M. Lalitha v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935 CRL.A.No. 1928 of 2003 ----------------------[AGAINST THE JUDGMENT IN SC 52/2001 of the ADDL.DISTRICT COURT (ADHOC-I), KASARAGOD DATED 14-11-2003] APPELLANT/ACCUSED: -----------------M.LALITHA,W/O.KRISHNAN, AGED 40 YEARS, MAITHADOM DESOM. MADIKKAI VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S)/COMPLAINANT: -------------------------THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING EXCISE INSPECTOR, NILESHWAR RANGE. BY PUBLIC PROSECUTOR SRI.N.SURESH. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 1928 of 2003 - E ----------------------------------------** Dated this the 8[th] day of January, 2014 ## **J U D G M E N T** Challenging the conviction and sentence imposed on the appellant for the offence under Section 55(g) of the Abkari Act, by judgment dated 14.11.2003 in S.C.No.52 of 2001 of the court of Additional Sessions Judge (ADHOC-I), Kasaragod, this appeal is preferred at the instance of the accused therein. 2. The prosecution case is that on 27.9.1998 at about 11 a.m., the accused was found in possession of 54 litres of wash fit for distillation of arrack in three metal containers of 18 litres capacity in the thatched shed near to her house at Madikai in contravention of the provisions of the Abkari Act and thus, she has committed the offence punishable under Section 55(g) of the Abkari Act. On completing the investigation, the Excise Inspector, Nileshwar Range preferred a report and subsequently, on the basis of which S.C.No.52 of 2001 was Crl.A.No.1928 of 2003 :-2-: instituted in the Sessions Court, Kasaragod from where the same was made over to the Assistant Sessions Court, Hosdurg and subsequently, the same was transferred to the present trial court for disposal. Thus, when the accused appeared, after furnishing the prosecution materials and hearing the prosecution as well as the defence, a formal charge was framed against her for the offence punishable under Section 55(g) of the Abkari Act and when the charge put to her, she denied the same and pleaded not guilty. Consequently, the prosecution, by examining Pws.1 to 6 and producing Exts.P1 to P6, adduced their evidence. MO1 series are also identified as material objects. The trial court finally accepted the prosecution case as established beyond reasonable doubt and the accused was found guilty under Section 55(g) of the Abkari Act and she is convicted thereunder. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for 3½ years and to pay fine of Rupees One lakh and in default of paying the fine amount, she is directed to undergo rigorous imprisonment for Crl.A.No.1928 of 2003 :-3-: another three months. Set off is allowed under Section 428 of the Cr.P.C. Challenging the above finding, the conviction and sentence, the appellant/accused preferred this appeal. 3. I have heard Sri.T.K.Vipindas, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State. 4. To prove the detection of the crime, the seizure of the contraband article and arrest of the accused, the prosecution has examined Pws.1 and 2, but PW2, who is an independent witness, turned hostile towards the prosecution. So, the prosecution was constrained to discharge the above responsibility, depending upon the evidence of PW1, the sole official witness, who detected the crime. Thus, when PW1 was examined, he had deposed that while himself and party were conducting patrol duty on 27.9.1998 and at about 11 a.m., when he reached at Maithedam Desom, he received information to the effect that wash was being handled near the house of the Crl.A.No.1928 of 2003 :-4-: accused and according to PW1, he reached the spot with witnesses and detected three metal containers, which contained about 54 litres of wash in front of the accused. According to PW1, the content of the tins is realised as wash by tasting and smelling. According to PW1, he had drawn the sample at the rate of 500 ml. each in three bottles, each having the capacity of 750 ml. and the sample was sealed and the accused was arrested and the material objects were taken into custody as per the mahazar. According to PW1, for further action, the accused as well as the material objects and the records were entrusted with the office of the Excise Range, Hosdurg. According to PW1, the arrest of the accused has been intimated to her mother. It is also his case that the remnants, after drawing the sample, were destroyed at the spot itself. Thus, when PW1 was examined, he had identified Ext.P1 seizure mahazar and also MO1 series of material objects. Though PW2 admitted his signature in Ext.P1, he turned hostile towards the prosecution. When PW3 the then Excise Circle Inspector of Hosdurg Crl.A.No.1928 of 2003 :-5-: Excise Range was examined, he had deposed that on receiving the accused as well as the contraband article, he prepared the occurrence report which he identified as Ext.P2. PW4 is the then Excise Range Inspector of Nileshwar