Manoharan and Santosh v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K.P. Jyothindranath
Judgment Date: 2018-02-21
Court Decision / Holding: The appeal is allowed; the conviction and sentence imposed by the trial court are set aside; bail bonds stand cancelled.
Final Disposition: Appeal allowed; conviction and sentence set aside; bail bonds cancelled.

Parties to the Case

Appellants / Petitioners

Manoharan, S/O. Ramakrishnan
Santhosh, S/O. Gopal

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• S.M. Althaf

Counsels for Respondents

• K.B. Udayakumar

Case Synopsis & Summary

This criminal appeal—CRL.A. No. 1872 of 2005—challenges the conviction and sentence recorded in SC 189/2000 of the Addl. Dist. & Sessions Judge (Adhoc) Kollam. The appellants, Manoharan and Santosh, were convicted under Sections 55(a) and 55(b) of the Abkari Act and sentenced to two years’ rigorous imprisonment and a fine of Rs. 1,00,000 each; a third accused was acquitted. The prosecution case rests on information received on 7 July 1998 that three persons were distilling arrack at Manoharan’s dwelling; police allegedly found a lean-to building with distilling activities, arresting two of the occupants and seizing articles. The trial court relied on seizure memos and witness testimony (including PW2 and PW3) to convict. On appeal, defence argued serious irregularities: no memorandum of search or search list; no scene mahazar; lack of proof that the lean-to belonged to Manoharan; absence of independent witnesses to the seizure; PW2 and PW3 were police officers, whose testimony is suspect for seizure under Section 36; no forwarding note linking the arrack to the analysis report; non-compliance with Section 38 requiring information to be shared with Abkari officers. The court notes a reference to Krishnan H. v. State (2015(1) KHC 822) and emphasizes non-compliance with the procedural safeguards. In light of these defects, the appellants are entitled to the benefit of doubt. The appeal is allowed and the conviction and sentence are set aside; bail bonds stand cancelled.

Provisions of Law Cited

Abkari Act, Section 55(a)Abkari Act, Section 55(b)Abkari Act, Section 38Abkari Act, Section 36Abkari Act, Section 31Abkari Act, Section 34Abkari Act, Section 40Abkari Act, Section 41

Legal Doctrines & Maxims

Benefit of doubt
Safeguard against false implication (in Abkari Act investigations)

Submissions & Arguments

Contentions of Appellants / Petitioners

The defence contends grave irregularities in the search and seizure process: no memorandum of search or search list; absence of scene mahazar; difficulty in linking the distilling activity to the named owner; lack of independent witnesses to the seizure; PW2 and PW3 are police officers, hence not acceptable witnesses for seizure under Section 36; non-compliance with Section 38 requiring information to be provided to Abkari Officers; no forwarding note linking the arrack to the analysis report. These infirmities undermine the prosecution case and invoke the benefit of doubt, warranting acquittal or reversal of conviction.

Contentions of Respondents

Prosecution maintains that reliable information led to search and seizure at the residence; distilling paraphernalia were seized; the evidence supported conviction under Section 55(b); however, the court notes procedural deficiencies cited by the appellants but the respondents do not offer a specific counter-argument countering the defense’s procedural issues beyond reliance on the trial proceedings.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Krishnan H. v. State	2015(1) KHC 822	Mentioned Only	Cited by the court as to the relevance of certain evidentiary principles but not applied to sustain the conviction; the decision is noted without adoption or distinguishing it for the present case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939** **CRL.A.No. 1872 of 2005** **AGAINST THE JUDGMENT IN SC 189/2000 of ADDL. DISTRICT COURT (ADHOC), KOLLAM DATED 05-10-2005 CP 204/1998 of J.M.F.C.-I, KOLLAM** **APPELLANTS/ACCUSED 1 AND 2** **1 MANOHARAN, S/O.RAMAKRISHNAN, PUTHEN KANTETHIL THENGUMTHARA COLONY,, THAZHAVA MURI, EAST KALLADA VILLAGE.** **2 SANTHOSH, S/O.GOPALAN, NAVUKORA CHARUVIL VEEDU,, NEAR SIVANKSHETHRAM, EAST KALLADA VILLAGE.** **BY ADV.SRI.S.M.ALTHAF** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.Appeal No.1872 OF 2005** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of February, 2018 ## **JUDGMENT** This appeal is preferred against the judgment of conviction and sentence made in S.C.No.189/2000 on the files of the Court of Addl. Dist. and Sessions Judge ( Adhoc) Court I, Kollam. The first appellant was convicted for an offence under Sections 55(a) and (b) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-. The second appellant was convicted for an offence under Sections 55 (b) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-. 2. The prosecution case is that on 7.7.1998 at about 8.30 hours, PW1, the S.I. of Police got a reliable information that three persons are distilling arrack from the house of one Manoharan residing in Thazham muriyil puthen kandathil Thengumthara Crl.Appeal No.1872/2005 2 colony in Kizhakkekallada village. He immediately proceeded with a police party and found that three persons involved in distilling from a lean-to a building. One person ran away and two others were arrested from the spot. The distilling articles were also seized. The prosecution altogether examined three witnesses and Exts.P1 to P4 were marked. MO1 to MO3 series were also identified. After appreciating the evidence, accused Nos. 1 and 2 were convicted and sentenced as stated above. Accused No.3 was acquitted by the trial court. The challenge is against the said conviction and sentence. 3. When the appeal came up for hearing, the learned counsel raised two points for consideration : 4. It is submitted that here is a case where the prosecution got a case that clear information was received that distilling was going on in a house. But memorandum of search and search list were not prepared. The claim of the prosecution is that it was outside the house. But no scene mahazar was prepared. Crl.Appeal No.1872/2005 3 5. It is submitted that even though the prosecution got a case that there was seizure as claimed by PW3, no independent witnesses supported the said claim. Surely, in the seizure mahazar there are two eye witnesses. Only one witness was seen examined who turned hostile. The second eye witness is a police officer who cannot be a witness to a seizure as per Section 36 of the Abkari Act. 6. I heard the learned Public Prosecutor. 7. In this case the allegation is that appellants were found distilling arrack and was in possession of arrack. Admittedly no forwarding note marked to link the arrack with the analysis report . The decision of this court in **Krishnan H. v. State ( 2015(1) KHC 822)** is relevant to be noted in this regard. 8. Now, regarding the conviction under Section 55(b) of the Abkari Act. It is an admitted case of the prosecution that on a reliable information that distilling was going on in the house of one Manoharan, they proceeded for search and seizure. Surely, no Crl.Appeal No.1872/2005 4 memorandum of search was marked. Even though, the prosecution got a case that it is a leanto wherein the distilling was going on, no scene mahazar was seen prepared or marked. The case of the prosecution is that leanto was to a building belonging to one Manoharan. There is nothing to show that Manoharan is the person actually who owned the building. If there is no building as claimed, the whole case will fail. It is to be remembered that Police is prosecuting a very serious offence wherein the sentence is very harsh. Police not even bothered to prepare a scene mahazar during the investigation or even if prepared it was not seen marked. It is also relevant to note that the Sub Inspector is only an abkari officer as per SRO 321/1996. They are abkari officers vested with powers under Sections 31 and 34 as well as under Sections 40 and 41 of the Abkari Act. But Section 38 of the Abkari Act states as follows : “38. Offences to be reported, etc. - Every officer of Government other than an Abkari Officer, shall be bound to give immediate Crl.Appeal No.1872/2005 5 information to an Abkari Officer, and every Abkari Officers shall be bound to give immediate information either to his immediate official superior or to an Abkari Inspector, of all breaches of any of the provisions of this Act, which may come to his knowledge; and all such officers shall be bound to take all reasonable measures in their to the power prevent commission of any such breaches which they may know or have reason to believe are about or likely to be committed” 9. It can be seen that when an offence is detected, they are bound to give immediate information either to his immediate official superior or to an abkari inspector. This is to safe guard false implication. It is to be remembered that in this case also the detection was by the sub inspector. Investigation is by the very same officer and charge was also filed by the very same officer. But he has not complied with the requirement either under Section 38 or even the second witness to the seizure mahazar was not even examined before the court. It is to be remembered that as per Crl.Appeal No.1872/2005 6 Section 36 of the Abkari Act, it is categorically stated that a witness to the search shall not be a person who is an abkari or police officer. When there is non-compliance of these aspects or evidence is not forth coming in this regard, it can be only held that explicit reliance cannot be made upon the evidence of PW2 and PW3 who are police officers. This court is coming to this conclusion only because there is non-compliance to the requirement under Section 38 and non-adducing of evidence of an independent witness who has shown as witness to the seizure and further, even though the positive case is that police proceeded to arrest/conduct search to a house belonging to Manoharan, no search memorandum prepared and there is no scene mahazar prepared and there is nothing to show that the said building was actually belonging to the first appellant Manoharan herein. Under such circumstances, the appellants are entitled for benefit of doubt. Hence the appeal is allowed setting aside the conviction and sentence imposed by the court below against the appellants. The Crl.Appeal No.1872/2005 7 bail bonds stand cancelled. **K.P.JYOTHINDRANATH JUDGE** sv.