M. Kuttyan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 5TH DAY OF MARCH 2013/14TH PHALGUNA 1934 Crl.Rev.Pet.No. 1453 of 2002 (M) --------------------------------- CRA 266/1998 ON THE FILE OF COURT OF SESSION,KASARAGOD SC 23/1998 OF ASSISTANT SESSIONS COURT,HOSDRUG REVISION PETITIONER(S)/APPELLANT/ACCUSED:- ----------------------------------------- M.KUTTYAN, S/O. APUDEN, VELUTHOLI, PANAYAL VILLAGE. BY ADVS.SRI.M.THAMBAN SMT.T.SUDHAMANI RESPONDENTS/COMPLAINANT & STATE:: ------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, BEKAL POLICE STATION. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY P.P. SRI.BIJU MEENATTOOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.Appln.No.8114/2002 in Crl.R.P.No.1453/2002 Dismissed. 5-3-2013 **==> picture [181 x 12] intentionally omitted <==** /true copy/ P.S. TO JUDGE. ## **P.D. RAJAN, J.** ------------------------------------------Crl. R.P. No.1453 of 2002 ---------------------------------------------Dated this the 5[th] day of March, 2013 ## **ORDER** Revision petitioner was convicted by the trial court under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of `1,00,000/-, in default to undergo simple imprisonment for a further period of one year. An appeal filed by him was dismissed by the Sessions Court, Kasaragod confirming the conviction passed by the trial court, but modified the sentence to rigorous imprisonment for one year. Challenging the said conviction and sentence, this revision petition has been filed. 2. Prosecution case is that on 13.8.1997 at about 5 p.m., the Sub Inspector of Police, Bekal Police Station was conducting patrol duty with police party and when they reached at Periyattadukkam, the petitioner was found CR RP 1453/2002 2 standing by the side of the road with a bag and on seeing the police party, he tried to flee from there. The police party suddenly intercepted him and on inspection of the bag, they detected 80 packets, each containing 100 ml. of Karnataka made arrack. After preparing a mahazar, the arrack was seized and the revision petitioner was arrested from the spot itself. Subsequently, police registered a crime and after completing the investigation, they laid charge before Judicial First Class Magistrate Court-II, Hosdurg and from there it was committed to Sessions Court, Kasargod and for rial, the case was transferred to Asst. Sessions Judge, Hosdurg. 3. In the trial court prosecution examined PW1 to PW5 and marked Exts.P1 to P5 and admitted MOs 1 to 3 in evidence. The incriminating circumstances brought out in evidence were denied by the petitioner while questioning u/s 313 Cr.P.C. The trial court convicted him under section 55(a) of the Abkari Act. Aggrieved by that, he preferred an appeal in the first appellate court where the conviction CR RP 1453/2002 3 passed by the trial court was confirmed and modified the sentence. 4. Heard both sides. The learned counsel appearing for the revision petitioner contended that MOs 1 to 3 were not properly labelled and sealed at the time of seizure, which caused prejudice to the petitioner. Moreover, one of the sample bottles seized from the place of occurrence was not produced before the court. There is two days delay in producing MOs before the court. Out of eighty packets seized, six packets were opened and sample was taken in two bottles only. 5. The learned Public Prosecutor strongly opposed the above arguments and contended that there was no illegality or irregularity in the sampling and labelling and no prejudice has caused to the revision petitioner in this case. The seized articles were produced before the court in time and there is no delay. 6. The offence was detected by PW1 who was the Sub Inspector, Bekal Police Station. According to him, on 13[th] CR RP 1453/2002 4 August, 1997 while he was conducting law and order duty within his jurisdiction, the revision petitioner was found standing on the side of the National Highway with a bag at Periattadukkam. On seeing the police party, he tried to ran away. PW1 intercepted him and examined MO1, in which he found 80 packets, each containing 100 ml. of Karnataka made arrack. PW1 opened 6 packets and took 375 ml. of sample in two bottles, sealed the same at the place of occurrence itself, after preparing Ext.P2 mahazar, and one bottle of arrack was sent for chemical analysis. He identified MOs.1 to 3. 7. PW2 who was the Police Constable attached to Bakel Police Station saw the seizure of the arrack. In his evidence he deposed that there were several shops at the place of occurrence and nobody was cited as a witness from there. He admitted signature in Ext.P3. PW3 is an independent witness who supported the seizure of arrack from the revision petitioner. He attested Ext.P3 seizure mahazar. He is residing at Periya far away from the place of CR RP 1453/2002 5 occurrence. PW4 is a Head Constable attached to the Bakel Police Station who conducted the investigation in the case. He prepared Ext.P4 and questioned the witnesses. He obtained Ext.P5 chemical examination report. PW5 admitted his signature in Ext.P4. 8. The offence was detected on 13-8-1997 at 5 p.m. and there is no delay in registering the case. The contraband articles were produced before the court on 14.8.1997 and even before getting chemical examination report, the final report was laid before court on 26.8.1997. The chemical examination was conducted on 22.10.1997. Ethyl alcohol test is positive. There is no dispute with regard to the result of chemical examination, but the revision petitioner contended that two samples were taken from the place of occurrence, one bottle was sent for chemical examination and the other bottle was not produced before the court for verifying its labelling with the other details. Moreover, the second bottle produced before the court is missing. It is the admitted case that the sample CR RP 1453/2002 6 bottles were produced before the court, of which one of the bottle was sent for chemical examination, and Ext.P5 report was received. No question was asked by the learned counsel for the revision petitioner in the trial court with regard to sampling. 9. The offence was detected by PW1 who was an empowered officer as per the Abkari Act. The investigation was conducted by PW4 Head Constable who is not an empowered officer to discharge all the duties conferred on Abkari Officer as per G.O.(P) No.69/96/TD dated 29-3-1996 in S.R.O. No.321/96. Learned counsel for the revision petitioner contended that this would cause prejudice to the revision petitioner. It is true that the Magistrate can take cognizance of the offence only on the basis of a report filed by an Abkari Officer. An Abkari Officer is defined under sub-section (2) of Section 3 of the Abkari Act, which reads as follows:- “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Ss.4 or 5.” CR RP 1453/2002 7 10. As per G.O.(P) No.69/96/TD dated 29-3-1996 in S.R.O. No.321/96, all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General Executive Branch of the Police Department are appointed to exercise all the powers and to discharge all the duties conferred and imposed on “Abkari Officers”. The investigation conducted by PW4, who is a subordinate officer of PW1, would cause prejudice to the revision petitioner. Therefore, I am of the view that in the absence of any notification under sections 4 and 5 of the Abkari Act, the delegation of investigation to a nonempowered officer (PW4), as per the direction of PW1, is not allowable as per the spirit of the above enactment. Considering the gravity of the offence, the investigation must always be by an empowered officer, since deterrent punishments are provided under section 55 (a) of the Abkari Act . 11. There were serious infirmities at the time of taking samples. MO1 to 3 were seized from the place of occurrence CR RP 1453/2002 8 and, according to PW1, it was sealed and labelled at the place of occurrence itself. The property list does not show that the balance contraband produced before the court was sealed at the place of occurrence. There was no mention with regard to such sealing and sampling at the time of seizure itself. This Court in Sasidharan v. State of Kerala (2007 (1) KLT 720) held thus : “It is true that the two independent attestors to Ext.P1 mahazar prepared by PW1 from the spot itself, have not been examined by the prosecution. One of those independent witnesses was no more and the other witness was not available. But the evidence of PWs 1 and 2 is quite credible to show that the accused was apprehended with a can allegedly containing contraband arrack. Notwithstanding the physical confirmation by PW1 of the contents in the can to be arrack by taste and smell the prosecution was not content with that identification. That is why PW4 filed the forwarding note before the court for taking sample and despatching the same for chemical examination. Indeed, the law also insists on such a course of action (see AIR 1967 SC 1550 - State of A.P. v. Madiga Boosenna & Ors. and 1970 KLT 427 Muthan Ankannithu v. State of Kerala). But there is no evidence to show that sample was taken from the CR RP 1453/2002 9 can produced in court and that it was the said sample which was tested by the Chemical Examiner. The property list shows that the can which was received in court on 10.2.1998, was directed to be returned to the Excise Inspector himself for safe custody after taking sample therefrom. The said endorsement on the reverse of the property list does not prove that a sample was drawn from the can which was produced in court. The thondy clerk, who was in charge of the M.O. produced in court, was not examined nor was any proceedings prepared and produced in this case to show that sampling was done in this case. Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatched, the Prosecution cannot be held to have brought home the offence against the appellant. There is no evidence to show that the sample, which was analysed under Ext.P5 chemical report, was the sample taken from the can allegedly seized from the accused. When the sample changed hands before reaching the Chemical Examiner the Prosecution had to necessarily examine the various persons who were in custody of the sample to prove that while in their custody the seals on the sample had not been tampered with (see AIR 1980 SC 1314 CR RP 1453/2002 10 State of Rajasthan v. Daulat Ram and 1993 (2) KLT 550 SC - Valsala v. State of Kerala). The prosecution had a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof condition. For this, there is no evidence. ... M.O.1 can which was produced in court from the custody of PW4 was an empty can on which there was no seal or label at all. Every such can will look alike and it is really surprising that PWs.1 and 2 who were testifying before court after 5 years of detection had no difficulty to identify M.O.1 as the can which was allegedly seized from the appellant. It is not possible to accept the identification of the can by such officers who are not possessed of superhuman powers of recollection.” 12. In this case PW1 deposed that he took 6 packets of arrack, opened the same and prepared 2 samples each in 375 ml. capacity bottles. According to him, he labelled the bottles and sealed the same in the presence of independent witness. One of the bottles was sent for chemical examination. After obtaining the chemical examination, the sample bottle was not returned for verifying the sampling CR RP 1453/2002 11 and labelling. The other bottle was found missing and not marked in the trial court. MO1 is the carry bag, MO2 is empty six packets and MO3 is 74 packets of Karnataka arrack. In the evidence of PW1 it is clear that the place of occurrence is by the side of National Highway where several people were gathered and none of them were cited as a witness at the time of sampling and seizure. The infirmity in not producing the other sample bottle creates doubt in the credibility of the prosecution case. In Ext.P3 seizure mahazar it was mentioned that sample bottles were sealed in the presence of independent witness but the other sample bottle which was in the custody of the investigating officer has not been produced before court. The witness could not identify those sample bottle, which was allegedly sealed at the place of occurrence. Therefore, it is difficult to believe the story of taking sample and the petitioner is entitled to benefit of doubt. Moreover, there is no independent corroboration to the prosecution case also. Local witnesses who were available were not cited as CR RP 1453/2002 12 witnesses. PW3 who supported the case of seizure belongs to Periya is not a witness of that locality. This create doubt in the credibility of the alleged seizure. ## 13. The Supreme Court in Megha Singh V. State of Haryana (AIR 1995 SC 2339) held thus: “4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the PWs.2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW-3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.” CR RP 1453/2002 13 14. Considering the entire evidence in this case, I find that the investigation was conducted by PW4 a nonempowered officer and the final charge was laid by the detected officer. There is no independent corroboration to the prosecution case and no credibility in taking the sample, which would cause prejudice to the revision petitioner. 15. In the circumstances, conviction and sentence passed by the courts below against the revision petitioner under section 55(a) of the Abkari Act are set aside and the revision petitioner is acquitted. Accordingly, the revision petition is allowed. ## **P. D. RAJAN, JUDGE.** acd/vn/nkm CR RP 1453/2002 14 **P.D. RAJAN, J.** ------------------------------------Crl. R.P. No.1453/ 2002 ------------------------------------- ## **ORDER** 5[th] day of March, 2013