, prudence requires that the evidence of such officers who are interested in the outcome of the result of the case shall be carefully scrutinized and independently appreciated. Mere fact that they are official witnesses does not by itself give rise to any doubt about their creditworthiness. If the testimony of a police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds that the Crl.R.P.No.167/2013 6 evidence of such a witness is unreliable and untrustworthy, the court shall disbelieve him. Credibility of a witness has to be tested on the touchstone of truthfulness and trustworthiness. Evidence of police officers must be considered on its own merits and its own inherent improbabilities. 13. PW3 has given evidence that he arrested the accused at the spot at 16.50 hours after preparing Ext.P3 arrest memo. It is his evidence that he reached the police station with the accused and the articles and the records and registered Ext.P4 F.I.R. The time of arrest is seen recorded in the arrest memo as 16.45 hours. Ext.P4 F.I.R shows that it was registered at 19.00 hours as Crime No.187/1999 of Peringome police station. But, the arrest memo, which was prepared by PW3 on arresting the accused at 16.45 or 16.50 hours on 15.08.1999, bears the crime number of the case, which was registered at 19.00 hours on the same day. This creates doubt upon the veracity of the testimony of PW3 regarding the incident. Crl.R.P.No.167/2013 7 14. Presence of the crime number of the case in the arrest memo allegedly prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution (See **Zofar v. State : 2000 Cri.L.J 1589, Kailash @ Kuddu v. State : 2000 Cri.L.J 2134** and **Karunakar Bindhani v. State of Kerala : 2017 (1) KLD 48).** When it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the Crl.R.P.No.167/2013 8 ## prosecution (See **Shyam Bharia v. State of Madhya Pradesh:** **2005 Cri.L.J 1907** ). It creates doubt as to the manner in which seizure of the contraband substance and the arrest of the accused were effected by the police officers (See **K. Kalyani v. State : MANU/TN/1070/2019** ). 15. Ext.P1 seizure mahazar, the contemporaneous document prepared by PW3 at the spot of the occurrence, contains a recital that the sample bottle was sealed and label, bearing the signature of PW3 and the witnesses and the accused, was affixed on it. PW3 has given evidence also to that effect. Ext.P5 is the property list prepared by PW3 for producing the material objects before the court. The description of the sample bottle given in Ext.P5 property list also shows that it was sealed and labelled when it was produced in the court. Ext.P7 is the copy of the forwarding note prepared by PW3 for sending the sample for chemical analysis. The description of the sample bottle given in Ext.P7 forwarding note does not show that there was any label on it. This creates suspicion as to whether the Crl.R.P.No.167/2013 9 very same sample which was allegedly drawn at the spot of the occurrence and produced before the court was forwarded to the laboratory for analysis as per Ext.P7 forwarding note. Then, there is no assurance that the very same sample allegedly drawn by PW3, at the spot of the occurrence, from the liquid in the can was forwarded for analysis and tested in the laboratory and that Ext.P8 chemical examination report relates to that sample. 16. The mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be corelated (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** ). 17. The description of the can given in Ext.P5 property list does not show that there was any seal or label on it. In the absence of any identifying marks on the can containing the residue which was produced before the court, identification of MO2 in the court by PW3 as the can containing the arrack which was seized by him as per Ext.P1 mahazar, cannot be accepted as Crl.R.P.No.167/2013 10 reliable and trustworthy. 18. In the aforesaid circumstances, implicit reliance cannot be placed upon the testimony of PW3 regarding the occurrence. Conviction entered against the accused solely on the evidence of PW3 cannot be sustained. 19. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 58 of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge