Mohandas @ Paul v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937** **CRL.A.NO. 2179 OF 2004 (B) ---------------------------** **AGAINST THE JUDGMENT IN SC NO.15 OF 2003 OF ADDITIONAL SESSIONS COURT, FAST TRACK COURT-II, ALAPPUZHA DATED 06-12-2004** **----------------------** ## **APPELLANT(S)/ACCUSED:** **--------------------** **MOHANDAS @ PAUL, S/O.DAMODHARAN, PERATHERIL HOUSE, ANJILIPRA MURI, KANNAMANGALAM.** **BY ADVS. SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL SMT.SREELEKHA PUTHALATH** ## **RESPONDENT(S)/STATE AND COMPLAINANT:** **------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. THE EXCISE INSPECTOR, MAVELIKKARA EXCISE RANGE, MAVELIKKARA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.2179 of 2004 ---------------------------------Dated this the 18[th] day of February, 2016** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence in S.C. No.15 of 2003 under Sec.8(1) and (2) of the Kerala Abkari Act by the Additional Sessions Judge (Fast Track-II), Alappuzha. The charge against the appellant is that on 06.07.2000 at 5.45 p.m., the accused was found lifting 35 litres of spirit in a plastic can from the pond situated in the Vadakkankoickal Durga Temple compound. On seeing this, the excise officials conducted a search and detected three other cans containing spirit from the pond. The accused was arrested and the contraband articles were seized. Reaching at the Excise Range Office, they registered a crime. After completing investigation, the Excise Range Inspector, Mavelikkara laid charge before the Judicial First Class Magistrate Court, Mavelikkara, from there, the case was committed to Sessions Court, Alappuzha. Subsequently, it was made over to Additional Sessions Court (Fast Track II), Crl. Appeal No.2179 of 2004 2 Alappuzha. 2. During trial, the prosecution examined PW1 to PW6 and marked Exts.P1 to P4. MO1 to MO6 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Sessions Judge convicted the appellant under Sec.8(1) and (2) of the Kerala Abkari Act and sentenced him to undergo rigorous imprisonment for two years and a fine of Rs.1,00,000/-. In default of payment of fine, rigorous imprisonment for six months. Being aggrieved by that, the appellant preferred this appeal. 3. Learned counsel appearing for the appellant contended that there is no independent corroboration to the alleged seizure. MO1 to MO6 were seized from the temple pond which is a public place but, no evidence has been adduced by the prosecution to show that the appellant kept those articles in the temple pond. Moreover, no forwarding note was prepared in this case Crl. Appeal No.2179 of 2004 3 to prove the content of the seized articles. 4. Learned Public Prosecutor also admitted that no forwarding note was marked in the trial court. 5. The seizure of spirit was deposed by the Excise Circle Inspector, Mavelikkara, who was examined as PW1 in the trial court. The evidence of PW1 shows that on that day, while he was conducting patrol duty within his jurisdiction, he found the appellant lifting a can from the pond situated at Anjilipra Vadakkankoickal temple. On seeing this, PW1 approached the accused and while questioning, the accused informed that three other cans were kept in the pond. PW1 inspected the four cans and identified it as spirit. He took 200 m.l. each from each cans as sample and sealed it at the place of occurrence. The balance spirit also sealed at the place of occurrence. The accused, independent witnesses and PW1 put their signatures in the label affixed in the sample. For that, he prepared Ext.P2 mahazar. He also identified MO1 to MO4 and MO5 series. He entrusted the accused and the contraband before the Excise Range Inspector. PW1 was Crl. Appeal No.2179 of 2004 4 cross examined by the defence counsel. In cross examination he admitted that his personal seal was affixed in the sample. 6. PW2, Excise Range Inspector deposed that on the basis of Ext.P1, he registered the crime and occurrence report. Ext.P2 is the occurrence report in which, he obtained the signature of the accused. The seized articles were produced before the court as per Ext.P3 property list. PW3 deposed that he accompanied PW1 on the date of seizure of MO1. PW3 also gave a similar version given by PW1. He admitted the signature in Ext.P1 seizure mahazar and also identified MO1 to MO6. In cross examination, he stated that two other persons were found near the property. But, PW1, in his cross examination deposed that no other independent witnesses were present near the property. 7. The independent witness PW4 denied his signature in MO1 to MO4 but, he admitted his signature in Ext.P1. He did not see the seizure of MO1 to MO4. According to PW4, while he was returning after his work ## Crl. Appeal No.2179 of 2004 5 and reached on the western side of the temple, he found the excise jeep in the Panchayath road and signed in the mahazar at that place. PW5 also admitted his signature in MO1 to MO6 but, he did not see the seizure of spirit. PW6 completed the investigation and laid charge before the court. The sample was sent over to chemical examiner’s lab and inspected there. Even though, PW6 deposed that, he obtained Ext.P4 chemical examination report but the forwarding note for sending the sample with sample seal was not produced in the trial court. ## 8. This Court in **Rajamma v. State of Kerala** ## **[2014 (1) KLT 506]** held as follows: “Mere arrest of the accused with the material object is not sufficient to establish that the accused has committed the offence punishable under Sec.55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis. In this case no forwarding note or requisition for sending the samples for chemical analysis is prepared and filed Crl. Appeal No.2179 of 2004 6 before the court. If a formal requisition or forwarding note is prepared and filed before the court, the same would have contained the sample seal, of the seal allegedly affixed by PW1 on the sample bottle. The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with the sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” 9. It is true that the punishment provided under the Kerala Abkari act is too harsh. Therefore, recovery of the contraband articles from the pond has to be proved beyond reasonable doubt. The independent witnesses did not support the prosecution case, then the evidence of the official witness alone is not reliable for a conviction. Recovery of MO1 to MO4 were not proved. When Crl. Appeal No.2179 of 2004 7 independent witnesses did not support the prosecution case and the investigating officer failed to question the temple authorities, I am of the opinion that recovery of the contraband article from the possession of the accused is not proved for a conviction. The person who took the sample has to obtain a sample seal in the copy of the forwarding note and to produce it before the court so as to ensure the transparency and bonafideness in complying the procedures for taking samples. 11. The apex court in **Makhan Singh v. State of Haryana [2016 (1) SCC (Cri.) 96]** held that it is well settled principle of the criminal jurisprudence that when more stringent punishment is provided, more heavy is upon the prosecution to prove the case. Therefore, strict proofs are necessary to prove the alleged offence. When the offence was detected from a temple compound, the evidence of independent witness is necessary. In the absence of such evidence, I am of the opinion that, prosecution failed to prove the case beyond reasonable doubt. Ext.P4 chemical examination result, itself is not Crl. Appeal No.2179 of 2004 8 sufficient for a conviction under Sec.8(1) and (2) of the Kerala Abkari Act. 12. In the result, the conviction and sentence passed by the Additional Sessions Judge (Adhoc-II), Alappuzha under Sec.8(1) and (2) of the Kerala Abkari Act are set aside. The appellant is acquitted and set at liberty. This appeal is allowed accordingly. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/22/02/2016 P.A. To Judge