Mohanan, S/o Balan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **FRIDAY, THE 3RD DAY OF JANUARY 2014/13TH POUSHA, 1935** **CRL.A.No. 988 of 2005 ( ) --------------------------** **AGAINST THE ORDER IN SC 56/2000 of ADDL. DISTRICT COURT (ADHOC), KOLLAM, DATED 10-06-2005** **APPELLANT(S)/ACCUSED: ---------------------** **MOHANAN, S/O.BALAN, PARAKKATTU PUTHEN VEEDU, PANIYIL, THAZAMTHEKKU CHERI, CHIRAKKRA VILLAGE, KOLLAM.** **BY ADVS.SRI.C.PRATHAPACHANDRAN PILLAI SRI.R.SURAJ KUMAR SRI.SUNIL J.CHAKKALACKAL SMT.V.BEENA** **RESPONDENT(S): ----------------------------** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA FOR SUB INSPECTOR OF POLICE, CHATHANNOOR POLICE STATION, KOLLAM.** **BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.A.No.988 of 2005** **------------------------------Dated this the 3[rd] day of January, 2014.** ## **J U D G M E N T** The appellant is the sole accused in S.C.No.56/00 of the court of Additional District and Sessions Judge (Ad hoc)-I, Kollam, and in this appeal he challenges the judgment dated 10.6.2005 in the above sessions case by which he is convicted and sentenced for the offence under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 17.11.1998 at about 6 p.m. the accused was found in possession of 1.5 ltrs. of arrack for sale in a black cannas, on the northern side of the Thottuvarampa of Polachira in Thazham thekku muri of Chirakkara village and hence the accused has committed the offence punishable under Sections 55(a) and (i) of the Abkari Act. On the above allegation, Crime No.325/98 was registered in the Chathannur Police Station. **Crl.A.No.988 of 2005** 2 3. On completing the investigation in the above crime, a report was filed in the court of Judicial First Class Magistrate-Paravur, based upon which C.P.No.101/98 was instituted and subsequently by order dated 30.9.1999, the learned Magistrate committed the case to the Sessions court wherein S.C.No.56/00 was instituted and thereafter eventually transferred the case to the present court for trial and disposal. Thus when the accused appeared, after perusal of the prosecution materials and hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable under section 55(a) of the Abkari Act, which when read over and explained to the accused, he denied the same and pleaded not guilty, pursuant to which the prosecution adduced its evidence by examining Pws.1 to 4 and by producing Exts.P1 to P6 documents. M.O.1 can is also identified as material object. The memorandum of evidence in the present case consists of the defence evidence as well, including the testimony of Dws.1 to 4. **Crl.A.No.988 of 2005** 3 The trial court finally found that it is beyond reasonable doubt that the accused was found in possession of arrack as alleged by the prosecution and accordingly he is found guilty under section 55(a) of the Abkari Act and consequently he is convicted thereunder. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of `1 lakh and in case of default of payment of fine, the appellant/accused is directed to undergo simple imprisonment for a period of 6 months. Set off is allowed under section 428 of Cr.P.C. Challenging the above finding and order of conviction and sentence, the accused in the above sessions case preferred this appeal. 4. I have heard Adv.Sri.Prathapchandran Pillai, the learned counsel for the appellant and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State. 5. Though altogether 4 witnesses were examined from the side of the prosecution, only Pws.3 and 4 supported the case of the prosecution, who are official **Crl.A.No.988 of 2005** 4 witnesses, and the independent witnesses who were examined as Pws.1 and 2, turned hostile to the prosecution. Thus when Pws.3 and 4 were examined, they have deposed strictly in terms of the allegation of the prosecution. According to Pws.3 and 4, they reached on the northern side of the Thottuvarampa of Polachira in Thazham thekku muri of Chirakkara village at about 6 p.m. on 17.11.1998, during which, the accused found carrying a black cannas and on entertaining doubt, when the accused was called, he tried to escape but he was intercepted by the police party and on inspection of the cannas, which was possessed by the accused, they found some liquid in the cannas which was identified as arrack by smelling and tasting and accordingly the accused was arrested then and there, and the contraband article was seized and samples were drawn from the contraband article that contained in the cannas. According to Pws.3 and 4, the entire proceedings were elaborately recorded in a mahazar prepared at the spot and the arrest of the accused also mentioned therein. **Crl.A.No.988 of 2005** 5 According to Pws.3 and 4, on completing the entire proceedings, they were returned to the Police Station and thereafter registered a crime case and thereafter the accused as well as the contraband article and the samples etc. were produced before the court and as per the request of the police, sample which was produced before the court was sent for chemical analysis and thus obtained a report certifying that the sample contained 53.75% by volume of ethyl alcohol. As I indicated earlier, Pws.1 and 2 who are attestors to the mahazar, which said to have prepared by PW4 and who are eye witnesses to the occurrence, had turned hostile. But PW2 during his examination admitted his signature in the mahazar prepared by the Police and thus the mahazar is marked through PW2 as Ext.P1. PW4the Sub Inspector of Police who detected the crime, when examined, he had identified Ext.P2 FIR, Ext.P3 arrest notice issued to the brother of the accused, Ext.P4 property list, Ext.P5 requisition and Ext.P6 chemical analysis report. 