Excise Range and when he was examined, he deposed that he had prepared another occurrence report and also prepared a forwarding note for sending the sample for chemical analysis report and thus, obtained a chemical analysis report. Thus, when PW4 was examined, Ext.P3 occurrence report, Ext.P4 forwarding note and Ext.P5 chemical analysis report are marked. PW5 is an independent witness examined to prove the scene mahazar prepared by PW6, who is the investigating officer in the present case. But PW5 though admitted his signature, had stated that he was not present when the scene mahazar was prepared. When PW6 is examined, he had deposed that he had undertaken the investigation in the present case and he had prepared a scene mahazar which he identified as Ext.P6 and he had also stated that on conclusion of the Crl.A.No.1928 of 2003 :-6-: investigation, he laid the charge. It is, on the basis of the above evidence and materials, the trial court found that the accused is guilty of the offence under Section 55(g) of the Abkari Act. 5. The learned counsel for the appellant vehemently submitted that though the appellant is a lady, she was unlawfully arrested by PW1, who is not the same gender of the accused. It is also contended that in the present case, two occurrence reports are prepared and filed for which there is no explanation from the prosecution. It is further contended that there is delay in producing the samples before the court and the said delay is not explained which is fatal, particularly in the absence of a property list. It is also contended that there is no evidence as to who produced the MOs. and samples before the court. According to the learned counsel, due to the above vital defect in the prosecution, the trial court is not justified in convicting the appellant. 6. Per contra, the learned Public Prosecutor submitted that Crl.A.No.1928 of 2003 **==> picture [21 x 9] intentionally omitted <==** the evidence of PW1 shows the detection of the crime, when the accused was involved in the preparation of wash. According to the learned Public Prosecutor, as the evidence of PW1 is free of doubt or contradiction, the same can be accepted as rightly done by the trial court even if the independent witnesses turned hostile. According to the learned Public Prosecutor, the findings of the court below are based upon the evidence and materials on record and therefore, no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record. 8. In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is whether the conviction recorded by the trial court against the appellant is sustainable. At the outset, it is to be noted that the appellant is a lady, who is ordered to undergo rigorous imprisonment for a period of Crl.A.No.1928 of 2003 :-8-: 3½ years on the allegation that she was found in possession of wash. To prove the involvement of the accused in the alleged offence, the only evidence available is that of the deposition of PW1. Suffice to say, no documentary or independent evidence is produced by the prosecution to corroborate the evidence of PW1, to substantiate the allegation against the accused which, according to me, in the given facts and circumstances of the case, is highly fatal to the prosecution. According to PW1, when he was on patrol duty on 27.9.1998 at about 11 a.m., he had got information about the illicit distillation of wash near the house of the accused and he proceeded to the place. In the chief examination, what he had stated, is as follows:- “..........അന� ര�വ�ല� 11 മണ�ക� മട�കര�യ�ല� മമതട� ദ�ശത� പ�ത�യ�ലട വ�ട�ല� �ര�സരത� വച� വ!�ജമ�യ� വ�ഷ മ$$�ര!� ല%യ'ന വ�വര� $�ട� . സ�ക�$ള സഹ�ത� സലലതത�. പ�ത�യ�ലട മ�ന���ണ�യ�ര�ന 3 ത$ര ട�ന�$ള�ല ഉദ3ശ� 54 ��റര വ�ഷ $ണ� ��ട�ച'....................” Crl.A.No.1928 of 2003 :-9-: But, PW1 has no case that the so-called metal tins were kept in a shed and he has also no case that the accused was found engaged in the preparation of the wash. So, the substantial evidence of PW1 is no way helpful for the prosecution to prove that the accused was found in possession of the wash as alleged by the prosecution. In this juncture, it is relevant to note that Ext.P1 is a contemporary document claimed to have generated by the prosecution while detecting the alleged offence. The title of Ext.P1 shows that the mahazar was prepared in the thatched shed of the accused. But, in the mahazar, there is no reference to the house number and the other details of the property owned by the accused or her husband. There is also no description of property where the above mentioned thatched shed was situated. It is relevant to note that PW6 subsequently undertook the investigation and prepared a scene mahazar as Ext.P6, but the same was prepared after one year and three months from the date of occurrence in the present case. When PW6 prepared the scene mahazar, there was no Crl.A.No.1928 of 2003 :-10-: thatched shed, but he allegedly found only the remnants of the same. In Ext.P6 scene mahazar also, the description of the property, where the remnants of the thatched shed found by PW6, is not stated. No revenue or Panchayat records are collected and produced by the prosecution to show that the property, where the alleged thatched shed was situated from where the wash was seized, exclusively belongs to the accused. In Ext.P1 mahazar, it is seen recorded as “സ�ത� ലവച� ഒര� സപത� വ!