N. Haneefa v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 9TH DAY OF OCTOBER 2015/17TH ASWINA, 1937** ## **CRL.A.No. 1150 of 2006 (Y)** **--------------------------AGAINST THE JUDGMENT IN SC 689/2004 of ADDITIONAL SESSIONS COURT (ADHOCI), KASARAGOD** **IN CP 173/2003 OF JUDICIAL FIRST CLASS MAGISTRATE II, HOSDRUG** **APPELLANT(S)/ACCUSED NO.1:** **--------------------------------------------------** **N.HANEEFA, S/O.IBRAHIM, AGED 40 YEARS, NEAR KAPPIL JUMA MASJID, UDUMA VILLAGE.** **BY ADV. SRI.M.RAMESH CHANDER** ## **RESPONDENT(S)/COMPLAINANT AND STATE:** **------------------------------------------------------------------------** **1. THE STATION HOUSE OFFICER, BEKAL POLICE STATION, KASARAGOD.** **2. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. C.K. JAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1150 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 09[th] day of October, 2015 ## **J U D G M E N T** Two persons were sought to be prosecuted for the offence punishable under Section 55(a) of the Abkari Act. Among them, the second accused absconded and the first accused alone stood trial. He was found guilty of the offence alleged against him. Therefore, he was convicted and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of 1 lakh with a default clause₹ of one month. 2. The prosecution case in short is that on 27.01.2002, while PWs 1, 2 and 3 were on patrol duty within their jurisdiction at about 21.30 hrs. when they reached Pallikkara Beach road, they found an autorikshaw going towards Pallikkara Madam. Feeling suspicious, the auto was followed. The autorikshaw later stopped and the prosecution allegation is that the auto driver and another **-2-** ## **Crl.A. No. 1150 of 2006** person abandoned the auto and ran away. However, the Police Officers were successful in apprehending the auto driver though they could not get hold of the other person. PW1 then inspected the two sacks which were kept on the rear platform and each sack was found to contain 500 packets of arrack. Each packet had a capacity of 100 ml. All the packets had identical labels on them and it was seen that they were made in Karnataka. Even though the Police Officer sought for the source of articles, it was not revealed. PW1 took samples of contraband articles and labelled and sealed the same. On the label, he had ensured that signature of PW1, the accused and independent witnesses were affixed. He prepared Ext.P1 seizure mahazar and then the party returned to the Police Station. On reaching the Police Station, crime was registered as per Ext.P2 FIR. The records, articles and the accused were produced before court on 28.01.2002. PW4 took over investigation and he prepared Ext.P3 scene mahazar. The property list prepared ## **Crl.A. No. 1150 of 2006** **-3-** by him is Ext.P4. The forwarding note prepared by him is Ext.P5 and the FSL report is Ext.P6. After completing investigation, he laid charge before court. 3. The court before which the final report was laid, took cognizance of the offence and finding the offence to be exclusively triable by a Court of Sessions, committed the case to Sessions Court, Kasaragod under Section 209 of Cr.P.C. after following the necessary procedures. The said court made over the case to Additional Sessions Court, Adhoc-I, Kasaragod for trial and disposal. 4. The latter court, on receipt of records and appearance of the accused before the said court, framed charge for the offence punishable under Sections 55(a) of the Abkari Act. 5. To the charge the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 6 examined and had Exts.P1 to P6 marked. MOs 1 and 2 were got identified and marked. ## **Crl.A. No. 1150 of 2006** **-4-** 6. After the close of prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He filed a detailed statement in which he stated that on 27.01.2002, at about 9.15 p.m., while he was waiting with his vehicle at the Palakkunnu parking area, a person approached him and hired the auto. When they reached Kottakulam, he asked the vehicle to be taken along right side of the road. The vehicle was taken along that way and when they reached before quarters, the person, who had hired the vehicle, asked him to stop. The person got down and went to a house and returned with two plastic sacks. On enquiry, the first accused was given to understand that the sacks contained husk. The person, who had hired the autorikshaw, wanted to go to Pallikkara. According to the accused, as they were going along, a Police jeep stopped in front of them and he brought out of his autorikshaw to a **-5-** ## **Crl.A. No. 1150 of 2006** halt. The person, who had hired the auto took to his heels and he was chased by the Police Officers. The claim of the first accused that unable to understand what was happening, he stood by the side of his autorikshaw. The police party returned without apprehending the escaped person and then asked A1 about the details of that person. A1 told the Police Officers that he was a stranger to him and he had only hired the autorikshaw. He was asked to mount the Police jeep and asked to show the place from where the autorikshaw had