Madhavan v. The Excise Inspector, Balussery Excise Range

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 20TH DAY OF JANUARY 2014/30TH POUSHA, 1935 CRL.A.No. 1207 of 2003 (A) ------------------------[AGAINST THE JUDGMENT IN SC 448/1999 of ADDL.DISTRICT & SESSIONS COURT (ADHOC-I), KOZHIKODE DATED 01-07-2003] APPELLANT(S)/ACCUSED: --------------------MADHAVAN, S/O.ARUMA, KAKKUDUMBIL HOUSE, CHERUKAD DESOM. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S)/COMPLAINANT: -------------------------THE EXCISE INSPECTOR, BALUSSERY EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 1207 of 2003 ---------------------------------------Dated this the 20[th] day of January,2014** ## **J U D G M E N T** The sole accused in S.C.No.448 of 1999 of the court of Additional District and Sessions Judge, Fast Track (ADHOC-I), Kozhikode is the appellant and he preferred the above appeal aggrieved by the judgment dated 1.7.2003 in the above sessions case by which he is convicted and sentenced for the offence punishable under Section 55 (a) of the Abkari Act. 2. The prosecution case is that on 19.8.1997 at about 11.10 a.m., the accused was found in possession of a bottle containing 750 ml. of illicit arrack from a field in front of the house of one Kelappan at Cherukkad desom. The accused was arrested, the contraband found with him was seized and after completing the formalities, the accused and the seized articles were removed to the Excise Office and a case was registered under the relevant provisions of the Abkari Act. Thus, CRL.A.NO. 1207 Of 2003 **==> picture [25 x 9] intentionally omitted <==** according to the prosecution, the accused has committed the offence punishable under Section 55(a) of the Abkari Act and on the above allegation, Crime No.91 of 1997 was registered in the Balussery Excise Range. 3. On completing the investigation, a report was filed in the Judicial First Class Magistrate Court-I, Perambra. Thus, eventually S.C.No.448 of 1999 was instituted in the sessions court and finally transferred to the present trial court for trial. Before that, when the accused appeared in the court of the Assistant Sessions Judge, Koyilandi to which the case was initially made over, a formal charge was framed against him after hearing the prosecution as well as the defence for the offence punishable under Section 55(a) of the Abkari Act and he denied the said charge when the same was read over and explained to the accused. It is thereafter, the case was transferred to the present trial court and on the appearance of the accused, the prosecution adduced its evidence by examining Pws.1 to 7 and ## CRL.A.NO. 1207 Of 2003 :-3 -: producing Exts.P1 to P7 documents. MO1 is identified as material object. According to the learned Judge, the prosecution has succeeded in proving beyond doubt the confiscation of MO1 containing illicit arrack from the possession of the accused and according to him, the accused is guilty of the charge levelled against him and thus, he is convicted for the offence under Section 55(a) of the Abkari Act. On such conviction, the accused is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1 lakh and in default, he is directed to undergo simple imprisonment for another term of nine months. 4. Heard Sri.Sunny Mathew, the learned counsel for the appellant and Smt.T.Y.Laliza, the learned Public Prosecutor for the State. 5. Out of the seven witnesses examined in this case, except PW5, all others are official witnesses and among which PWs.1 and 2 are the official witnesses, who involved in the detection of the crime. ## CRL.A.NO. 1207 Of 2003 **==> picture [25 x 9] intentionally omitted <==** When PWs.1 and 2 are examined, they have deposed that on 19.8.1997, at about 11.10 a.m. the accused was found in possession of a bottle containing 750 ml. of illicit arrack at the place mentioned in the seizure mahazar. So, the accused was arrested and the contraband article found with him was seized and thereafter, 180 ml. of arrack was taken from the bottle as sample. According to these witnesses, the entire proceedings are elaborately mentioned in the mahazar prepared at the spot. According to them, on completing the proceedings, the accused and the contraband article including the sample were produced before the then C.I.of Excise, who is examined as PW3. Thus, when PW1 is examined, he had identified Ext.P1 seizure mahazar and Ext.P2 arrest memo pertaining to the arrest of the accused. He also identified MO1 bottle. PW2 has also deposed in tune with the deposition of PW1 and he had also identified MO1 bottle. When PW3 is examined, he had deposed that the accused as well as the contraband article were produced before him by PW1 and CRL.A.NO. 1207 Of 2003 :-5 -: party and as directed by him, the crime and occurrence report is prepared and produced the accused and the contraband article before the court. PW4 is another Preventive Officer, who prepared the crime and occurrence report and a property list and thus, the accused as well as the contraband article and the material objects were produced before