Manu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 19TH DAY OF FEBRUARY 2013/30TH MAGHA 1934** **CRL.A.No. 1373 of 2004 (C) --------------------------** **AGAINST THE JUDGMENT IN SC.1210/2002 of III ADDL.D.C., KOLLAM DATED 12-08-2004** **APPELLANT(S)/ACCUSED:--------------------** **MANU, S/O. ANANDAN, PADINJATTEKARA VEEDU, AKKOLILCHERRI, MAYYANADU VILLAGE, KOLLAM.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** **RESPONDENT(S)/COMPLAINANT:-** **-------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.N.SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.K.MOHANAN, J.** = = = = = = = = = = = = = Crl.Appeal No.1373 of 2004. = = = = = = = = = = = = = Dated this the 19[th] February, 2013. ## **J U D G M E N T** The sole accused in SC.No.1210/2002 of the Court of the Sessions, Kollam is the appellant, who stand convicted and sentenced for offences under Section 8(1) and (2) of the Abkari Act. 2. The prosecution case is that at about 6.30 pm. on 31.7.1999, the Excise party of Kollam Circle headed by PW1 found the accused in possession of 26 covers of arrack, each containing 150 ml. for the purpose of sale, in front of the house of Alappuzha David on Ammachan mukku – Puliyathu mukku road in Akkolilcherri of Mayyanadu village. On the basis of the above allegation, Crime No.51/1999 was registered in the Chathannoor Excise Range for the said offences. On completing the investigation, a report was filed in the Judicial First Class Magistrate Court-II, Kollam **Crl.Appeal No.1373/2004.** 2 wherein CP.No.78/2001 was instituted and subsequently by order dated 11.7.2001, the learned Magistrate committed the case to the Sessions Court where SC.No.1210/2002 is instituted and thereafter made over to the trial court for disposal. When the accused appeared, a formal charge was framed for the offences under Section 8(1) and (2) of the Abkari Act, which when read over and explained to him he pleaded not guilty. Subsequently the prosecution adduced its evidence by examining Pws.1 to 6 and producing Exts.P1 to P3 documents. Mos.1 to 4 are also identified and marked as material object. No evidence either oral or documentary produced on the side of the defence. The trial court after considering the evidence on records found that the prosecution has succeeded in proving that the accused has possessed arrack in violation of Section 8(1) of the Abkari Act. Accordingly, he is convicted for the offences under Section 8(1) and (2) of the Abkari Act. On such conviction he is sentenced to undergo Rigorous Imprisonment for **Crl.Appeal No.1373/2004.** 3 three years and to pay fine of Rs.1,00,000/- and in default to undergo Rigorous Imprisonment for another ten months. Set off is allowed. It is the above finding, the order of conviction and sentence that are challenged in this appeal. 3. I have heard Sri.P.M.Rafiq, learned counsel for the appellant and the learned Public Prosecutor. 4. In order to prove the prosecution allegation as I indicated earlier, Pws.1 to 6 were examined and perused Exts.P1 to P3 documents. Among the prosecution witnesses PW1 is the then Excise Inspector attached to the office of the Excise Circle Inspection, Kollam, who detected the crime. PW2, then working as the Preventive Officer, accompanied the PW1 at the time of raid and detection of the crime. When Pws.1 and 2 were examined they have deposed in terms of the prosecution allegation and according to them, while they were conducting raid and reached in front of the house of Alappuzha David on Ammachan mukku – Puliyathu mukku road, which is on the **Crl.Appeal No.1373/2004.** 4 north of Alapura temple, they found the accused coming in their opposite direction. According to these witnesses, on seeing them the accused turned back and ran away and they chased him but could not arrest the accused. Thereafter, according to Pws.1 and 2, they seized the contraband article in the presence of the independent witness and on enquiry they got the name and address of the accused. When Pw1 was examined, Ext.P1 seizure mahazar on which the contraband article was seized is, proved. 5. Pw3 is the then Excise Inspector of Chathannoor Range before whom Pws.1 and 2 allegedly produced the contraband article and Ext.P1 mahazar, who in turn prepared Ext.P2 crime and occurrence report. When Pw.3 was examined he had deposed that he had produced the material objects and the connected documents before the court on the same day. On the same were returned and subsequently produced before the court. Pw4 is the **Crl.Appeal No.1373/2004.** 5 investigating officer who undertook the investigation and laid the charge and proved Ext.P3 chemical analysis report. Pws.5 and 6 are other two independent witnesses who were attestors to Ext.P1 seizure mahazar. But they turned hostile. These are the evidence on materials referred and relied on by the learned Judge of the trial court in support of his findings and to convict the appellant. 6. The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove that the sample mentioned in Ext.P3 chemical analysis report represents the contraband article allegedly seized by Pws.1 and 2 as per Ext.P1 mahazar. In support of his contention the learned counsel has pointed out that as per the deposition of Pws.1 and 2, after the alleged seizure the vehicle was broken down and that they could reach the office only on next day morning by 11.00 am. It is the further contention of the counsel that as per the evidence particularly in the light of the evidence of Pw3 and as per **Crl.Appeal No.1373/2004.** 6 the endorsement contained in Ext.P2, the MOs seized were produced before the court only at 12.00 pm. on 1.6.1999 and regarding the safe custody of the contraband article, there is no independent and reliable evidence. So, according to the learned counsel, in view of the decision reported in **Ravi v. State of Kerala** (2011(3) KLT 353) the prosecution has miserably failed to show that the samples allegedly seized as per Ext.P1 reached in the hands of the chemical analysis in a fool proof manner. 7. On the other hand, the learned Public Prosecutor submitted that the contemporary documents Exts.P1 to P3 corroborates the evidence of Pws.1 to 4, in support the case of the prosecution. Thus, according to the learned Public Prosecutor, the findings of the court below is fully correct and legal and no interference is warranted. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant and also by the learned Public Prosecutor and I have perused the **Crl.Appeal No.1373/2004.** 7 judgment and also the evidence and material on records. 9. In the light of the rival contentions advanced, the question to be considered is whether the trial court is justified in its findings and convicting the appellant and whether the prosecution has succeeded in proving its case beyond reasonable doubt. In the light of the contention advanced by the learned counsel for the appellant, particularly in view of the decision reported in **Ravi v. State of Kerala** (2011(3) KLT 353), I am of the view that this Court need not go into other aspects of the prosecution case. In the above decision a Division Bench of this Court has held that “prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from accused which had reached the hands of Chemical Examiner in a fool proof condition. At the outset it is to be noted that in the present case there is no independent witness to substantiate the case of the prosecution and to corroborate the evidence of the official witnesses. The **Crl.Appeal No.1373/2004.** 8 independent witnesses examined as Pws.5 and 6 turned hostile. Even as per the prosecution allegation when Pws.1 and 2 were on patrol duty and while they were reached at the place of occurrence they found accused holding a plastic bag. It is the further case of Pws.1 and 2 that on seeing the Excise Party, the accused turned around and ran away. According to Pws.1 and 2, it was at 6.15 pm. on 31.7.1999. Pws.1 and 2 have no claim that they have got prior acquaintance with the accused with his details. What Pws.1 and 2 stated are that they have got acquaintance only. In this judgment it is relevant to note that though Pws.1 and 2 claimed that they have ascertained the details of the accused from the independent witnesses, Pws.1 and 2 have no case that the independent witnesses were present when accused allegedly ran away from the spot. So, there is nothing to show that the independent witnesses were present when the accused ran away and they have witnessed the conduct of the accused ran away from the **Crl.Appeal No.1373/2004.** 9 spot, after abandoning the bag. It is also relevant to note that the accused has not arrested in this case and the prosecution has no case that his identity was established before laying the charge against him. So, there is no reliable and acceptable evidence to show that it was the accused who is the person, who ran away from the spot on seeing Pws.1 and 2 and he was holding the bag which contained the contraband article allegedly seized as per Ext.P1. 10. Secondly, it is relevant to note that Pw1 has categorically deposed before the court that after the seizure, allegedly effected in the present case, they continued the raid and during that time their vehicle has brked down and thus they came in the office only at about 11.00 am. on 1.8.1999. Pw2 has never deposed about the brake-down of the vehicle and it was according to Pw1, the vehicle got complaint. If that be so, the question is who was the custodian of the samples and the other contraband **Crl.Appeal No.1373/2004.** 10 article which is allegedly seized as per Ext.P1 seizure mahazar. Pw1 or Pw2 has never spoken to about it or they took the samples along with them. So, after the alleged seizure of the contraband article, absolutely there is no evidence as to who is the custodian of the contraband after the allegedly seizure of the article and still produced the same before the court by Pw3 at about 12.00 pm. on 1.8.1999. In this juncture it is relevant to note that Ext.P1 mahazar contained an endorsement to the effect that it was received at 1.00 pm. on 1.8.1999 and the authorship of such endorsement is not proved also. But it is relevant to note that in Ext.P2 crime and occurrence report, there is an endorsement to the effect that it is received on 3.8.1999 and it is purportedly initiated by the learned Magistrate. It is also relevant to note that, as per the seal impressed on Ext.P2 by the committal court, Ext.P2 crime and occurrence report was received in the court on 3.8.1999. There is no endorsement on Ext.P2, to the effect that the same was **Crl.Appeal No.1373/2004.** 11 received in the court on any day prior to 3.8.1999. Thus from the endorsement contained in Ext.P2 it can be safely concluded that the same was reached in the court only on 3.8.1999. Though the Ext.P2 received in the court only on 3.8.1999, no explanation is forthcoming from the prosecution side for the delay in reaching Ext.P2 and other records in the court in time. Though Pw3 has deposed that Ext.P2 and other relevant records were produced before the court on 1.8.1999 and returned the same for safe custody, the said claim of Pw3 is not supported by any evidence or materials on record. The prosecution has not examined the Thondi Clerk of the committal court to prove to the satisfaction of the court that the contraband article and samples were produced before the court in time and the same was returned to the prosecution agency for safe custody. So, the unexplained and undue delay coupled with the absence of reliable evidence as to who was the custodian of the samples and contraband article particularly **Crl.Appeal No.1373/2004.** 12 after its alleged seizure and during the time break-down of the vehicle and till the time it produce before the court and it cannot be said that Ext.P3 report is based upon the samples allegedly drawn as per Ext.P1 mahazar and that too when Ext.P1 mahazar is not sufficient to connect to the seizure of the contraband article from the possession of the accused. Thus, according to me, the prosecution has miserably failed to prove that the contraband article is seized from the physical possession of the appellant and Ext.P3 chemical analysis report represent the sample allegedly drawn from the contraband article claimed to be seized from the appellant, particularly in the light of the decision in **Ravi v. State of Kerala** (2011(3) KLT 353. Therefore, the accused is entitled to get the benefit of doubt, which according to me, the trial court failed to extent in favour of the accused. Therefore, extending the benefit or doubt in favour of the accused and he is entitled to get the same. Hence, the conviction recorded by the trial court 13 ## **Crl.Appeal No.1373/2004.** is set aside. In the result, the judgment dated 12.8.2004 in SC.No.1210/2002 of the Court of the Sessions Judge, Kollam is set aside and the appellant/accused is acquitted of all the charges levelled and the bail bond if executed by him stands cancelled and he is set at liberty. The appeal is allowed accordingly. **V.K.MOHANAN,** (Judge) **Kvs/-**