6. The case put forward by the appellant/accused is **Crl.A.No.988 of 2005** 6 that he is falsely implicated in the above crime, since his relatives and local inhabitants made complaint before the Superintendent of Police about his illegal arrest connected with a murder case. According to the defence, he was taken into custody by the police between 10 to 11 a.m. about 5 years back and to prove the above fact, the wife of the accused is examined as DW1 and the neighbours were examined as Dws.2 to 4. After considering the above evidence of both the prosecution and the defence, the learned Judge of the trial court opted to accept the prosecution evidence in support of his finding and not prepared to accept the case putforward by the accused as well as the defence evidence. 7. The learned counsel for the appellant vehemently submitted that having regard to the rigorous and vigorous nature of punishment contemplated by the provisions of the Abkari Act, the prosecution as in any other case, is bound to prove the alleged offence beyond all reasonable doubt by adducing cogent and satisfactory evidence. But in the **Crl.A.No.988 of 2005** 7 present case, the prosecution has miserably failed in discharging the above traditional and inherent duty and therefore the trial court is wrong in convicting the appellant for the offence under section 55(a) of the Abkari Act. In order to substantiate the above contention, the learned counsel took me through the deposition of Pws.1 and 2, the independent witnesses, and it is submitted that after having declared those witnesses as hostile, no earnest step is taken by the prosecution to effectively cross examine them in accordance with the procedure prescribed in the Cr.P.C. as well as in the Evidence Act. It is also the submission of the learned counsel that, the facts deposed by Pws.1 and 2 are not effectively challenged by the prosecution and therefore those facts can be taken as admitted by the prosecution. Thus according to the learned counsel, if the facts, which are not disputed by the prosecution are taken as admitted, it can be seen that the accused was taken into custody, not connected with the seizure of the contraband article as alleged by the **Crl.A.No.988 of 2005** 8 prosecution, but in some other case. So, according to the learned counsel, the above facts are sufficient to show that the prosecution has miserably failed to prove the case beyond reasonable doubt. It is also contended by the learned counsel that in producing the contraband article and the sample before the court, there is a delay of 10 days and such inordinate delay is neither explained by the prosecution nor considered by the trial court. Therefore, the delay occurred in producing the sample and material object has to be considered in favour of the defence. It is also contended that in the present case, no sketch plan of the scene of crime is prepared by the prosecution and produced before the court and thereby caused prejudice to the accused. Thus according to the learned counsel, the trial court has miserably failed to consider the above defects in the prosecution case and simply accepting the evidence of Pws.3 and 4, the official witnesses, the trial court found guilty against the accused and therefore the said finding is liable to be set aside. **Crl.A.No.988 of 2005** 9 8. On the other hand, the learned Public Prosecutor submitted that even though the independent witnesses turned hostile, the evidence of Pws.3 and 4-the official witnesses remained intact and there is no contradiction or infirmities in the evidence of those official witnesses and therefore the trial court is fully justified in accepting and acting upon the evidence of official witnesses. According to the learned Public Prosecutor, the delay is not put to the official witnesses and no explanation is sought and therefore in appeal, the defence cannot argue for an acquittal on the basis of such delay. Thus, according to the prosecution, the available evidence including the testimony of the official witnesses and the contemporary documents produced by the prosecution, points towards the guilt of the accused and therefore the trial court is fully justified in finding and no interference is warranted. 9. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor and I have perused the **Crl.A.No.988 of 2005** 10 ## evidence and materials on record. 10. In the light of the rival contentions and the evidence and materials on record, the question to be considered is whether the trial court is justified in convicting the appellant for the offence under section 55(a) of the Abkari Act. Before considering the above question, it is worthwhile to note that the specific defence taken by the accused is that he was taken into custody by the police, connected with the murder of one Vikraman and that was about 5 years back in a morning and when the relatives and neighbours of the accused had complained about the above illegal arrest before the superior police officer, the accused is falsely implicated in the present crime and no contraband article, including the illicit arrack, was recovered from the possession of the accused. According to me, the entire prosecution allegation in this case has to be examined in the above backdrops of the defence taken by the accused. As I indicated earlier, the two independent witnesses examined as Pws.1 and 2, were turned hostile **Crl.A.No.988 of 2005** 11 towards the prosecution. Though Pws.1 and 2 declared as hostile, those witnesses were not properly cross examined by the prosecutor and nothing elicited to show that these witnesses had deliberately deposed incorrect and false version before the court to salvage the accused. When these witnesses were cross examined from the side of the defence, they also attempted to bring out the defence case, but according to me, the accused has also not succeeded in that attempt. As the independent witnesses turned hostile, the further question to be considered is whether the evidence available on record is sufficient to canvass a conviction against the appellant/accused for the offence punishable under section 55(a) of Abkari Act. In the present case, as I indicated earlier, the specific prosecution case is that when Pws.3 and 4 reached in front of tea shop of PW1, they found the accused holding a cannas and though the accused tried to escape from the scene of crime, he was chased and intercepted by the police party, including Pws.3 and 4 and thereafter the contraband article **Crl.A.No.988 of 2005** 12 was seized from the possession of the accused at about 6 p.m. on 17.11.1998. About the occurrence and the seizure of the liquid that contained in M.O.1 cannas can be accepted, since the evidence of Pws.3 and 4 in this respect appears to be correct. Though Pws.3 and 4 were subjected to lengthy cross examination, the defence failed to elucidate anything from Pws.3 and 4, so as to shaken the evidence of these witnesses. As per the evidence of Pws.3 and 4, the accused was arrested from the spot itself and M.O.1 cannas was seized from his possession and the material objects including the M.O.1 cannas and the contraband article was seized from the possession of the accused. The above evidence of Pws.3 and 4 was further corroborated by the contemporary evidence and Ext.P1 mahazar which contained the signature of PW2 who admitted the same. Ext.P2 FIR is another contemporary document which shows that immediately after the seizure of M.O.1 and arrest of the accused, PW4 has registered Ext.P2 FIR. So without any hesitation it can be concluded **Crl.A.No.988 of 2005** 13 that the prosecution has succeeded in establishing that the accused was arrested with M.O.1 cannas containing liquid as alleged by the prosecution at about 6 p.m. on 17.11.1998. 11. A Division Bench of this Court in the decision reported in **Ravi** v. **State of Kerala [2011(3) KLT 353]** it has held that, “The production of the property before the court should take place without unnecessary delay and there should be an explanation for the delay when there is delayed production of the property”. As rightly pointed out by the learned counsel for the appellant, section 170(2) of Cr.P.C. also mandate that, “The properties or weapons shall be produced before the court concerned when the accused being produced.” But in the present case, Ext.P4 property list would show that the material objects and the sample were produced before the court only on 27.11.1998, though the alleged seizure was effected on 17.11.1998. Ext.P4 property list contained a date endorsed by the Magistrate **Crl.A.No.988 of 2005** 14 of the committal court by which, on 27.11.1998, the learned Magistrate ordered to verify and receive the material objects. It is also relevant to note that on the reverse side of Ext.P4, there is another endorsement dated 30.11.1998, by which the learned Magistrate allowed to return item no.1 to the safe custody of the Sub Inspector of police, Chathannur. So, the above endorsements shows that the sample as well as the material objects were produced not on any date near to the date of alleged seizure, but only on 27.11.1998. It is pertinent to note that there is another endorsement in Ext.P4, which reads as “despatched on 25.11.1998”. The above endorsement pre-supposes that the material objects and the samples were despatched from the Police Station on 25.11.1998. But still there is a question as to whether the samples and the contraband article were kept in safe custody, till the same produced before the court on 