Kunjumon v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 CRL.APPEAL NO. 1133 OF 2007** **AGAINST THE JUDGMENT IN SC 179/2005 OF ADDITIONAL** **DISTRICT COURT (ADHOC)-II, ALAPPUZHA (CP 154/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM)** ## **APPELLANT/ACCUSED:** ## **KUNJUMON,** **S/O SAMUEL, SAJI BHAVANAM, PUTHENCHANTHA P.O., VALLIKUNNAM, ALAPPUZHA DIST.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.P.G.GOPINATHA PILLAI** ## **RESPONDENT/RESPONDENT:** **STATE OF KERALA** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (CRIME NO.9/2003 OFL THE MAVELIKKARA EXCISE RANGE).** **BY SMT.PUSHPALATHA M.K.,SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1133 of 2007 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.1133 of 2007 ----------------------------------------------------------Dated this the 10[th] day of January, 2024** ## **JUDGMENT** The accused in S.C.No.179/2005 before the Additional Sessions Judge (Fast Track Court-II), Alappuzha, is the appellant. He stands convicted and sentenced for an offence punishable under Sections 8(1) and (2) of the Kerala Abkari Act, 1077. He was imposed with a sentence of simple imprisonment for one year and to pay fine of Rs.1,00,000/-. Challenging the legality and correctness of the said judgment, this appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). 2. The allegations against the appellant are that at 05.30 p.m. on 13.01.2003 he was found in possession of 1½ litres of arrack in a plastic bottle having capacity of two litres on the western side of KIP canal culvert about 20 metres on the western side of AGRM Higher Secondary School. 3 Crl.Appeal No.1133 of 2007 3. PW1 is the detecting officer, who arrested the accused and seized the contraband as per Ext.P1. He produced the accused along with the contraband before PW4, the Excise Inspector of Excise Range, Mavelikkara. The Excise Inspector of Mavelikkara produced the contraband along with the sample before the Judicial Magistrate of the First Class Court, Kayamkulam. Eventually on completion of the investigation, the final report was filed. On filing the final report, the learned Magistrate committed the case to Court of Sessions, Alappuzha. The learned Sessions Judge made over the case to the Additional Sessions Court Fast Track-II, Alappuzha for trial and disposal. Before that court the trial was held since the appellant denied the charge. PWs.1 to 5 were examined and Exts.P1 to P7 were marked. MO1 was identified. 4. During the examination under Section 313 of the Code, the appellant denied the incriminating circumstances against him and stated that he was innocent. No defence evidence was adduced. 4 Crl.Appeal No.1133 of 2007 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. PW1 is the Preventive Officer, who detected the offence. He deposed that at 5.30. p.m. on 13.01.2003, while he along with members of his patrol party reached near AGRM Higher Secondary School, found the appellant on the western side of the KIP canal culvert with a bottle in his possession. On suspicion, he was intercepted and inspected the bottle. It was found that the said bottle contained arrack. That lead to his arrest and seizure of the contraband in his possession. His further version is that he has prepared a sample of 200 ml. in a bottle having the capacity of 375 ml. and the bottle in the possession of the appellant was sealed after affixing label as per Ext.P1. He and the witnesses affixed signatures on the mahazar as well as the labels on the articles seized. 7. DW2 was a member of the patrol party. He was working as Excise Guard in the Excise Circle Office, Mavelikkara. He also deposed regarding the arrest of the appellant and the seizure of contraband, almost in terms of 5 Crl.Appeal No.1133 of 2007 what are stated by PW1 in court. He also stated that Ext.P1 was the mahazar prepared for the seizure of the articles. PW3 is one of the witnesses to Ext.P1. He admitted his signature in Ext.P1 mahazar and also on the label affixed on MO1, which is the bottle containing the contraband seized from the possession of the appellant. But he did not support the case of the prosecution on the other aspects. He denied the seizure of the contraband from the possession of the appellant. 8. The court below believed the oral testimony of PW1 and PW2 and held, even in the absence of independent evidence that the accused was arrested and the contraband seized from his possession. Having gone through the evidence of PW1 and PW2, which gets support from the contents of Ext.P1, the mahazar, which was prepared contemporaneously, I find no reason to upset the said findings of the court below. 9. In **Tahir v. State (Delhi) [(1996) 3 SCC 338],** while dealing with a similar question, the Apex Court stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence 6 Crl.Appeal No.1133 of 2007 of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.” ## 10. The Apex Court in **Karamjit Singh v. State** ## **(Delhi Administration) [AIR 2003 SC 1311]** held that,- “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” ## 11. In **Baldev Singh v. State Of Haryana [(2015)** **17 SCC 554]** the Apex Court reiterated that view. As stated, evidence of PWs.1 and 2 stands unimpeached despite detailed cross-examination. Ext.P1 renders necessary support to their oral evidence. Even in the absence of any independent evidence to support, evidence of PWs.1 and 2, in the light of the law laid down by the Apex Court in the aforesaid decisions, can be believed in order to find that MO1, which contained 1½ litres of contraband, was seized from the 7 Crl.Appeal No.1133 of 2007 possession of the appellant at about 5.30 p.m. on 13.01.2003. 12. The learned counsel for the appellant would submit that the evidence tendered by the prosecution to prove that the sample drawn from the contraband seized from the possession of the appellant was examined in the Chemical Examiners' Laboratory is unreliable. Ext.P7 is the report of chemical analysis. It is stated that sample were received in tamper proof condition. However, the learned counsel would submit that when it is evident from the oral testimony of PW4 that seal in the forwarding note, Ext.P6 was affixed by him at the Excise Office and no such seal is there in Ext.P1 mahazar, it creates doubt about the genuineness of the sample examined in this case. It is further contended that no specimen seal was affixed on the mahazar at the time of preparation and therefore it cannot be ensured that the sample prepared by PW1 at the place of occurrence itself reached the court and eventually the Chemical Examiners Laboratory in a tamper proof condition. Accordingly, the 8 Crl.Appeal No.1133 of 2007 learned counsel would submit that the evidence is totally insufficient to connect Ext.P7 report to the appellant and therefore, he is entitled for acquittal. 13. The learned Public Prosecutor, on the other hand, would submit that when the sample along with other articles and the accused were produced before the Excise Inspector, which is in terms of the provisions of Section 40 of the Abkari Act, the absence of specimen seal on Ext.P1 mahazar cannot be a reason to discard the case of the prosecution altogether. 14. In the above regard, the learned counsel for the appellant places reliance on **Manoharan v. State of Kerala [2021 (4) KHC 588]** and **Vijayan @ Puthoor Vijayan v. State of Kerala [2021 (5) KHC 347]** . In the aforesaid decisions, this Court took a consistent view that if the specimen seal is not affixed on the mahazar prepared at the time of seizure after preparing the sample, it cannot be ensured that the same sample was sent for chemical examination. When such a doubt arises on the evidence, the accused is entitled for an acquittal. When the law laid down 9 Crl.Appeal No.1133 of 2007 by this Court is to the effect that the specimen seal should be affixed on the mahazar, which is prepared at the time of detection and seizure, lack of such a seal in Ext.P1 is fatal to the prosecution and therefore the appellant is entitled to get an acquittal on that ground. 15. In the circumstances, the conviction of the appellant is unsustainable in law. This appeal is therefore allowed. On setting aside the judgment dated 22.06.2007 in S.C.No.179/2005, the appellant is acquitted. Sd/- ## **P.G. AJITHKUMAR, JUDGE** smf/dkr