the court. PW4 has prepared a forwarding note for sending the samples for chemical analysis report. During the examination of PW4, he identified Ext.P3 crime and occurrence report, Ext.P4 property list and Ext.P5 forwarding note prepared by him. He has also identified Ext.P6 chemical analysis report. As I mentioned earlier, the sole independent witness examined in this case is PW5, who is an attestor to seizure mahazar prepared by PW1. But, during the examination of PW5, he turned hostile to the prosecution and thus, the prosecution has got marked Ext.P7 being the contradictory portion of his 161 statement. It was PW6, who undertook the further investigation and questioned the witnesses. Thus, when PW6 is CRL.A.NO. 1207 Of 2003 **==> picture [25 x 9] intentionally omitted <==** examined, he had deposed that PW5 had given Ext.P7 statement. The charge was laid by PW7, another Excise Inspector, who had completed the investigation. It is on the basis of the above evidence and materials, the trial court accepted the prosecution case and found the appellant guilty. 6. The learned counsel for the appellant vehemently submitted that the entire prosecution case is unbelievable and the trial court due to wrong appreciation of the evidence, convicted the appellant. According to the learned counsel, though the alleged seizure was effected on 19.8.1997, the material objects including the samples were produced before the court only on 21.8.1997 and there is no explanation for the delay and there is no evidence as to who was the custodian of the sample till the same is produced before the court. It is the further contention of the learned counsel that in view of the evidence of PW4, in the forwarding note, sample seal has to be affixed by the detecting officer, but no such seal is affixed and therefore, CRL.A.NO. 1207 Of 2003 :-7 -: according to the learned counsel, the prosecution has miserably failed to prove its case beyond reasonable doubt. 7. Per contra, the learned Public Prosecutor submitted that the seizure of the contraband article and the possession of the accused are proved through the evidence of Pws.1 and 2 and their evidence can be accepted without any hesitation as those evidence are free of doubt and contradiction. It is also the contention of the learned Public Prosecutor that as per the evidence of PW1, the sample was drawn from the bottle and the same was produced before the court from where the sample is sent for chemical analysis report and the chemical analysis report further shows that what seized from the possession of the accused is arrack. Thus, according to the learned Public Prosecutor, the trial court is correct in its finding and convicting the appellant and as such, no interference is warranted. 8. I have carefully considered the contentions advanced by the learned counsel for the appellant as well as the learned Public CRL.A.NO. 1207 Of 2003 :-8 -: Prosecutor and I have perused the evidence and materials on record. 9. In view of the divergent contentions and in view of the evidence and materials on record, the question that arose for consideration is whether the trial court is justified in its finding and convicting the appellant for the offence under Section 55(a) of the Abkari Act. 10. In the present case, as the sole independent witness examined turned hostile towards the prosecution, a duty is cast upon the court to scrutinise the evidence of official witnesses more cautiously and carefully. The core of the prosecution case is that when Pws.1 and 2 were conducting patrol duty, the accused was found in possession of the contraband article arrack and he is arrested. According to the prosecution, the accused was arrested on maintaining doubt about the appearance of the accused and particularly when he perplexed on seeing the Excise Party. In the present case, as per the prosecution allegation, the arrack was kept in a bottle having the CRL.A.NO. 1207 Of 2003 :-9 -: capacity of 750 ml. But about the exact place whereby the accused kept the bottle containing the liquor, the prosecution has no consistent and reliable case. In the evidence of PW1, he has not mentioned as to how the accused was found in possession of the contraband article. In the contemporary document viz., Ext.P1 prepared by PW1, what he has recorded is that “ഒര�ള ഞങള�� മ�മ�ല സ�മ�ര 10 വ�ര മ�മ�ല നടന� പ��ക�നത� കണ�. ട�യ�ന �ര�ഭ"മ# കണ� സ#ശയ�ച� ന�ന&ന� ട�യ�നന സമ'��ച� തതമയ# അത� വഴ� വന സ�ക�കള-നട മ�മ�നക ട�യ�നന തടഞ� ന�ര/� �ര�പശ�ധ�ചത�ല ട�യ�ന ഷര&�ന�ള�ല ഇടത� കയ�ല ��ട�ച ഒര� ക�പ� ഒള�പ�ചത�യ� കണ�. .....” ## What PW2 another official accompanied PW1 stated that ഭ�ത� മ�ധവന നടന� പ��വ�നത� കണ �. സ#ശയ# പത�ന� അട�ന//� അത�വഴ� പ��വ�ന സ�ക�കള-നട സന�ദ9/�ല മ�ധവനന തടഞ� ന�ര/� കയ�ല ഉണ�യ�ര�ന ക�പ� വ�ങ� �ര�പശ�ധ��ച-. As per the first document prepared by the prosecution viz., Ext.P1 mahazar, what recorded is that MO1 bottle was kept inside the shirt CRL.A.NO. 1207 Of 2003 **==> picture [31 x 9] intentionally omitted <==** worn by the accused. PW2 has no case that on seeing the Excise party, the accused has got perplexed. PW1, the detecting officer has no case that the accused was holding MO1 bottle in his hands, visible to Pws.1 and 2. If the bottle was kept inside the shirt of the accused and when the accused has no apprehension or anxiety, there was no reason for PW1 or PW2 to entertain any doubt upon the accused so as to prevent him and to inspect his body. So, the evidence of Pws.1 and 2 and Ext.P1 document are contradicting each other and their evidence are not free of doubt and therefore, according to me, it is not safe to convict the appellant on the basis of the above inconsistent evidence of Pws.1 and 2 and the contradicting contemporary document Ext.P1. 