�ജമ�യ� വ�ഷ മ$$�ര!� ല%യ< വര�നത�യ� ല�ലടന� $�ട�യ അറ�വ അന�സര�ച�” and it is further stated as “എത�യദA�ള ഒര� സപത� ഒര� ത$ര ട�ന�ല മ$ ഇട� ഇളക� ല$�ണ�ര�ക�നത�യ� $�ണലAട' .” But the above version contained in Ext.P1 is not deposed by PW1 during his chief examination. The above overt act of the accused, which is seen recorded in Ext.P1, is conspicuously absent in the deposition of PW1. There is also no whisper in the deposition of PW1 to the effect that the Crl.A.No.1928 of 2003 **==> picture [27 x 9] intentionally omitted <==** metal tins were found in a thatched shed. Hence, the evidence of PW1 cannot be believed due to serious omissions and discrepancies occurred therein. As I indicated earlier, there is also no documentary evidence to show that the property at which PW1 claimed to have seen the accused as well as the metal tins, exclusively belonged to the accused. It is also relevant to note that PW1 has claimed that there were lot of houses situated adjacent to the alleged place of occurrence, but no local witness is cited and examined by the prosecution and PW2, though turned hostile, was residing about 3 kms. away from the place of occurrence. So the available evidence are insufficient to connect the accused, who is a lady, for the offence alleged against her. Therefore, according to me, it is quite unsafe to convict the appellant simply on the basis of the unbelievable evidence of PW1, whose evidence is not corroborated by any independent evidence. 9. It is relevant to note that in this case, no property list is prepared and produced by the prosecution. As such, there is no Crl.A.No.1928 of 2003 :-12-: evidence as to on which date the samples were produced before the court. A Division Bench of this Court in the decision reported in **Ravi** v. **State of Kerala** [2011(3) KLT 353] has held as follows: “............ _There should be explanation for the delay when there is delayed production of the property. ............. ................_ ” In the present case, as the prosecution has miserably failed to produce and file a property list, we do not know, on which date, the samples as well as the material objects were produced before the court. No official witness examined in this case has claimed that any of them have produced the samples or the material objects before the court. So, even if the claim of PW1 is that he seized the material objects and had drawn the sample, there is no evidence that the samples and material objects reached in the court without delay and even if there is delay, the samples were kept intact without any room for tampering the same. None of the official witnesses made any attempt to explain the delay or gave any reason for not producing the samples and the Crl.A.No.1928 of 2003 **==> picture [27 x 9] intentionally omitted <==** materials objects immediately after the seizure of the same. In the ## decision in **Narayani** v. **Excise Inspector** [2002(3) KLT 725], this Court had found as follows:- “ ................... _no evidence is forthcoming as to who was in possession of the contraband till it was produced in court and it is evident from the testimony of PW4, that he was not in custody of the contraband .................. .................._ ” But, in the present case, none of the official witnesses have claimed that they were in possession of the sample till the same is produced before the court. The facts and circumstances involved in the case and the evidence on record are not helpful for the prosecution to withstand the test laid down by this Court in the above decisions. 10. In the light of the above discussion and in view of the evidence and materials referred to above, I am unable to support the findings of the court below and to concur the conviction recorded against the appellant for the offence punishable under Section 55(g) of the Abkari Act. Therefore, due to the absence of proper and sufficient Crl.A.No.1928 of 2003 **==> picture [27 x 9] intentionally omitted <==** evidence, it cannot be said that the prosecution has succeeded in proving its allegation against the appellant. Accordingly, the conviction recorded by the trial court against the appellant is set aside. In the result, this appeal is allowed setting aside the judgment dated 14.11.2003 in S.C.No.52 of 2001 of the court of Additional Sessions Judge (ADHOC-I), Kasaragod and the appellant is acquitted of all the charges levelled against her and the bail bond, if any, executed by the appellant shall stand cancelled and she is set at liberty. **V.K.MOHANAN, Judge** MBS/ ## Crl.A.No.1928 of 2003 :-15-: