Omana v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 07TH DAY OF JANUARY 2019 / 8TH KARTHIKA, 1940** ## **CRL.A.No. 1393 of 2006** **AGAINST THE CONVICTION AND SENTENCE IMPOSED ON THE APPELLANT AS PER THE JUDGMENT DATED 15.06.2006 IN SESSIONS CASE NO.138/2001 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA** **APPELLANT/ ACCUSED :** **OMANA, AGED 44 YEARS, D/O.ROSAMMA, THAVAYATHUKKONAM MEKKEKARA PUTHEN VEEDU, CHAVADI NADA, KUNNATHUKAL DESOM, NEYYATTINKARA TALUK.** **BY ADVS. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU** **RESPONDENT :** **STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, AMARAVILA RANGE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.SWAMIDASAN K.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2018, THE COURT ON 07.01.2019 PASSED THE FOLLOWING :** **CRL.A.No. 1393 of 2006** 2 ## **JUDGMENT** The appellant is the sole accused in SC.No.138/2001 on the file of the Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara. Crime No.1/1998 of Excise Range, Amaravila was charge sheeted by the Excise Inspector, Amaravila for offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 28.01.1998, while the Preventive Officer of Amaravila Excise Range was conducting patrol duty, the appellant was found in front of the Vayanasala at KunnathukalPaliyodu Road coming to the direction of Excise party with a black jerry Can of 2 ½ litres' capacity, which on examination was found to contain 2 litres of arrack, in which she possessed in contravention of the provisions of the Abkari Act. The thondi article was seized and the accused was arrested and the case registered under Section 55(a) of the Abkari Act. 3. The court below found the appellant guilty under Section 58 of the Abkari Act and sentenced to **CRL.A.No. 1393 of 2006** 3 undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for 3 months. 4. On the side of prosecution, six witnesses were examined as PW1 to PW6 and Exts.P1 to P7 and MO1 were marked. PWs 1 and 2 are attestors to the seizure mahazar, who did not support prosecution. PWs 3 to 5 are Excise officials, whose evidence was relied on by the court below. PW6 is the thondi section clerk of concerned Magistrate Court. 5. According to the appellant, the judgment of the court below, convicting and sentencing the appellant is illegal. The prosecution has failed to prove the possession of illicit arrack by the appellant on the basis of legal evidence. The independent witnesses, who were examined as PW1 and PW2 did not support the case of the prosecution and the lower court has relied on PW3 and PW4, the official witnesses for convicting the accused/ appellant herein. The lower court ought to have found that MO1 was not properly sealed and the sample was taken after a lapse of more than two months and the bottle used for taking the sample did not confirm to **CRL.A.No. 1393 of 2006** 4 the standard prescribed which renders the analysis report incredible and unacceptable and the same cannot be acted upon. PW5 has not conducted a fair investigation in this case. So, the appellant has prayed for setting aside the conviction and sentence imposed on the appellant as per the judgment dated 15.06.2006 in SC.No.138/2001 on the files of the Additional Sessions judge for the Trial of Abkari Act Cases, Neyyattinkara. 6. The prosecution case is that the appellant was found in possession of 2.5 litres of arrack and she was intercepted by the Excise party on 28.01.1998 and the contraband articles were seized from her possession and thereafter she was arrested. PWs 1 and 2 are attestors to the seizure mahazar, who did not support the prosecution case. But, they refused to identify the signature on Ext.P1 to be theirs. Even during cross examination, nothing was brought out to the credit of the prosecution. So, they were declared as hostile to the prosecution. PWs 3, 4 and 5 are the Excise Officials. PW3 is the Preventive Officer of Excise Circle Office, Neyyattinkara, who accompanied PW4, who was the Detecting Officer in the patrolling **CRL.A.No. 1393 of 2006** 5 party. PW5 investigated the case and laid the charge sheet before the court. The main attack by the appellant's counsel on the fact that the independent witness PW1 and PW4 were turned hostile to the prosecution and the testimony of PWs 2, 3 and 5 cannot be accepted as they are official witnesses, who is alleged to have detected the offence and filed charge sheet before the court. 7. It has held in _**Sivaraman v. State of**_ _**Kerala [1981 KLT SN 17.P.9]**_ by this Court that “the failure of the attesting witnesses to the Seizure Mahazar to recollect their former statements given to the police or their resiling from that statement does not prevent the Court from acting upon the testimony of the official witness, if it is found reliable and believable”. In this case, PW3 has given evidence to the effect that he, along with other Excise party reached the place of occurrence. He has found the appellant lady coming with MO1 Can with illicit arrack of a quantity of about 2 litres. Immediately, she was intercepted on the spot. After verification of the liquid, it was found that 'MO1 Can' contained illicit arrack and it was seized by PW4 from the possession of **CRL.A.No. 1393 of 2006** 6 the appellant. He has also given evidence to the effect that Ext.P1 mahazar contain his signature. He has also identified the appellant/ accused, who has arrested from the spot and also identified MO1 Can (empty and broken Can) which was produced before this Court (vide report) and he was thoroughly cross examined by the learned counsel for the defence. But nothing was brought to disbelieve the version of PW4. PW4 is the detecting officer, who has given evidence corroborating the version of PW3 in all material fact touching the occurrence and asserting that the appellant was keeping MO1 in her possession and immediately, she was arrested along with MO1 prepared by Ext.P1 seizure mahazar. He identified Ext.P1 seizure mahazar as well as Ext.P2 arrest memo and MO1 Can produced before this court. Even though he was cross examined strenuously, nothing was brought out to disbelieve his version also. So PWs 3 and 4 are the occurrent witnesses. 