Madanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2015/25TH BHADRA, 1937** **CRL.A.No. 2150 of 2005 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 376/2003 of ADDL.SESSIONS JUDGE(FAST TRACK-III), TRIVANDRUM, DATED 17-11-2005.** ## **APPELLANT(S)/ACCUSED:** **---------------------** **MADANAN, S/O.BHANUPANICKER, VADAKKEKOTTA COLONY, PUTHENKOTTA, CHALAI WARD, MANACAUD VILLAGE, THIRUVANANTHAPURAM TALUK.** **BY ADVS.SRI.J.DEVADANAM SRI.VINOD J.DEV SRI.PRAMOD J.DEV** ## **RESPONDENT(S)/COMPLAINANT:** **-------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **K. RAMAKRISHNAN, J.** ----------------------------------------------------------------------Crl. Appeal No.2150 of 2005 -------------------------------------------------------------------- Dated this the 16[th] day of September, 2015 ## **JUDGMENT** Accused in S.C.No.376/2003 on the file of the Additional Sessions Court (Fast Track-III), Thiruvananthapuram, is the appellant herein. The appellant was charge-sheeted by the Excise Inspector of Thiruvananthapuram Excise Range in Crime No.174/1997 of that Range under Section 8(1) & (2) of Abkari Act. 2. The case of the prosecution in nut shell was that, on 22.11.1997 at about 05.30 p.m., the accused was found to be in possession of 5 liters of arrack in a ten liter cannas found transitting the same through Killippalam East Fort Road near Aryasala Vinayaka Provision Store in violation of the provisions of Abkari Act and thereby he had committed the offence punishable under Section 8(1) & 8(2) of the Kerala Abkari Act. 3. After investigation, final report was filed 2 Crl. Appeal No.2150 of 2005 before the Judicial First Class Magistrate Court-II, Thiruvananthapuram, where it was taken on file as C.P.No.194/2000. Thereafter it was committed to the Sessions Court, Thiruvananthapuram by the learned magistrate under Section 209 of the Code of Criminal Procedure. After committal, the case was taken on file as S.C.No.376/2003 by the Sessions Court and later it was made over to the Additional Sessions Court (Ad hoc-III), Thiruvananthapuram, for disposal. 4. When the accused appeared before the court below, after hearing both sides, charge under Section 8(1) read with Section 8(2) of the Abkari Act was framed and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P5 and MO1 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he Crl. Appeal No.2150 of 2005 3 denied all the incriminating circumstances brought against him in the prosecution evidence and he had further stated that, he had not committed any offence and he has been falsely implicated in the case and no incriminating article was seized from his possession. Since the evidence in the case did not warrant an acquittal under Section 232 of the Code of Criminal Procedure, the Additional Sessions Judge directed the accused to enter on his defence. DW1 was examined on the side of the accused. After considering the evidence on record, the court below found the appellant guilty under Section 8(1) read with Section 8(2) of the Abkari Act and convicted him there under and sentenced him to undergo simple imprisonment for one year and also to pay a fine of 1,00,000/-, in default to undergo simple₹ imprisonment for three months. Set off was allowed for the period of detention already undergone by him. Aggrieved by the same, the present appeal has been preferred by the appellant/ accused before the court below. 4 Crl. Appeal No.2150 of 2005 5. Heard the counsel for the appellant Sri.Pramod J. Dev and Smt. Seena Ramakrishnan learned Public Prosecutor appearing for the State. 6. The counsel for the appellant submitted that, there is discrepancy regarding the place of occurrence in the evidence of PWs 1 and 2 as PW1 has stated that it was in front of Vinayaka Provision Store whereas other witness had stated that it was in front of Vinayaka Traders. Further independent witness to the seizure did not support the case of the prosecution. The other accused / independent witness was not examined but he was examined as DW1 and he had stated that he had not received any notice. It shows that they want to suppress the material evidence before the court. So it cannot be said that the prosecution has proved the seizure. He has also argued that it is a busy area and it cannot be said that a person will be standing with contraband article for sale openly in such place and that also falsifies the case of the prosecution regarding arrest 5 Crl. Appeal No.2150 of 2005 and seizure of article from the possession of the accused from that place as claimed by them. Further there is no spot sample taken and though PW1 had a case that sample was taken nothing was mentioned in Ext.P1 mahazar regarding the same and it must noted in the property list and no sample was also produced. No evidence was adduced as from where the sample was taken and who had sent the same etc., so as to link the contraband article with the accused for the purpose of convicting the accused. So he prayed for acquittal of the accused. 7. On the other hand, the Public Prosecutor submitted that the evidence of PWs 1 and 2 coupled with fact that the admission of PW3 regarding the signature in Ext.P1 and also the defence witness regarding the signature and also that these witnesses were persons having business or working near the place of occurrence and the articles were produced before court on the same day without any tampering, it can be safely concluded that the prosecution Crl. Appeal No.2150 of 2005 6 has proved the case beyond reasonable doubt and so the court below was perfectly justified in convicting the appellant for the offence alleged. 8. The case of the prosecution as emerged from the prosecution witnesses was that, on 22.11.1997, while PW1 who was working as Excise Inspector in Thiruvananthapuram Excise Range was doing patrol duty at about 05.30 p.m., along with PW2 and others in their jeep along Killippalam to Kizhakkekotta and when they reached near the Vinayaka provision store, the accused was seen standing there with MO1 cannas in his hand and on seeing the Excise party, he got perplexed and he tried to run away from the place. So they stopped him and on examination of the cannas, it was revealed that it contained five liters of arrack. So he arrested the accused and prepared Ext.P1 arrest memo and sealed the cannas and labeled the same and seized the same as per Ext.P2 seizure mahazar in the presence of PW3 and DW1. Thereafter he along with the 7 Crl. Appeal No.2150 of 2005 accused and the contraband article came to the Excise Office and registered Ext.P3 occurrence report as Crime No.174/1997 of Thiruvananthapuram Excise Range under Section 8(1) and 8(2) of Abkari Act against the accused. He prepared Ext.P4 property list and also prepared forwarding note and produced the articles before court on the same day. He had produced the accused also on the same day. Investigation in this case was conducted by PW4 who questioned the witnesses and recorded the statement and obtained Ext.P5 chemical analysis report and produced the same before court and he completed the investigation and submitted final report. 9. PW3 is an independent witness to the seizure. Though he admitted the signature in Ext.P1 mahazar, he denied having seen the seizure. He had admitted that he was working near the place of occurrence. But DW1 was examined on the side of the accused, 'not known' for the purpose for which he was examined, who 8 Crl. Appeal No.2150 of 2005 was an attestor to Ext.P2 mahazar. Though he admitted the signature and also admitted the fact that he was having a 'thattukada' in that place, he had denied having seen the seizure and arrest of the accused. He had admitted that he had acquaintance with the accused coming to the shop for taking tea. So it is clear from this that he is now trying to help the accused and that was the reason why he is not supporting the case of the prosecution. 10. Then the evidence is that of PWs 1 and 2 the official witnesses, PW1 had categorically stated that, while he was doing patrol duty with PW2 and others. When they reached in front of Vinayaka Provision Store, he saw the accused person standing there with MO1 cannas and on seeing the Excise Party, he tried to move away from the place and got perplexed. So they stopped him and on examination he was convinced that five liters of arrack in the cannas kept in his hand. So they sealed the cannas and affixed a label and seized the same in the presence of Crl. Appeal No.2150 of 2005 9 witnesses as per Ext.P2 mahazar. The evidence of PW2 was corroborated by the evidence of PW1 on this aspect. Merely because the independent witnesses to the seizure did not support the case of the prosecution alone is not sufficient to disbelieve the seizure as such. So court can rely on the evidence of excise officials if satisfied the genuineness and trustworthiness of the deposition of officials and convicted the accused on that basis. 11. It is true that there was some discrepancy regarding the name of the shop in front of which the incident occurred in the evidence of PW1 and 2. PW1 had stated that it was Vinayaka Provision Store whereas PW2 had stated that it was Vinayaka Traders. I do not think that it can be said to be material contradiction regarding the place of occurrence, which is a percept of the person as to how he understood the name of the institution and nothing more. So that alone is not sufficient to disbelieve the case of PWs 1 and 2 regarding the seizure of MO1 cannas with Crl. Appeal No.2150 of 2005 10 some liquid in it. 12. Merely because it was proved by the prosecution that MO1 cannas with some liquid was seized which was alleged to be arrack according to the prosecution alone is not sufficient to prove that they have proved beyond reasonable doubt and the accused was in possession of the arrack. They must prove the link between the contraband article seized with the accused and that the chemical analysis report relates to the representative sample taken from the contraband article alleged to have been seized from the possession of the accused. If it is not done, then it cannot be said that prosecution has proved the case beyond reasonable doubt. 13. It is also settled law that in cases where spot sample was not taken, the committal magistrates have to prepare proceedings regarding the manner in which sample was taken and that has to be proved by examining the concerned 'thondy clerk', as to how he had drawn the Crl. Appeal No.2150 of 2005 11 sample, how it was packed and it was sent for chemical examiners laboratory in full proof condition. Unless it is proved by the prosecution, it cannot be said that prosecution has proved the case against the accused beyond reasonable doubt and that benefit must be given to the accused. This was so held in the decision reported in **Sasidharan v. State of Kerala, (2007(1) KLT 720).** 14. In this case it is seen from Ext.P2 seizure mahazar that there was no spot sample taken. Neither PW1 nor PW4 had a case regarding the place from where the sample was taken, how it was taken and when it was sent to chemical analysis laboratory. Though it is mentioned in Ext.P2 mahazar that the cannas was sealed and labeled, there is nothing mentioned about the seal or label in Ext.P4 property list. The 'thondy clerk' who had taken the sample was not examined as well. Forwarding note or request for taking sample was also not produced and marked before the court. Even in the chemical analysis report, the date of Crl. Appeal No.2150 of 2005 12 sending of the covering letter was not mentioned. So under the circumstances, it is not safe to rely on Ext.P5 chemical analysis report as the report relating to the representative sample alleged to have been taken from the contraband article said to have been seized from the possession of the accused so as to convict him for the offence, possession of arrack. These aspects were not considered by the court below before coming to the conclusion that the prosecution has proved the case against the accused beyond reasonable doubt and consequential conviction entered by the court below against the appellant under Section 8(1) and (2) of the Abkari Act is unsustainable in law and the same is liable to be set aside. The appellant is entitled to get acquittal of the charge leveled against him giving him the benefit of doubt. 15. Since this court found that prosecution has not proved the case against the accused beyond reasonable doubt and he is entitled to get acquittal, the sentence Crl. Appeal No.2150 of 2005 13 imposed is also not proper and the same is also set aside. In the result, the appellant succeeds and the appeal is allowed. The order of conviction and sentence passed by the court below against the appellant for the offence under Section 8(1) and (2) of the Abkari Act are set aside and he is acquitted of the charge leveled against him giving him the benefit of doubt. The appellant is set at liberty. The bail bond executed by him will stand cancelled. The fine amount if any deposited by the appellant before the court below is directed to be returned to him, on making necessary application for that purpose. Office is directed to communicate this judgment to the concerned court, immediately. Sd/- ## **K. Ramakrishnan, Judge** // True Copy// P.A. to Judge ss