M.K.GOPALAN @ THIRUVAMBADY GOPALAN v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **SATURDAY, THE 20TH DAY OF SEPTEMBER 2014/29TH BHADRA, 1936** **CRL.A.No. 1515 of 2003 ( ) ---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 425/1999 of ADDL.DISTRICT COURT FAST TRACK(ADHOC-i), KOZHIKODE DATED 17-07-2003** **APPELLANT/ACCUSED:** **------------------** **M.K.GOPALAN @ THIRUVAMBADY GOPALAN, S/O. PAYICHI, MANAPPATTU HOUSE, KURACHUNDU AMSOM DESOM, KALLANADU.** **BY ADVS.SRI.C.J.JOY SRI.C.C.ABRAHAM** ## **RESPONDENT/COMPLAINANT:** **-----------------------** **STATE OF KERALA REP.BY THE S.I. OF POLICE, KORACHUNDU THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.A.No.1515 of 2003 .................................................. Dated this the 20[th] day of September, 2014. ## **O R D E R** The accused in S.C.No.425/1999 on the file of the Additional Sessions Judge, (Adhoc-I), Kozhikode is the appellant herein. 2. The appellant was charge sheeted by the Assistant Sub Inspector of Police, Korachundu police station under Sections 55 (a) and (h) of the Abkari Act. 3. The case of the prosecution in nutshell was that on 25.8.1998, at about 8 p.m, the accused was found to be in possession of a kannas containing 1 ½ litres of arrack for sale with a glass, 75 metres away from Kallanode bazar in violation of the provisions of the Abkari Act and thereby he had committed the offence punishable under Sections 55(a) and (h) of the Abkari Act. 4. After investigation, final report was filed before the Judicial First Class Magistrate Court-I, Perambra and the same was committed to the Sessions Court, Kozhikode and it was taken on file as S.C.No.425/1999 and thereafter it was originally Crl.A.No.1515 of 2003 2 made over to the Assistant Sessions Court, Koyilandy for disposal. When the appellant appeared before the court below, the learned Additional Assistant Sessions Judge, after hearing the counsel for the appellant and the learned Public Prosecutor framed charge under Section 55 (a) and (i) of the Abkari Act and the same was read over and explained to him and he pleaded not guilty. Thereafter the case was withdrawn and made over to the Additional Sessions Court (Adhoc-I), Kozhikode by the Sessions Judge for disposal. Thereafter Additional Sessions Judge after hearing both sides, a charge under 58 of the Abkari Act was also framed and the same was read over and explained to him and he pleaded not guilty. 6. In order to prove the case of the prosecution, Pws 1 to 5 were examined and Exts.P1 to P9 were marked and MOs I and II were marked on the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He further stated that he had not committed any offence. Since the evidence in this case did not warrant acquittal under Section 232 of the Code, the accused Crl.A.No.1515 of 2003 3 was called upon to enter on his defence by the Additional Sessions Judge, but no defence evidence was adduced on his side. After considering the evidence on record, the court below found the appellant not guilty under Section 55 (a) and (i) of the Abkari Act and acquitted him of that charge under Section 235 (1) of the Code but found the appellant guilty under Section 58 of the Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs. One lakh, in default to undergo simple imprisonment for nine months. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below. 7. Heard the counsel for the appellant and the learned Public Prosecutor. 8. The learned counsel for the appellant submitted that the evidence of Pws 1 and 2 will go show that the case of the prosecution is not probable and even on seeing the police party, according to the prosecution witnesses, he did not try to escape from the place which is highly improbable and that falsifies the case of the prosecution. Further, there was delay in producing the articles, which has not been explained. The Crl.A.No.1515 of 2003 4 investigation was conducted by the Assistant Sub Inspector of police, who is not an Abkari Officer. Further, no spot sample was taken and there is no evidence to show that the sample was taken and so it cannot be said that the prosecution has proved beyond reasonable doubt that the chemical analysis report relates to the article alleged to have been seized from the possession of the accused so as to convict him for the offence. So according to him, the court below was not justified in convicting the appellant for the offence alleged and he is entitled to get acquittal of the charge leveled against him. 9. On the other hand, the learned Public Prosecutor argued that evidence of Pws 1 and 2 will go to show that kannas was seized from the possession of the accused which contained 1½ litres of arrack and it was produced before the court without delay and PW1 deposed that he is in possession of the same till it was produced before court. Further, the evidence will go to show that there was no tampering of the articles before it reaches the court and the sample was taken from court and it was sent from court and no interference is called for as the lower court was perfectly justified in convicting the appellant for the offence alleged. 5 Crl.A.No.1515 of 2003 10. The points that arise for consideration are: (1) Whether the court below was justified in convicting the appellant for the offence under section 58 of the Abkari Act. (2) If so, the sentence imposed is proper or legal. 11. Point No.1: The case of the prosecution as emerged from the prosecution witnesses was that on 25.8.1998 at about 8 p.m, PW1 the Sub Inspector of Police, Korachundu police station along with PW2 and other officials were conducting patrol duty and at that time, when they reached 75 metres away from Kallanode bazar, they saw the accused coming with MO1 kannas and MO2 glass in his hand and on getting suspicion about his conduct, they stopped near him and examined the kannas in the presence of PWs 3 and 4 and arrested the accused and prepared Ext.P2 arrest memo and Ext.P3 inspection memo and came to the police station along with the accused and the contraband articles seized and prepared Ext.P4 statement and registered Ext.P4(a) First Information Report as Crime No.68/1998 of Korachundu police station against the appellant under Sections 55(a) and (h) of the Abkari Act. Thereafter the investigation was entrusted to PW5, the Crl.A.No.1515 of 2003 6 Assistant Sub Inspector of Police. He went to the place of occurrence and prepared Ext.P7 scene mahazer in the presence of witnesses. PW1 prepared Ext.P5 property list and sent the same to court. Thereafter PW5 sent Ext.P8 forwarding note with Ext.P8(a) covering letter requesting him to send sample for analysis and the sample was sent to Chemical Analysis Lab and Ext.P9 report was obtained, in which it was mentioned that the sample contained 23.69% by volume of ethyle alcohol. PW5 completed investigation and filed final report before court. 12. PW3, the alleged independent witness, did not support the case of the prosecution though he had admitted his signature in Ext.P1 mahazar. He admitted his signature in Ext.P1 but denied having seen the seizure. He had also admitted the signature in MO1 label as well. He had also admitted that another witness Laser is known to him. He had also signed the mahazer and the label on the kannas. He had also admitted that he had signed the same about 100 metres away from Kallanode bazar. He had also admitted that the accused was with them. But he had stated that he had signed only in white paper and he did not know the contents of the same. But, Crl.A.No.1515 of 2003 7 however, he knew the accused. So, it is quite natural that he is not supporting the case of the prosecution in order to help the accused. PW4 is an attester to Ext.P7 scene mahazer. He had also admitted that he was present at the time when police taking the accused. But, he did not know the purpose for which he has been taken. He had denied having stated in Ext.P6 when he was questioned by the police. Then the only evidence available is that of PWs 1 and 2. PW1 is the detecting officer, who had categorically stated that on 25.8.1998 at about 8 p.m he was on patrol duty along with PW2 and other officials and when they reached near the place of occurrence, they saw the accused with MO1 kannas and MO2 glass holding in his hand. On getting suspicion about his movement, they stopped him and on examining the contents of MO1 kannas, they were satisfied that it was arrack and thereafter he had seized the same as per Ext.P1 seizure mahazer after sealing the same. He had arrested the accused and prepared Ext.P2 arrest memo and Ext.P3 inspection memo and came to the police station and registered Ext.P4(a) First Information Report against the accused. He had no case that he had taken spot sample from the contents of the kannas from the place. That was not mentioned in Ext.P1 Crl.A.No.1515 of 2003 8 seizure mahazer as well. Further, seal used was also not mentioned in Ext.P1 seizure mahazer. It is settled law that merely because seizure witness did not support the case of the prosecution is not a ground for acquitting the accused and if the court is satisfied with the evidence of the official witnesses, there is nothing wrong for relying on their evidence to prove the seizure. Though PWs 1 and 2 were cross examined at length, nothing was brought out to discredit their evidence regarding arrest of the accused along with MO1 kannas and MO2 glass from his possession on 25.8.1998 at about 8 p.m as alleged by the prosecution. So the court below was perfectly justified in coming to the conclusion that prosecution had proved the arrest of the accused and seizure of MO1 and MO2 from his possession. 13. In order to convict the accused for the offence of possession of arrack, it must be proved by the prosecution that Ext.P9 chemical analysis report relates to the sample that was taken from the articles said to have been seized from the possession of the accused. In this case, no spot sample was taken. Further though seizure was effected on 25.8.1998 at 8 p.m, the articles were produced before the court only on Crl.A.No.1515 of 2003 9 27.8. 1998. According to PW1, investigation was entrusted to PW5 on the same day and it was he who conducted the investigation. Further. it is seen from Ext.P5 property list that it was prepared only on 27.5.1998 though seizure was effected 25.8.1998.There is no explanation forthcoming on the side of the prosecution for the delay in preparing the property list and producing the same before court. Further, there is no evidence adduced from the side of the prosecution as to when the sample was taken, who had taken it etc. ## 14. In the decision reported in **Sasidharan v. State of Kerala** (2007 (1) KLT 720), it has been held that: “Without link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant. The prosecution had a duty to prove that it was the sample taken from he contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof condition. Committing Magistrates have to take care that contemporary proceedings evidencing the drawing of sample and 10 Crl.A.No.1515 of 2003 sending the same to the Chemical Examiner in a tamper-proof condition are recorded in the proceedings before court. Sessions Judges trying such cases also should ensure that the concerned member of the staff, who had drawn the sample and despatched the same to the Chemical Examiner duly packed and sealed under the covering letter of the Magistrate, is examined before court during trial. The Public Prosecutor in charge of the case also had a duty to file an additional witness list for examining the thondy section clerk (property clerk) concerned so as to establish the nexus between the contraband substance and the accused”. The same view has been reiterated in the decision reported in **Ravi v. State of Kerala** (2011 (3) KLT 353). This aspect has not been considered by the court below before coming to the conclusion that the prosecution has proved beyond reasonable doubt that the accused was found to be in possession of arrack and convicted him for the said offence. So, the conviction entered by the court below against the appellant in view of the discussions made above is unsustainable in law and the same is liable to be set aside and the appellant is entitled to get acquittal of the charge levelled against him giving him the 11 Crl.A.No.1515 of 2003 benefit of doubt. 15. In view of the finding that the prosecution has failed to prove the offence against the accused, the sentence imposed by the court below is also sustainable in law and the same is also set aside. In the result, this appeal is allowed and the order of conviction and sentence passed by the court below against the appellant under Section 58 of the Abkari Act are hereby set aside and the appellant is acquitted of the charge levelled against him giving the benefit of doubt. He is set at liberty. The bail bond executed by him will stand cancelled. The lower court is directed to return the fine amount, if any deposited, to the appellant on making an application for that purpose before court below. Office is directed to communicate a copy of this judgment to the concerned court below at the earliest. ## **K. RAMAKRISHNAN, JUDGE.** cl Crl.A.No.1515 of 2003 12