Mohanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 11TH DAY OF MARCH 2014/20TH PHALGUNA, 1935** **CRL.A.No. 1932 of 2005 ( ) ---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 638/2004 of ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA DATED 29-10-2005.** **APPELLANT/ACCUSED :** **-----------------** **MOHANAN, S/O. KUTTAPPAN, MANGALATHU VEEDU, VALIYAKANDAM KARA, RAJAKKADU VILLAGE.** **BY ADV. SRI.S.RAJEEV.** **RESPONDENT/COMPLAINANT :** **----------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. (CR.NO.185/2002 OF RAJAKKADU POLICE STATION).** **BY PUBLIC PROSECUTOR SMT.JASMINE.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** ## **A.HARIPRASAD, J. -----------------------------------------------Crl. Appeal No.1932 of 2005** **-----------------------------------------------Dated this the 11[th] day of March, 2014.** ## **J U D G M E N T** Appeal filed under Section 374(2) Cr.P.C. Appellant was tried, convicted and sentenced by the learned Additional Sessions Judge (Adhoc - I), Thodupuzha in S.C No.638/2004 for offences punishable under Sections 8(2) and 55(g) of Abkari Act. The conviction and sentence are impugned in this appeal. 2. Prosecution case is that at about 9.30 a.m on 07-10-2002 the appellant was found in possession of 2 litres of illicit arrack in a black can and 50 litres of wash, a material used for the manufacture of arrack in a can of 50 litres capacity. The arrack was held by him in a can and the wash was kept in a pit in his property. On seeing the detecting officer, the accused abandoned the can and ran away. After completing the formalities, a case was registered against the accused and later he was apprehended. In order to substantiate the prosecution **Crl. Appeal No.1932 of 2005 2** case, eight witnesses were examined and Exts.P1 to P7 were marked. DW1 is the defence witness. Ext.D1 is the document marked by the defence. MO's 1 to 4 are the material objects. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. Learned counsel for the appellant contended that the conviction and sentence is bad for following reasons : This is a case investigated by an Assistant Sub Inspector of Police, an officer, who is not empowered to conduct investigation into an Abkari offence. Secondly, it is contended by the learned counsel for the appellant that there is an unexplained delay of 41 days in producing the sample before the trial court. It is also not established by any evidence as to where the sample was kept during the period of 41 days. Further more, it is contended by the learned counsel for the appellant that there is no evidence to connect the accused with the land from where **Crl. Appeal No.1932 of 2005 3** the contraband articles allegedly were recovered. There was an attempt to raise dispute as to the identity of the accused as well. 5. Before considering these contentions, it will be apposite to go through the oral evidence. PW1 was working as Assistant Sub Inspector of Police at the material time. He is the detecting officer. His testimony would show that on 07-10-2002 he received an information at 8.45 a.m that illicit arrack was stored in the house of the appellant. That information was recorded in the general diary. Thereafter, he along with PW2 and other officers proceeded to the place. When PW1 reached near the house of the appellant, he saw the accused running away jettisoning a can held by him. In spite of chasing, he could not be apprehended. On examination, it was found that the can held by the appellant contained illicit arrack. A search conducted in the property revealed that about 50 litres of wash was stored by the appellant. PW1 stated that he took samples from arrack as **Crl. Appeal No.1932 of 2005 4** well as wash and sealed it. He prepared Ext.P1 mahazar from the place of occurrence. PW1 was subjected to cross examination. He stated that he was the Station House Officer at the material time. However, no document is produced to show that he was in charge of the police station on the date of recovery of the contraband. It is his version that Sub Inspector of Police took charge in the noon on the same day. Neither the general diary nor any document is produced at the time of evidence to show that PW1 was holding additional charge of Sub Inspector of Police. PW1 deposed that the appellant was a person known to him even before this incident. It is the testimony of PW1 that he did not conduct any raid in the house of the appellant as it was closed. PW's 2 and 3, the independent witnesses cited to prove the recovery of contraband, turned hostile to prosecution. PW5 was the Head Constable, who accompanied PW1. His testimony is almost in tune with that of PW1. Learned counsel for the ## **Crl. Appeal No.1932 of 2005 5** appellant would point out that the prosecution case is to the effect that about 50 litres of wash was recovered from the possession of the accused .PW5 in cross examination stated so. However, MO1 can was having only about 30 litres in volume. This discrepancy is also highlighted by the learned counsel for the appellant. 6. Regarding the competence of PW1 to conduct search, seizure and other part of investigation, attention of this court is drawn to S.R.O No.321/1996, which reads as follows : “ _**S.R.O No.321/296** .