been hired. He did so. When returning from the house from where the sacks were brought by the passenger, A1 heard that the name of person who ran away is Nazar. He was taken to the Bakel Police Station and he was kept there during the night. Since they could not apprehend the real culprit, the case was foisted on him. The accused had a definite case that PW1 was not in the team of officers who detected the offence. He had nothing to do with the contraband articles seized nor the samples taken. ## **Crl.A. No. 1150 of 2006** **-6-** He says that he does not know the second accused and he has no acquaintance with him. He had no clue that the two sacks brought by the passenger contained alcohol. Had he known the same, he would not have allowed it to be kept in his autorikshaw. 7. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. 8. The court below influenced considerably by the evidence of PWs 1, 2 and 3 and Exts. P1 and P6, came to the conclusion that the offence has been made out. The court below also seems to have taken aid of the presumption available under Section 64 of the Act. Thus, the conviction and sentence followed. 9. Assailing the conviction and sentence, the learned counsel for the appellant contended that there is no evidence to show that the appellant was in conscious possession of the contraband article or that he was a privy **-7-** ## **Crl.A. No. 1150 of 2006** to the transporting of the contraband article. According the learned counsel for the appellant, the appellant was only an autorikshaw driver whose auto had been hired by the person who ran away. When the person who ran away brought two sacks to the autorikshaw, he asked him what the sacks contained and the reply given was that it contained husk. The learned counsel for the appellant pointed out that the accused had no way of knowing the contents of the plastic bag and he bonafide believed that what the person told him is true. In his 313 statement, according to the learned counsel, the appellant had pointed out that when the police jeep stopped in front of them, the autorikshaw was brought to a halt and he stood there. The learned counsel pointed out that the claim made by the officers that the driver of the autorikshaw had also run away is false. Relying on the decision reported in **Jawar Arjan** v. **State of Gujarat** (AIR 1979 SC 1500) it was contended that in such cases, the driver of the vehicle cannot be mulcted with liability. The ## **Crl.A. No. 1150 of 2006** **-8-** learned counsel then invited the attention of this Court to the fact that the detection was on 27.01.2002 and the contraband articles are seen produced only on 01.02.2002. There is a delay of four days and it is not explained. It is significant to notice, according to the learned counsel, that the arrest memo is also not produced. To add to the worry of the prosecution, a forwarding note produced before the court below does not contain the specimen seal also. For the proposition that delay is fatal, the learned counsel relied on the decision reported in **Ramankutty** v. **Excise Inspector, Chelannur Range** (2013 (3) KHC 308) and for the proposition that non furnishing of seal in the forwarding note produced before court, the prosecution may have to fail, the learned counsel relied on the decision reported in **Krishnan** v. **State** (2015 (2) KLT SN 8). Thus, according to the learned counsel, viewed from any angle, the conviction and sentence cannot stand. **Crl.A. No. 1150 of 2006** **-9-** 10. The learned Public Prosecutor on the other hand contended that the evidence is so clinching and cogent that there is no escape for the appellant. His claim that he stood by the autorikshaw is totally false as could be seen from the evidence of PWs 1 to 3. All the three of them, who were in the detecting squad, say that as soon as the Police Jeep came in front of the autorikshaw, the autorikshaw stopped and both the driver and the passenger ran away from the place. The Police Officers chased them and they were successful in apprehending the auto driver, who is the first accused. According to the learned Public Prosecutor, the conduct of the accused in running away from the place seeing the Police speaks volumes about his complicity in the matter. His claim in 313 statement that he stood near the auto is a clear afterthought. The learned Public Prosecutor pointed out that there was no suggestion to PWs 1 to 3 that the claim made by them that he had run away from the place is totally false and he had stood nearby the ## **Crl.A. No. 1150 of 2006** **-10-** autorikshaw itself. It is therefore clear that he had a part to play in the incident. The learned Public Prosecutor also pointed out that the prompt production of some of the documents and the accused on the very next day itself before court further fortifies the prosecution case. Further, according to the learned Public Prosecutor, there is nothing to show that the Police Officers had any ill will or oblique motive in implicating the first accused. The lower court has analyzed the evidence in considerable detail and has come to the conclusion that the offence is made out. This Court, exercising its appellate jurisdiction, may not be justified in interfering with the said finding. Hence, the appeal is only to be dismissed. 11. It is true that PWs 1 to 3, the Police Officers, who had gone on patrol duty, say about the incident. PW1 is the Sub Inspector of Police, PW2 is a constable and PW3 claims to be an Additional Sub Inspector. All the three of them say that on locating the autorikshaw and intercepting the same, ## **Crl.A. No. 1150 of 2006** **-11-** the auto was brought to a halt and both the driver and the passenger of the auto took to their heels and they were chased and the Police team was successful in holding and apprehending the auto driver, who is the first accused. They then say about having inspected the two plastic sacks kept on the floor of the autorikshaw in the rear portion and say that each contained about 500 packets of 100 ml each Karnataka Made Arrack. PW1 speaks about the sampling done by him and the arrest effected by him and also after returning to the Police Station, he registered crime. PW4 is the Investigating Officer. He speaks about having prepared the scene mahazar, forwarding note etc.. 12. If the evidence of PWs 1 to 3 is found to be acceptable, cogent and convincing, then there is no reason as to why the court should discard the prosecution case. In the case on hand, the lower court did exactly the same thing and after having analyzed their evidence taken along with the contemporaneous documents and prompt production of **-12-** ## **Crl.A. No. 1150 of 2006** them before court, was impressed with the prosecution case and found the accused guilty. 13. First of the contention that the accused was an innocent auto driver and on the basis of the decision cited namely **Jawar Arjan** v. **State of Gujarat** (AIR 1979 SC 1500) he is entitled to be acquitted, cannot be countenanced. PWs 1 to 3 had uniformly and consistently stated that the autorikshaw driver and the passenger both ran away and they were chased. The auto driver was apprehended. There is no suggestion to these witnesses, as rightly pointed out by the learned Public Prosecutor, that the claim made by them that the auto driver i.e., the first accused had not run away from the place and had stood by the auto. The projection of such a case at the 313 statement can therefore be treated only as an afterthought. This contention has necessarily to fail. 14. However, the fact remains that the arrest memo is not seen produced and the seized articles are seen produced ## **Crl.A. No. 1150 of 2006** **-13-** before court on 01.02.2002. i.e. four days after the incident. Under such circumstances, the consequences that follow has been considered in the decision reported in **Ramankutty** v. **Excise Inspector, Chelannur Range** (2013 (3) KHC 308) wherein, it was held that unexplained delay in producing the contraband before the court after seizure is fatal to prosecution case. 15. In the case on hand, going by the documents, the FIR, the seizure mahazar seem to have been produced before court on 28.01.2002 itself. But surprisingly enough, the property list which show the properties that were sent over to the court is seen to have been received on court on 01.02.2002 i.e. nearly four days after the date of incident. No explanation is offered to the non production of the articles till then. As already noticed, the arrest memo was also not produced. The principle laid down in the decision referred to above applies with all force to the facts of the case. **Crl.A. No. 1150 of 2006** **-14-** 16. Apart from the above aspect, there is yet another glaring infirmity. Ext.P5 is the forwarding note. That does not contain the sample seal. The significant and necessity for the officers concerned to show the sample seal in the copy produced before court was highlighted in the decision reported in **Krishnan** v. **State** (2015 (2) KLT SN 8) wherein, it was held as follows: “Ext.P5 is a copy of the Forwarding Note submitted before the court for sending sample for subjecting it to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P5. Whether the sample seal was affixed on the original of Ext.P5 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P5, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of the **-15-** ## **Crl.A. No. 1150 of 2006** Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, the details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal is not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution.” Obviously, in the light of the two decisions referred to above, the appellant is entitled to succeed in this case. For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below is set aside and it is held that the prosecution has not succeeded in establishing the case against the accused. He stands acquitted of the charges levelled against him. His bail bond shall stand cancelled and he is set at liberty. If the appellant had deposited any amount, in pursuance to the order of this ## **Crl.A. No. 1150 of 2006** **-16-** Court, the same shall be refunded on proper application being made. Sd/- **P.BHAVADASAN JUDGE** ds //True copy// P.A. to Judge