11. As rightly pointed out by the learned counsel for the appellant, the evidence on record are not sufficient to prove the case against the appellant beyond reasonable doubt. A Division Bench of this Court in the decision reported in **Ravi** v. **State of Kerala** [2011(3) KLT 353] has held that the prosecution has a duty to prove that it was CRL.A.NO. 1207 Of 2003 **==> picture [30 x 9] intentionally omitted <==** the sample taken from contraband liquor seized from the accused which had reached in the hands of Chemical examiner in a fool proof condition. But, in the present case, it cannot be said that the prosecution has succeeded in withstanding the above test laid by the Division Bench in the said decision. In Ext.P1 mahazar, no specimen seal impression is provided and also no description about the seal affixed on the sample is given. In the evidence of PW1, particularly during his cross-examination, he had deposed that “സ'ല�# മറ-# സ�ധ�രണ നക�ണ� പ��വ�റ�ണ�. NB എന സ'ല�ണ �ത�ചത. ആ സ'ല�ണ sample bo ttle -ല�# ക�പ�യ�ല�# വചത.” Further, he had added that “FN-ല ഞ�ന സ'ല നവച�&�ലP.” PW4, who prepared Ext.P5 forwarding note, has categorically stated before the court that in the space provided to affix the sample seal, the detecting officer has to affix the sample seal, but he has not done so. On a perusal of Ext.P5,besides the above evidence of Pws.1 and 4, it CRL.A.NO. 1207 Of 2003 **==> picture [31 x 9] intentionally omitted <==** can be seen that at the place provided for affixing the sample seal, what affixed is the court seal. As per the version of PW1, the seal which he used to take at the time of raid is 'NB' seal and according to him, he affixed the seal on the sample bottle. If the evidence of PW1 is taken as true and correct, the seal affixed on the sample must be the 'NB' seal. In the present case, as per Ext.P5 forwarding note, the sample seal provided is the court seal and the court seal is in no way said to have affixed on the sample. If that be so, the report of the Chemical Examiner that the seal on the bottle was intact and found tallied with the sample seal provided is absolutely incorrect and false. Therefore, it can be said that there is no guarantee that the sample which was subjected to chemical analysis by the Chemical Examiner is the sample so drawn by PW1 from the MO1 bottle which was allegedly seized by PW1 from the possession of the accused. So, there is no link evidence to believe the prosecution story. CRL.A.NO. 1207 Of 2003 **==> picture [31 x 9] intentionally omitted <==** 12. It is also relevant to note that though the contraband article was allegedly seized at 11.10 a.m. on 19.8.1997, the same was produced before the court including the sample only on 21.8.1997 and thus, there is a delay, but no explanation is offered by any of the official witnesses for such delay. No evidence is also adduced by the prosecution as to who was the custodian of the sample till the same is produced before the court on 21.8.1997 and what are the measures taken to preserve the samples intact and to rule out any possibility of tampering the same. In the absence of any positive evidence towards the steps taken by PW1 in keeping the sample intact, the above unexplained delay and paucity of evidence regarding the safety measures taken to preserve the sample, the possibility of tampering of the samples cannot be ruled out. In the light of the above discussion and in view of the evidence and materials referred to above, I am of the view that the prosecution has miserably failed in proving its case beyond reasonable CRL.A.NO. 1207 Of 2003 **==> picture [31 x 9] intentionally omitted <==** doubt against the appellant and hence, I am unable to concur the finding and approve the conviction recorded by the trial court. Accordingly, the conviction recorded by the trial court against the appellant for the offence under Section 55(a) is set aside. In the result, this appeal is allowed setting aside the judgment dated 1.7.2003 in S.C.No.448 of 1999 of the court of the Additional District and Sessions Judge, Fast Track (ADHOC-I), Kozhikode and the appellant is acquitted of all the charges levelled against him and the bail bond, if any, executed against him shall stand cancelled and he is set at liberty. **V.K.MOHANAN** , Judge MBS/ ## CRL.A.NO. 1207 Of 2003 :-15 -: CRL.A.NO. 1207 Of 2003 :-16 -: **V.K.MOHANAN, J.** CRL.A.No. 226 OF 2003 CRL.A.NO. 1207 Of 2003 :-17 -: J U D G M E N T Dated:29.10.2013