Melacheri Sajeesh v. State

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY ,THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940 ## CRL.A.No. 894 of 2008 AGAINST THE ORDER/JUDGMENT IN SC 1688/2005 of ADDITIONAL SESSIONS COURT (ADHOC-I), THALASSERY ## APPELLANT/ACCUSED: MELACHERI SAJEESH AGED 29 YEARS, S/O.BALAN, SAROVARAM, PALLUR AMSOM,, CHALAKKARA, MAHE. BY ADVS. SRI.M.SASINDRAN SRI.K.P.HARISH ## RESPONDENT/COMPLAINANT: STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ## OTHER PRESENT: SRI.S. RAMESH CHAND, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl. Appeal No. 894/2008 -2- ## **JUDGMENT** The appellant is the sole accused in S.C. No. 1688 of 2005 on the file of the Additional Sessions Court (Adhoc-I), Thalassery for an offence punishable under Section 55(a) of the Abkari Act. The case was charge sheeted by the Sub Inspector of Police, Chokli Police Station and was taken on file as C.P. No. 120 of 2005 on the file of the Judicial First Class Magistrate Court, Thalassery and thereafter, it was committed to the Sessions Court, Thalassery. Subsequently, the case was transferred to the Additional Sessions Court (Adhoc-I), Thalassery for trial and disposal. 2. The case of the prosecution is that on 06.07.2004, at about 4.30 p.m., the accused was found transporting 10 cases of Indian made foreign liquor, which are saleable in Pondichery State only, in a goods autorickshaw No. KL-13-1019 at Peringadi of Chokli Amsom in violation of the provisions of the Abkari Act and the Rules. 3. On the side of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P9 were marked to prove the prosecution case. No defence evidence was adduced. The accused was questioned under Section 313 Cr.P.C and he denied the incriminating circumstances brought out in evidence. 4. PW1, the then Sub Inspector of Chokli Police Station, was the Crl. Appeal No. 894/2008 -3- detecting Officer and he deposed that on 06.07.2004, while he was on patrol duty, conducted a vehicle checking at Peringadi and at 4.30 p.m., he found a goods autorickshaw No.KL.13/1019 coming from Mahe and he stopped and searched the vehicle and found 40 cases of IMF liquor were therein. There were 1650 bottles and on all the bottles, it was recorded that 'for sale in Pondichery State only'. He has further deposed that in the presence of witnesses, the liquor bottles were examined. One bottle each from each brand was taken as sample and they were sealed and labelled containing the signatures of PWs 1 and 2. PW2 is the Police Constable of Chokli Police Station, who supported the prosecution case. PW3 is the Sub Inspector of Police, who conducted the investigation and visited the place of occurrence and prepared Ext.P6. PW4 is the Sub Inspector of Chokli Police Station who charge-sheeted the case. Ext.P8 is the inventory prepared by the Asst. Excise Commissioner and Ext.P9 is the report of Chemical Analysis. 5. PW1 has categorically found that the appellant was driving the vehicle and when he searched the vehicle, he found 40 cases of IMFL. PW2 is the Officer who accompanied PW1 and he has also supported the case of PW1. No independent witnesses were cited on the side of the prosecution in order to establish the seizure of the contraband articles from the possession of the appellant. 6. The learned counsel for the appellant contended that Crl. Appeal No. 894/2008 -4- eventhough as per the prosecution case, all the contraband articles were sealed and labelled from the place of occurrence, when it was produced before court there was no label as mentioned. He has also contended that there was no mention about the seal which was used for sealing or labelling the alleged contraband articles. He has further contended that no search memo was prepared before inspecting the vehicle. After taking the sample, the remaining articles were forwarded to the Assistant Excise Commissioner as per Ext.P8. But, the necessary details were not indicated in the inventory and therefore, the prosecution has miserably failed to prove that the contraband articles seized in this case. According to the appellant, the prosecution has failed to prove that the sample which was sent for chemical analysis was the very same liquid which was taken from the contraband articles. There was also delay in producing the sample for chemical analysis. Further the Investigating Officer has not questioned the nearby residents to prove the case. In fact, the date of occurrence was on 06.07.2004; but, the contraband articles were received before court only on 02.08.2008 i.e., after 16 days. There was no proper explanation on the side of the prosecution regarding the delay. There was no permission for transportation outside the Pondichery State which is only violation of Abkari Rules and therefore, the offence under Section 55(a) will not lie against the appellant. According to the learned counsel, the court below ought to Crl. Appeal No. 894/2008 -5- have found that the evidence of the prosecution witnesses are highly contradictory since no independent witnesses were cited or examined by the prosecution to prove their case. On the aforesaid grounds, the appellant prays for setting aside the conviction and the sentence passed by the court below. 