- In exercise of the powers conferred by section 4 of the Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective_ **Crl. Appeal No.1932 of 2005 6** _Jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid._ _This notification shall come into force with immediate effect. (G.O.(P) No.69/96/TD dt. 29-03-1996.”_ 7. Learned counsel for the appellant contended that PW1 was not empowered to conduct search or seizure. Going by the provision of the above notification, it is therefore contended that the search, seizure, sampling and other formalities done by PW1 is without any legal authority and therefore it is vitiated. In order to substantiate this contention, reliance is placed on the following decisions in _**Sivadasan v. State of Kerala ( 2007(3) KHC 739)**_ and _**Biju and others v. State of Kerala (2011(1) KHC 518)**_ . **Crl. Appeal No.1932 of 2005 7** 8. It is evident that the detecting officer was not empowered to conduct search and seizure in this matter. Therefore, on that score, the prosecution has to fail. 9. Another point raised by the learned counsel for the appellant is regarding the unexplained delay in producing the contraband before the court. Ext.P3 is the property list. It is seen that the material records were produced on the next day of detection. However, the property was produced only on 18-11-2002. Neither PW1 nor PW's 7 or 8 have explained as to who was in possession of the material objects and samples for 41 days. There is no evidence to think that the samples were in proper custody during these time. The principles in _**Ravi v. State of Kerala and Another ( 2011(3) K.L.T 353)**_ is to the effect that there must be link evidence to connect the contraband allegedly recovered from the possession of the accused reached in a tamper proof condition in the chemical laboratory. Learned **Crl. Appeal No.1932 of 2005 8** Public Prosecutor relied on a decision in _**Rajan v. State of Kerala (2013(3) K.L.T 654)**_ to contend that merely for the delay in producing a sample before the court, the prosecution case _**Ravi**_ ' _**s**_ case shall not be thrown overboard. The principle in (supra) is only to the effect that there must be a reasonable explanation for the delay in producing the sample recovered from the accused in court and it must be properly explained as to the nature of custody of the sample. Only this principle has been reiterated in _**Rajan's**_ case (supra). In this case, none of the officers have deposed that they kept the contraband in their custody in a safe condition until it is produced before the court. Therefore, the principle in _**Ravi's**_ case (supra) is squarely applicable in this case. Hence, the prosecution has to fail on that score also. 10. Learned counsel for the appellant contended that there is no evidence to connect the appellant with the property **Crl. Appeal No.1932 of 2005 9** from where the alleged recovery was effected. Ext.P6 possession certificate would show that the property described therein belonged to the wife of the accused (PW4). However, it does not show the presence of any house therein. Ext.D1 coupled with the oral evidence of DW1 would show that the house number propounded by the prosecution belonged to one 'Thankamma'. Learned Public Prosecutor would contend that this Ext.D1 building tax assessment register was pertaining to a period from 1993-94 to 1997-98. The alleged recovery was in the year 2002. There is some force in the contention that merely on the basis of Ext.D1, it cannot be held that the house mentioned in Ext.P1 is not the house of the accused during the year 2002. However, the prosecution has not discharged the burden of proving the exact details of the property or the house, from where recovery was effected. Learned counsel for the appellant relying on Sections 46 and 47 of the Abkari Act would contend that the Abkari **Crl. Appeal No.1932 of 2005 10** officers are entitled to invoke certain powers to call for documents for the purpose of investigation. None of the powers have been invoked in this case. Even though learned counsel for the appellant raised a dispute as to the identity of the accused, I do not find any reason to think that the officers failed to identify the accused on sight because PW's 1 and 5 have a case that the accused was known to them earlier. Totality of the prosecution evidence fall short of the legal requirement of establishing the guilt of the accused. Therefore, I find that the conviction of the appellant under Sections 8(2) and 55(g) of the Abkari Act is not sustainable. In the result, the appeal is allowed. Appellant is acquitted of all charges in S.C No.638/2004 for offences punishable under Sections 8(2) and 55(g) of Abkari Act on the file of Additional Sessions Judge (Adhoc - I), Thodupuzha. The appellant shall be set free forthwith, if not wanted in **Crl. Appeal No.1932 of 2005 11** any other case. His bail bond shall stand cancelled. If any amount has been deposited by the appellant as a condition for securing bail, it shall be returned to him. All pending interlocutory applications will stand dismissed. **Sd/-** //True Copy// P.A to Judge **A.HARIPRASAD, JUDGE.** amk