Mathachan v. State of Kerala

Crl.A.No.1332/2007 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943_ _CRL.A NO. 1332 OF 2007_ _AGAINST THE ORDER/JUDGMENT IN CP 2/2005 OF JUDICIAL MAGISTRATE_ _OF FIRST CLASS , (MUNSIFF MAGISTRATE COURT) ADIMALI SC 496/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA_ ## _APPELLANT/ACCUSED:_ _MATHACHAN, S/O PAPPACHAN, KARAYAMPURATHU VEEDU, PANICKANKUDY KARA, ANCHUMUKKU, KONNATHADI VILLAGE._ _BY ADVS. RAJIT RANJIT BABU_ ## _RESPONDENT/STATE & COMPLAINANT:_ _STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ _ADV. SUDHEER GOPALAKRISHANAN –PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ Crl.A.No.1332/2007 2 ## **J U D G M E N T** The appellant is the accused in S.C.No.496 of 2005 on the file of the Addl.Sessions Judge (Adhoc-II), Thodupuzha. Aforesaid case arises from Crime No.90 of 2001 of Excise Range, Udumbanchola. The offence alleged against the appellant is under Section 55(g) of the Abkari Act. 2. The prosecution case against the appellant is as follows: On 25.11.2001, the Excise Inspector received an information that, in the property of one Mathachan, S/o.Pappachan, Karayampurathu Veedu manufacturing of illicit liquor is taking place. They immediately went to the spot. Upon reaching there, the Excise party found the appellant engaged in manufacturing of illicit liquor and immediately upon seeing the Excise party, he ran away. On inspection of the property, they could find two cans containing 35 liters each wash. The Excise team had taken samples of wash in four bottles and sealed them. Thereafter, remaining wash was destroyed. Later, the articles were taken into Excise Range Crl.A.No.1332/2007 3 Office and Crime No.90 of 2001 was registered. On the basis of the same, investigation was conducted and final report was submitted before the Judicial First Class Magistrate Court, Adimaly, where it was taken into file as C.P.No.2 of 2005. After completing the legal formalities, the case was committed to Sessions Court, Thodupuzha, where the same was tried as S.C.No.496 of 2005. In support of the prosecution case, PWs 1 to 5 were examined, Ext.P1 to P6 were marked and Material Objects 1 to 4 were identified. 3. After completion of prosecution evidence, the appellant was examined under Section 313 Cr.P.C. and the incriminating materials were put to him, which he denied. No defence evidence was adduced. After examining the materials on record, the Sessions Court found the appellant guilty of the offence under Section 55(g) of the Abkari Act and accordingly, he was sentenced to undergo rigorous imprisonment for one year and a fine of Rs.1,00,000/- with default sentence of rigorous imprisonment for three months. This appeal is filed challenging the aforesaid order of conviction and sentence. Crl.A.No.1332/2007 4 4. Heard Adv.Lakshmi V.Pillai, learned counsel for the appellant and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. 5. The learned counsel for the appellant submits that, the prosecution could not establish the presence of the appellant in the place of occurrence and his conscious possession over the articles also not established. It is pointed out that, even going by the evidence of PW1, they have found the appellant 20 meters away and according to the learned counsel the information received did not contain name of the person who was carrying out the alleged illegal activity. Therefore, identification of the appellant itself is challenged by the learned counsel for the appellant. In addition to the above, it was also pointed out that, there was delay of four days in producing the articles before the Court. Even though the articles were seized on 25.11.2001, the same were produced on 29.11.2001 and no explanation is also offered by the investigating officer. It was also pointed out that, the materials available on record is not sufficient to hold that the sample Crl.A.No.1332/2007 5 which was subjected to chemical analysis was the same sample which was drawn from the liquor seized from the property allegedly in possession of the appellant. On these grounds the learned counsel for the appellant seeks for acquittal. 6. On the other hand, the learned Public Prosecutor would contend that, the materials available on record are sufficient to hold the appellant guilty. It is pointed out that, the possession of the appellant over the property, is established by the evidence of PW2, the Village Officer, who has issued Ext.P5 possession certificate in respect of the property. Apart from the above, the learned Public Prosecutor also brought my attention to the evidence of PW4 and PW5, who were independent witnesses examined to prove the mahazar prepared in this case. It was pointed out that even though they have turned hostile to the prosecution, they deposed about the possession of the property in favour of the appellant herein. In such circumstances, the learned Public Prosecutor prays for dismissal of the appeal. Crl.A.No.1332/2007 6 7. The question arises is, whether the materials produced by the prosecution is sufficient to hold the appellant guilty. Crucial evidence is that of PW1 who is detecting officer. According to him, on getting information as to the manufacturing of illicit liquor in the property belonging to the appellant, they conducted an investigation in the property on 25.11.2001 at 4.30 pm. When they reached, the appellant ran away from the property and upon examining the property the Material Objects which are mentioned above were found. PW3 is the Excise Inspector who conducted the investigation and submitted the final report. PW2 is the Village Officer who inspected the place of occurrence and issued Ext.P5 possession certificate showing that the property is in possession of the appellant herein. Ext.P6 is the chemical analysis report which indicates that the sample collected from the premises is wash. It is also mentioned in Ext.P6 that the seals on the packet were intact and found tallied with the sample seal provided. These are the materials on which the prosecution seeks to establish the offence against the appellant. Crl.A.No.1332/2007 7 8. The main contention put forward by the learned counsel for the petitioner is regarding the lack of evidence for establishing the possession of the appellant over the property in question. It is pointed out that the appellant was never arrested and the identity of the appellant was never proved before the court. It is true that, the only document available before this Court is Ext.P5, which is marked through PW2. PW2 has clearly stated that, on the basis of local inspection and after perusal of the records, the property was identified as non-patta land, but the same was in the possession of the appellant herein. The evidence of PW4 and PW5, who were neighbours, indicates that the property referred above is occupied by the appellant herein. It is true that, no survey numbers are seen mentioned in Ext.P5 possession certificate. However, on perusal of Ext.P5 certificate it can be seen, the same was identified on the basis of the property boundaries, which were identified on the basis of respective owners in possession of the aforesaid boundaries. On going through the evidence of PW4 the description is found tallied with the description of PW5. In such circumstances, I am Crl.A.No.1332/2007 8 of the view that the possession of the appellant over the property in question is established. 9. However, that by itself is not a ground to arrive at the conclusion that the appellant was in conscious possession over the articles in question. In order to establish the offence against the appellant, the prosecution has to establish that the articles were in physical or constructive possession of the appellant and in order to establish the same, it has to be shown that the appellant was having dominion over the articles in question. **[See Rajappan.V.P. v. State of Kerala (2015(5) KHC 895)]** . In this case, apart from the evidence of PW2 and PW5, there are no materials available on record. The appellant was not arrested from the spot and there are no specific evidence reflecting the identity of the persons who were present at the spot at the relevant time. In such circumstances, the appellant is entitled for the benefit of doubt. 10. Apart from the above, another aspect to be noticed in this regard is the delay in producing the articles before the court. It is evident that the articles were seized on 25.11.2001 Crl.A.No.1332/2007 9 but Ext.P3 property list would indicate that the same was produced before the court only on 29.11.2001. Even though PW1 was asked about the same during the cross examination, no satisfactory explanation was offered by him for the delay. In order to establish the evidence under the provisions of the Abkari Act, which is very stringent in nature, the prosecution has an obligation to establish the tamper proof custody of the articles seized, right from the date of seizure. In this case, admittedly there was delay of four days and lack of proper explanation for the same cause serious shadow of doubt. This court in several cases held that the delay in producing the articles before the court is fatal to prosecution **[See Sukumaran v. State of Kerala (2019 (3) KLT 920), Ravi v. State of Kerala (2011 (3) KLT 353 and Vikraman v. State of Kerala ( 2018 (1) KLT 822]** 11. Another discrepancy pointed out is regarding the lack of description of seal in Ext.P1 mahazar. Ext.P1 mahazar does not contain the description of seal and in the evidence of PW1 also, he has not stated as to the description thereof. Lack Crl.A.No.1332/2007 10 of specimen seal on the mahazar is a lacuna as held in **Moothedath Sivadasan and Another v. State of Kerala [2021 (1) KLT 744].** In **Vijay Pandey v. State of Uttarpradesh [AIR 2019 SC 3569]** it was held by the Honourable Supreme Court that, mere production of the chemical analysis report by itself is not sufficient to establish the guilt of the accused. It was held that the prosecution has to relate the article seized with the sample which was subjected to chemical analysis. For the said purpose, all sequence of events, right from the seizure of the articles until the same is submitted for chemical analysis, are to be proved by the prosecution. In this case, the lack of description of seals on Ext.P1 mahazar which is a contemporaneous document prepared at the time of occurrence, creates a serious shadow of doubt on the prosecution case, as the evidence indicating the handing over of the samples in a tamper proof condition is lacking. In such circumstances, this is also a ground which prompts this Court to grant benefit of doubt to the appellant herein. Crl.A.No.1332/2007 11 12. In such circumstances, when all the above aspects are taken into consideration, only conclusion possible is that the prosecution failed to establish the offence against the accused with required proof. Accordingly, I find merits in this appeal. In the result, this appeal is allowed, conviction and sentence imposed upon the appellant as per judgment dated 27.06.2007 in S.C.No.496 of 2005 of Addl.Sessions Court (Adhoc -II), Thodupuzha is hereby set aside. Appellant is found not guilty and acquitted of the charges. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/24.2.22