27.11.1998. PW4 is the Sub Inspector of Police who detected the crime and who produced the material objects and samples before the court. No explanation is **Crl.A.No.988 of 2005** 15 forthcoming from PW4, in not producing the samples and contraband article before the court, immediately after the seizure of the same on 17.11.1998. So in the present case, the prosecution is duty bound to explain as to who are the custodian of the contraband article as well as the samples and what are the safety measures taken to keep the samples intact and to prevent tampering of the same during the period between 17.11.1998 and 25.11.1998 and from 25.11.1998 till 27.11.1998. But absolutely there is no whisper from the side of PW4 in this regard. In **Narayani Vs. Excise Inspector (2002(3) KLT 725)** this Court has held that, “No evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband.” In the very same decision, this Court has also held that, “In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98, the chance **Crl.A.No.988 of 2005** 16 of tampering with the sample taken and the residue seized cannot be ruled out.” The available evidence, including Ext.P4 document which is a valid document relied on by the prosecution and in the absence of any explanation either from PW3 or PW4, it cannot be said that there was no tampering of the sample allegedly drawn by PW4 from the contraband article allegedly seized from the possession of the accused. So, the unexplained delay of 10 days in producing the sample and contraband article before the court and the failure on the part of Pws.3 and 4 in deposing and giving explanation before the court that, as to who was the custodian of both the contraband article and the sample, during the period mentioned above, and the safety measures adopted to keep the sample intact, without any room for tampering the same, are certainly fatal to the prosecution. 12. It is also relevant to note that in Ext.P6 chemical analysis report, it is seen certified that, “The seal on the **Crl.A.No.988 of 2005** 17 bottle was intact and found tallied with the sample seal provided.” I fail to understand on what materials and evidence, the chemical examiner issued such certificate. In Ext.P1 mahazar, which said to have prepared at the spot, there is no description about the seal claimed to have affixed on the sample. No specimen seal impression is provided in Ext.P1 mahazar. So, the available evidence, mainly Ext.P1 and the deposition of Pws.3 and 4, are absent about the seal allegedly affixed on the sample bottle. In the present case, no proper forwarding note or requisition filed before the court to send the sample for chemical analysis. On a perusal on Ext.P5 requisition, which shows that there was a formal request to send the sample. But the details including the quantity of the sample and the description of the sample bottle etc. are absent. It is also relevant to note that no sample seal is provided in Ext.P5 requisition. Had the sample seal provided in Ext.P5 requisition and the same forwarded to the chemical examiner, they could have made a comparison and come into conclusion as to whether the **Crl.A.No.988 of 2005** 18 seal affixed on the sample is tallying with the sample seal so provided. But in the present case, there is no evidence as to the seal affixed on the sample bottle, or the sample of the seal so affixed was forwarded to the chemical examiner. In the absence of such evidence, no evidentiary value can be attached to the certificate Ext.P6, issued by the chemical examiner. Therefore, the only conclusion that can be arrived is that there is no legal evidence to show that what allegedly seized from the possession of the accused is illicit arrack. From the above discussions it can be seen that, there is culpable delay in producing the sample as well as the contraband article in the committal court, which delay is not explained and there is no guarantee that the sample which was subjected to chemical analysis by the chemical examiner is the same sample drawn from the contraband article allegedly seized from the possession of the appellant/accused. So, according to me, the prosecution has miserably failed to withstand the test laid by the Division Bench of this Court in the decision cited supra and **Crl.A.No.988 of 2005** 19 the tampering of the samples cannot be ruled out. Therefore, according to me, the prosecution has miserably failed to prove its case against the appellant/accused beyond reasonable doubt and therefore the conviction recorded by the trial court cannot be approved. Accordingly, the conviction recorded by the trial court against the appellant for the offence under Section 55(a) of the Abkari Act is set aside. In the result, this appeal is allowed setting aside the judgment dated 10.6.2005 in S.C.No.56/00 of the court of Additional District and Sessions Judge (Ad hoc)-I, Kollam and the appellant is acquitted of all the charges levelled against him and the bail bond if any executed by him stand cancelled and he is set at liberty. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge