Madhusoodhanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940** **CRL.A.No. 316 of 2004** **AGAINST THE ORDER/JUDGMENT IN SC 1011/2000 of ADDITIONAL SESSIONS COURT, FAST TRACK-I, TRIVANDRUM DATED 04-02-2004** **AGAINST THE ORDER/JUDGMENT IN CP 34/2000 of JUDICIAL MAGISTRATE OF FIRST CLASS -II,TRIVANDRUM** ## **APPELLANT/ACCUSED NO.1:** **MADHUSOODHANAN, S/O. SREEDHARAN NAIR, DEEPA PRABHA HOUSE, NEAR SREE RAGAM THEATRE,, PAPPANAMCODE WARD, NEMOM VILLAGE,, THIRUVANANTHAPURAM.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA.** **OTHER PRESENT:** **SRI SANTHOSH PETER-PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **CRL.A.No. 316 of 2004** **-2-** ## **J U D G M E N T** **The appellant herein challenges the conviction and sentence against him under Section 55(a) of the Kerala Abkari Act (for short “the Act”) in S.C. No.1011 of 2000 of the Court of Session, Thiruvananthapuram. He is the first accused therein. He and the second accused faced trial before the learned Additional Sessions Judge (Adhoc-I), Thiruvananthapuram, on the allegation that at about 4.00 p.m. on 14.01.1999, they were found transporting 35 litres of arrack contained in a plastic can on the scooter No. KRT 7023. The first accused was the rider of the scooter, and the second accused was the pillion rider. The offence was detected by the Sub Inspector of Police, Thumba, during his usual patrol duty. He intercepted the vehicle, and interrogated the two accused. When he examined the plastic can found on the scooter, he found 35 litres of arrack therein.** **CRL.A.No. 316 of 2004** **-3-** **On seeing the police party, the second accused ran off and escaped, but the first accused was arrested on the spot, and the contraband article was seized as per a mahazar. On the basis of the arrest and seizure made by him, the Sub Inspector registered the crime, he himself conducted investigation, and also submitted final report in court.** **2. The two accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them under Section 55(a) of the Act. Instead of framing charge under Section 8(2) of the Act, charge was framed under Section 55(a) of the Act. The prosecution examined four witnesses, and proved Exts.P1 to P5 documents in the trial court. The MO1 property was also identified during trial.** **3. The two accused denied the** **incriminating circumstances when examined under Section 313 Cr.P.C., and projected a defence of** **CRL.A.No. 316 of 2004** **-4-** **total denial. They did not adduce any evidence in defence.** **4. On an appreciation of the evidence, the trial court found the second accused not guilty, and accordingly he was acquitted, but the first accused was found guilty. On conviction, he was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction dated 04.02.2004, the first accused has come up in appeal.** **5. On hearing both sides, and on a perusal of the materials, I find some infirmities in this case vitiating the prosecution.** **6. Of the four witnesses examined the trial court, PW3 is the Sub Inspector who detected the offence, and PW2 is the Assistant Sub Inspector who assisted PW3. PW1, examined as an independent witness, turned hostile. Everything in this case** ## **CRL.A.No. 316 of 2004** **-5-** **was done by PW3. He deteceted the offence, registered the crime, conducted investigation, and submitted final report in court. Of course there was nothing legally wrong as on the date of detection, though the present position is otherwise, that the one man show made by the detecting officer will vitiate the prosecution. The present position is covered by the decision of the Honourable Supreme Court in** _**Mohan Lal v. State of Punjab**_ **(AIR 2018 Supreme Court 3853), and later the Supreme Court has clarified that the proposition would not apply to pending trials and appeals. So the question is whether any prejudice was caused to the accused by the one man show made by PW3.** **7. This Court has settled the legal position that the copy of the forwarding note produced in court must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. In this case, it is not known who** **CRL.A.No. 316 of 2004** **-6-** **collected the sample, or how it was collected, or where it was collected. PW3 does not say that he had collected any sample. The FIR or the detection mahazar prepared by him does not show that he had collected any sample from the total quantity of liquor allegedly seized from the possession of the accused. The forwarding note does not contain the specimen of any personal seal. The Investigating Officer is required to affix his personal seal in the forwarding note, and this is to identify the sample produced in court. In the absence of the specimen of any personal seal of the detecting officer, the sample produced in court cannot be identified as the sample taken from the possession of the accused. Of course, even otherwise things are doubtful because there is nothing to show that PW3 had taken any sample. A sample was produced before court, and sent for analysis. When there is nothing to show that any sample was collected by** ## **CRL.A.No. 316 of 2004** **-7-** **PW3 anywhere, or on the spot, from the liquid allegedly seized from the possession of the accused, the Ext.P3 report of analysis will not bind the accused. There is nothing to show that the liquid contained in the plastic can produced in court, or the liquid contained in the sample produced in court was identified as arrack as the prosecution would allege. On this ground itself, the accused is entitled for acquittal.** **8. As already stated, everything was done by PW3 in this case. When cross examined on this material aspect, he stated that nobody had verified his investigation. He has no explanation why he himself conducted investigation. The accused has the right to know how the sample was collected, or where it was collected, or who collected it. When there is no evidence on these aspects, he cannot be found guilty or convicted on the basis of Ext.P3 report of analysis.** **-8-** ## **CRL.A.No. 316 of 2004** **In the result, the appeal is allowed. The appellant is found not guilty of the offence under 55(a) of the Act, and he is acquitted of the offence in appeal under Section 386(b)(i) Cr.P.C.. Accordingly, the conviction and sentence against the appellant in S.C. No. 1011 of 2000 of the court below will stand set aside, and he will stand released from prosecution.** **Sd/-** **P.UBAID** **JUDGE** Ds 21.03.2019