7. PW1 is the Sub Inspector of Office, Chokli Police Station who detected the offence. He has given evidence to the effect that while he was on patrol duty, found the appellant in an autorickshaw bearing registration No. KL-13/1019 from Mahe and it was stopped and searched and found 40 cases of Indian Made Foreign Liquor. Out of them, 30 cases contained whisky of 180 ml. each. One case contained 18 bottles of 180 ml each. Three cases contained brandy of 180 ml. bottles. One case contained 24 bottles of 375 ml. each whisky, five cases contained whisky bottles of 750 ml. and of 12 bottles each. On all the bottles, it was recorded that 'for sale in Pondichery State only'. In the presence of the witnesses, the liquor bottles were examined. One bottle each from each brand was taken out and they were opened and the contents therein was tested and by smelling and tasting and confirmed that it was Indian Made Foreign Liquor. Then he has taken samples of 180 ml brandy, 180 ml whisky, 375 ml. Whisky, 750 ml. Whisky and 750 ml. Brandy etc. and were sealed and labelled containing the signatures of PW1, the witnesses and the appellant. As per the prosecution, 2.235 Crl. Appeal No. 894/2008 -6- litres were taken as sample from the entire contraband articles alleged to have seized from the possession of the appellant. Thereafter, the appellant was arrested as per Ext.P1 memo. The articles and the vehicles were seized by preparing a mahazar which was marked as Ext.P3. Then on reaching the Police Station, crime was registered against the appellant as per Ext.P1. The sample bottles were forwarded to the court as per Ext.P5 property list. PW2 is the Police Constable who accompanied PW1 for detection and he has also supported the case of prosecution. He has also signed Exts.P1 and P2 documents. PW3 is the Sub Inspector of Chokli Police Station who conducted investigation in the case, who visited the place of occurrence and prepared Ext.P6 scene mahazar. He has also recorded the statement of witnesses. Except the sample bottles, the autorickshaw and the liquor bottles were forwarded to the Asst. Excise Commissioner. PW4 is the Sub Inspector of Chokli Police Station who charge-sheeted the appellant. So, the prosecution attempted to prove that a huge quantity of liquor was seized from the vehicle which was driven by the appellant. According to the prosecution, 1650 bottles were seized from the possession of the appellant. The appellant's counsel has taken a contention that no search memo was prepared by PW1 before searching the vehicle. It is important to note that the said vehicle was intercepted as a routine checking of the vehicle to prevent the transportation of liquor from Pondichery State and it is Crl. Appeal No. 894/2008 -7- not necessary for preparing a search memorandum before searching the vehicle. There is no evidence to the effect that PW1 has received prior information regarding the transportation of the contraband articles by the appellant. So, the lack of search memorandum on the side of prosecution will not in any way affect the case of the prosecution. 8. It is important to note that after detecting the sample, the rest of the contraband articles were forwarded to the Assistant Excise Commissioner for which an inventory was prepared which was Ext.P8. According to the appellant's counsel, necessary details were not included in the inventory. It is true that when the inventory is prepared, all the details will be included therein. Except this argument, nothing was brought out to establish that the articles seized form the possession of the appellant was forwarded to the Assistant Excise Commissioner and from the evidence of PWs 3 and 4, it was revealed that except the sample, rest of the contraband articles were forwarded to the Excise Commissioner. So the factum that the contraband articles were forwarded to the Assistant Excise Commissioner is challenged by the appellant before the court below. 9. It was found that there is a delay of 16 days in producing the contraband articles before court. The lower court held that there was no circumstances to prove that those articles were tampered and therefore, the delay alone is not sufficient to disprove the case of the prosecution. Crl. Appeal No. 894/2008 -8- There is delay of 16 days in producing the contraband articles before court. About 1650 bottles of liquor were seized from the appellant. In fact, it was brought out in evidence that only 2.235 litres of contraband articles were taken for sending for chemical examination. Eventhough Ext.P9 chemical analysis report would prove that 5 bottles were taken for chemical examination, the samples consists of two bottles of 180 ml. each, another two bottles of 750 ml. each and a bottle containing 375 ml. each . Thus, in total, 2.235 litres were sent for chemical examination. On examination, it was found that the contraband articles contained high volume of ethyle alcohol. As per the Abkari Act, the permissible quantity which one could carry IMFL is 3 litres. So, it is proved as per Chemical Examination that the appellant was carrying less than 3 litres. No evidence was adduced by the prosecution with regard to the contents in the rest of the bottles. No evidence was adduced by the prosecution to prove that he was carrying merely 1650 bottles of IMFL. Moreover, there is delay in producing the contraband articles before court also. No explanation was given by the prosecution for the delay in producing the same before this Court. 10. In the decision reported in _**Kumaran P. v. State of Kerala and another**_ [2016 (5) KHC 632], the Apex Court has held that the sample which was taken from the spot has to be produced before court in time and if there is delay, the prosecution has to explain what Crl. Appeal No. 894/2008 -9- prevented them from producing the sample before court. In the absence of the explanation by the prosecution, the accused is entitled to the benefit of doubt. 11. For the reasons mentioned above, I find that the prosecution has failed to prove the guilt of the accused under Section 55(a) of the Kerala Abkari Act and therefore, he is entitled to get acquittal. In the result, this appeal is allowed and the conviction and the sentence imposed against the accused in S.C. No. 1688 of 2005 on the file of the Additional Sessions Judge, Thalassery is hereby set aside. The appellants is set at liberty forthwith. The bail bond, if any, executed by the appellant shall stand cancelled. sd/- **ANNIE JOHN, JUDGE.** _Rv_