Kumari w/o Sudhakaran and Sudhakaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 1[ST] DAY OF JULY 2021 / 10TH ASHADHA, 1943** **CRL.A NO. 2486 OF 2006** **AGAINST THE JUDGMENT IN SC 407/2005 OF ADDITIONAL SESSIONS** **COURT (ADHOC I), MANJERI, MALAPPURAM** ## **APPELLANT/ACCUSED:** 1 **KUMARI W/O.SUDHAKARAN, PALLIVILA VALAPPIL, ALEMCODE, PONNANI, MALAPPURAM DISTRICT.** 2 **SUDHAKARAN, S/O.BALAKRISHNAN PALLIVILA VALAPPIL, ALEMCODE, PONNANI, MALAPPURAM DISTRICT.** BY ADV SRI.BABU S. NAIR **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, PONNANI EXCISE RANGE-, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM, KOCHI.** **BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ** ## **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.2486 of 2006 2 ## **K.BABU, J.** **========================= Crl.A No.2486 of 2006** **==========================** Dated this the 1[st] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 7.12.2006, passed by the Additional Sessions Judge (Adhoc-I), Manjeri, in S.C.No.407/2005, the two accused have preferred this appeal. The trial court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act and sentenced them to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs.1,00,000/- each. 2. The prosecution case is that on 9.5.2003 at 7.30 pm, the accused were found in possession of arrack for sale at their residence at Alamcode. 3. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Ponnani. The case was committed to the Sessions Court, Manjeri from where it was made over to the Crl.A No.2486 of 2006 3 Additional Sessions Court (Adhoc)-I, Manjeri. On appearance of the accused charges were framed against them for offences punishable under Sections 55(a) and 8(1) of the Abkari Act. The accused pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offences. 4. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P10 and MOs 1 to 3. 5. After closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C were recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused are guilty of offence under Section 8(2) of the Abkari Act and they were convicted thereunder. 6. Heard Sri.Babu S.Nair, the learned counsel appearing for the appellants/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants raised the following grounds to challenge the judgment of conviction and Crl.A No.2486 of 2006 4 sentence. i) The prosecution failed to establish the conscious possession of the contraband substance by the accused. ii) The prosecution failed to establish that the contraband allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## THE POINT 10. PW1, the Excise Circle Inspector, Anti Narcotic Special Squad, Malappuram on 9.5.2003 detected the offence. PW1 gave evidence that on 9.5.2003 while he was on patrol duty along with other excise officials, he got reliable information that the accused were indulging in sale of arrack at their house. PW1 searched Crl.A No.2486 of 2006 5 the residence of the accused. PW1 has further given evidence to the effect that the excise party led by him recovered two plastic bottles containing 2.5 litres of liquid, from the north western room of the residence of the accused, which they ascertained as illicit arrack. According to PW1, on seeing the excise party three persons ran away from the scene. PW1 further deposed that accused No.2 who is the husband of the accused No.1 was not available. As Woman Guard was not available, accused No.1 could not be arrested, PW1 added. PW1 prepared Ext.P2 seizure mahazar and seized the contraband substance, a glass tumbler and a sum of Rs.320/-. According to PW1 he collected sample in a bottle having a capacity of 375 ml and sealed the same at the place of occurrence. PW1 prepared Ext.P3 search list. He subsequently prepared Ext.P4 occurrence report. The documents prepared at the scene of occurrence and the occurrence report were entrusted to Excise Range Officer, Ponnani. PW2 supported the version of PW1. PW3 and PW4, the independent witnesses, did not support the prosecution version. PW6 is the Secretary of Alamcode Grama Panchayath within the territorial limit of which the residence of the accused is situated. PW7, the Excise Circle Inspector, Ponnani, completed investigation and submitted final report on 28.9.2004. 6 Crl.A No.2486 of 2006 11. The learned counsel for the appellants/accused submitted that the prosecution failed to establish the conscious possession of the contraband by the accused. Both the accused were not arrested from the scene of occurrence. According to the prosecution, the place of occurrence is a residential building by name Palliyile Valappil at Alamcode Desom in Ponnani Taluk. The specific case of the accused is that the residence referred to in the prosecution records does not belong to them and that they were not in possession of the said building. The prosecution examined PW6, the Secretary of Alamcode Grama Panchayath, to establish that the above referred residence was in the possession of the accused. 12. PW6 stated that the records maintained at the Grama Panchayath Office do not show that the residential building from where the contraband substances were recovered was in the possession of the accused. The prosecution failed to produce any other material to establish that the said residential building was possessed by the accused. It is pertinent to note that, according to the prosecution, on seeing the excise party 2-3 persons ran away from the scene of occurrence. In the absence of any convincing materials to prove the possession of the residential building by the accused, in the above circumstances, a doubt Crl.A No.2486 of 2006 7 arises as to the possession of the contraband substance by the accused. Admittedly, no contraband substance was recovered from the direct possession of the accused. Even if it is assumed that the accused No.1 was found in the scene, it was the duty of the prosecution to establish that she was in conscious possession of the contraband substance allegedly recovered. No convincing materials have been placed before the court by the prosecution to connect the accused with the contraband substance. 13. Ext.P2, seizure mahazar, does not contain any narration as to the nature and description of the seal, stated to have been affixed on the bottle containing the sample. Neither PW1 nor PW2 gave evidence before the court as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P2, a contemporaneous document evidencing seizure, is absolutely silent as to this aspect. 14. As per the prosecution, PW1 collected 180 ml of arrack from the can seized from the place of occurrence in a 375 ml. bottle. Ext.P10, certificate of chemical analysis, shows that the Chemical Analyst received one sealed 180 ml bottle containing 180 ml of clear and colourless liquid alleged to be arrack. When the capacity of the bottle in which sample was collected is 375 ml and the capacity of the bottle reached the Crl.A No.2486 of 2006 8 hands of the analyst is 180 ml, the irresistible conclusion is that the sample collected at the scene has not reached the Chemical Examiner's laboratory. 15. Yet another aspect to be noted is that Ext.P8, copy of the forwarding note, does not contain the date on which the sample was sent to the Chemical Examiner's laboratory. This Court is in the dark as to when the sample bottle was sent to the Chemical Examiner's laboratory. This aspect becomes more important when Ext.P10, chemical analysis report, lacks the number and date of the letter by which the sample was forwarded to the laboratory. The above mentioned discrepancies lead me to conclude that the prosecution failed to establish that the sample stated to have been collected from the place of occurrence has not ultimately reached the hands of the Analyst. 16. It is well settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample which was drawn from the contraband substance said to have been possessed by the accused (vide: **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314], Valsala v. State of Kerala (1993 KHC 798)** and **Sathi v. State of Kerala** Crl.A No.2486 of 2006 9 ## **(2007(1) KHC 778)** 17. The upshot of the above discussion is that the prosecution failed to establish any material to connect the accused with the contraband articles. The conviction entered and sentence passed by the learned Additional Sessions Judge, (Adhoc)-I, Manjeri ignoring these vital aspects, cannot be sustained. The appellants/accused are therefore not guilty of the offences punishable under Section 8(2) of the Abkari Act. They are acquitted of the charges. They are set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU** **JUDGE** **ab**