Mukundan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 CRL.A.No. 1474 of 2003() -----------------------SC.241/2001 of ADDL. SESSIONS COURT FAST TRACK (ADHOC)-II, ALAPPUZHA ................... APPELLANT(S): ACCUSED: ---------------------- MUKUNDAN, S/O. DIVAKARAN, INDU BHAVAN, KARUMADY KIZHAKKEMURI, KARUMADY VILLAGE, KUTTANAD TALUK. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, (EXCISE INSPECTOR, ALAPUZHA RANGE, ALAPPUZHA), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.Appeal No. 1474 of 2003 * * * * * * * * * * * * * * * * * * ## Dated: 17-09-2009 ## JUDGMENT The appellant who was the accused in S.C. No. 241 of 2001 on the file of the Addl. Sessions, Judge, Fast Track (Adhoc – II), Alappuzha challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 55 (a) of the Abkari Act. 2. I heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 3. The case of the prosecution as unravelled through the oral and documentary evidence is the following:- P.W.1 (Sukumaran Nair) is the Excise Preventive Officer attached to Alappuzha Excise Range. He detected the offence. P.W.2 is another Excise Preventive Officer who accompanied P.W.1. P.Ws 3 and 4 are the independent witnesses to the alleged search and seizure. Crl.Appeal No. 1474 of 2003 -:2:- Both of them turned hostile to the prosecution. P.W.5 is the Excise Inspector who proved Ext.P2 crime and occurrence report. He produced the properties before court. P.W.6 who was the Excise Inspector conducted the investigation and laid the final charge before Court. 4. P.W.1 the Excise Preventive Officer attached to the Excise Range, Alappuzha was on patrol duty in the Excise Jeep in which P.W.2 was one among the excise party. When they reached the northern side of the Medical College Hospital, Alappuzha, they came across the accused coming with MO7 big shopper. Getting suspicious when they checked the big shopper in the presence of witnesses it was found to contain 41 bottles of IMFL of the following descriptions:- There were two bottles of 750 ml. with a label Old Port XXX Rum and 5 bottles of the said brand of 375 ml. capacity and and one bottle of 1 litre capacity. Another three bottles each of 750 ml. were bearing the label Columbia XXX Rum. There were 10 other bottles each of 375 ml. with the same label. 20 bottles each of 180 ml. were bearing Royal Army XXX Rum. There were thus altogether 41bottles containing 13.97 litres of IMFL. Crl.Appeal No. 1474 of 2003 -:3:- P.W.1 drew one sample of 200 ml. from one bottle containing 750 ml. of Old Port XXX Rum. He drew another sample of 200 ml. from a bottle containing 750 ml. of Columbia XXX Rum. One of the 20 bottles containing 180 ml. of Royal Army XXX Rum was also taken as sample. P.W.1 sealed all the bottles including the sample bottles and affixed labels on each of them containing his own signature and the signature of the witnesses. He arrested the accusxed and seized the contraband liquor under Ext.P1 seizure mahazar. The accused and the properties together with seizure documents were taken to the Excise Office from where Ext.P2 crime and occurrence report was filed and the case was registered as C.R. 33 of 1999 of the Excise Range, Alappuzha. The properties were produced before the J.F.C.M. I, Alappuzha on 3-9-1999 on which day they were received as T.R. 186 of 1999. Subsequently as per letter dated 17-9-1999 the learned Magistrate forwarded the three sample bottles to the Chemical Examiner 's Laboratory, Thiruvananthapuram. The bottles Crl.Appeal No. 1474 of 2003 -:4:- were subjected to chemical analysis to find that the sample of Old Port XXX Rum was containing 42.06 percent by volume of Ethyl Alcohol, the Columbia XXX Rum sample was containing 42.01 percent by volume of ethyl alcohol and the sample of Royal Army XXX Rum was found to contain 42.12 % by volume of Ethyl Alcohol. Since the samples answered the description of indian made foreign liquor, the accused has committed the offence punishable under Sec. 55 (a) of the Abkari Act as he was carrying IMFL far in excess of 3 litres which is the quantity prescribed under Sections 10 and 13 of the Abkari Act. 5. The learned Public Prosecutor made the following submissions in support of the judgment under Appeal:- The testimony of PWs 1 and 2 clearly shows that the accused was found carrying 41 bottles of IMFL having a total volume of 13.915 litres. The three separate samples taken were produced on the 3[rd] day before the Magistrate and were subsequently forwarded to the Chemical Crl.Appeal No. 1474 of 2003 -:5:- Examiner's Laboratory to find that they contained I.M.F.L. Merely because the sample bottles were not shown as sealed in the property list, it cannot be presumed that they were not sealed by the detecting officer from the scene of detection as deposed by him and as recited in the contemporaneous mahazar prepared by him. It is true that Pws 1, 2 of 5 have not stated about any forwarding note having been filed in Court requesting the forwarding of the three samples to the Chemical Examiner. But, a forwarding note is available in the lower court records and will indicates that samples in sealed bottles were despatched by the Magistrate on 17-9-1999 and the sealed sample bottles were received by the Chemical Examiner on 18-9-1999 and the seals on the bottles were found intact. If so, the accused cannot take advantage of the omission to mention in the property list that the sample bottles were sealed nor about the omission to depose about the filing of the forwarding note etc. 6. I am afraid that I cannot agree with the above Crl.Appeal No. 1474 of 2003 -:6:- submissions. If all the sample bottles were sealed as Pws 1 and 2 deposed and as stated in Ext.P1 mahazar, one would have expected the property list also to contain a description of the sample bottles to the effect that they were sealed. But curiously the property list marked as Ext.P3 does not describe the sample bottles as sealed bottles. If as a matter of fact, those sample bottles were sealed bottles the Magistrate's Court would not have received those bottles unless the property list gave the proper description of the bottles . The properties would have been returned with a direction to give a proper description of the bottles in the property list. That has not been done. Hence, the only logical conclusion to be drawn is that the three sample bottles produced along with the other material objects were not sealed bottles. But the sample bottles which were despatched from the J.F.C.M. I, Alappuzha to the Chemical Examiner, Thiruvananthapuram were sealed bottles. It is not known as to who sealed those sample bottles. The thondi Section clerk who was the Crl.Appeal No. 1474 of 2003 -:7:- custodian of the properties in the Magistrate's Court was not examined to explain those discrepancies. The prosecution can seek a conviction only if it proves that the contents of the 41 bottles allegedly carried by the accused were IMFL. The only mode by which the prosecution seeks to prove the contents is by drawing samples and sending the same to the Chemical Examiner through the Magistrate's Court. With the above descripancy regarding the sample bottles, it cannot be safely said that it was the three samples allegedly drawn by P.W.1 from the three sets of bottles carried by the accused which eventually found their way into the hands of the Chemical Examiner. In other words, the chance of meddling with those samples in the meanwhile, cannot be ruled out. When the samples admittedly changed hands, the prosecution was bound to prove that it was the very same samples which ultimately reached the hands of the Chemical Examiner. (See **State of Rajasthan v. Daulath Ram- AIR 1980 SC 1314 , Sasidharan v. State of Kerala – 2007 (1) KLT 720 and** Crl.Appeal No. 1474 of 2003 -:8:- **Valsala v. State of Kerala - 1993 (2) KLT 550 SC )** . The appellant is certainly entitled to the benefit of the above discrepancy and deficiency in the prosecution evidence. The conviction entered and the sentence passed against the appellant overlooking the above vital aspects cannot be sustained and are accordingly dislodged. The appellant is found not guilty of the offence punishable under Sec. 55 (a) of the Abkari Act and is acquitted thereunder. He shall be set at liberty forthwith. In the result, this appeal is allowed. The amount, if any, deposited before the courts below towards fine shall be refunded to the appellant. Dated this the 17[th] day of September 2009. **Sd/-V. RAMKUMAR, (JUDGE)** /true copy/ ani. Crl.Appeal No. 1474 of 2003 -:9:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.Appeal No. 1474 of 2003 * * * * * * * * * * * * * * * * * * Dated: 17-09-2009 JUDGMENT