8. Apart from that, PW5, the person, who laid charge was examined and he has also deposed that appellant/ accused and MO1 Can with liquid were produced before him and he registered Crime No.1/1998 **CRL.A.No. 1393 of 2006** 7 and the Crime and Occurrence Report was prepared by him, which was marked as Ext.P3. Thereafter, he prepared thondi list, which was identified and marked as Ext.P4. The date of detection was on 28.01.1998 and thondi list was produced before the court on the same day itself as evident from Ext.P4 thondi list, along with the requisition for the purpose of sending sample of the liquid in MO1. The thondi items produced before the lower court is assigned to the thondi register as T 12/98. Ext.P6 is the Chemical Analysis Report and Ext.P5 is the remand report prepared by PW5. He has also identified the appellant as well as MO1 thondi items produced before the lower court. The lower court has relied upon the evidence of PWs 3, 4 and 5 and found that their evidence is found to be trustworthy and acceptable and I do not find any ground to disbelieve the evidence of official witnesses, who are the occurrent witnesses and the charging officer. 9. Now the next question to be considered is whether the sample which was taken at the instance of thondi clerk was acceptable or not. PW6 is the thondi clerk of the concerned Magistrate Court. According to **CRL.A.No. 1393 of 2006** 8 her, she has accepted the thondi items as per Ext.P4 thondi list and this fact has been entered in the thondi list in her handwriting and he identified the thondi list as Ext.P7. 10. Now it is very peculiar to note that the thondi clerk has extracted the sample out of the liquid contained in MO1 Can mentioned in Ext.P7 and handed over it to the concerned for delivering it to the examiner for which there is endorsement in Ext.P7. Now the relevant fact to be noted herein is that the MO1 Can was produced before the court, alleged to have seized from the possession of the appellant/ accused and nowhere it was stated that the Can was properly sealed by affixing a label containing the signature of the detecting officer, the witnesses and the appellant/ accused. It was found that MO1 Can was produced before the court and it was received by the thondi clerk, who was examined as PW6. As per the evidence of PW6, she has extracted the sample from MO1 Can, sealed it and sent it for chemical analysis. So, the genuinety of the sampling is to be doubted and even though MO1 Can was produced before the court below, there is absolutely no evidence before the **CRL.A.No. 1393 of 2006** 9 court that the sample was taken from MO1 Can. If the sample was taken in the presence of the appellant by getting her signature on the sample or the label affixed on the sample with the signature of the appellant, detecting officer and independent witnesses that can be accepted as a true sample alleged to have seized from the possession of the appellant. 11. Now there is no evidence before the court to show that the sample was taken from MO1 Can and actually PW6 alone has taken the liquid out of MO1 Can, sealed it and sent it for chemical analysis. This is not a proper way of sampling. 12. In fact, in this case, the punishment is up to 10 years and the fine is 1,00,000/-. If that be so, the prosecution has to establish the facts before the court that the alleged contraband articles were directly seized from the possession of the appellant. In fact, PW4 had not given any evidence to prove that this sample contained a label with the signature of the appellant/ accused, detecting officer or the independent witnesses and also there is no evidence to the effect that MO1 Can contained a label with the signature of the appellant, detecting **CRL.A.No. 1393 of 2006** 10 officer and the independent witnesses. It is true that PWs 1 and 2 have given evidence to the effect that they have subscribed their signature in Ext.P1 seizure mahazar alone. So the alleged seizure of the contraband articles from the possession of the appellant is disproved by the evidence of the prosecution itself and on this ground itself, the appellant is entitled to get acquittal. In fact, no forwarding note has been produced with the sample seal. It is very interesting to note that the sample seal was not obtained and produced before the court below because the sample was taken by PW6, the thondi clerk itself. That also shows that the sample was not taken at the instance of the appellant and there is absolutely no evidence to prove that the alleged MO1 Can with the contents inside was produced before the court was tamper proof. 13. Therefore I find that there is no fair investigation in this case and the sample was not taken in the presence of the appellant. Even though the Chemical Analysis Report shows that the contraband articles contained 22.82% volume of Ethyl Alcohol, which is illicit liquid, that will not, in any way **CRL.A.No. 1393 of 2006** **==> picture [12 x 8] intentionally omitted <==** connect the appellant to have done the alleged offence. Therefore, I find that the prosecution has miserably failed to establish the guilt on the appellant/ accused herein. Therefore, she is entitled to get acquittal as prayed for. **==> picture [352 x 12] intentionally omitted <==** conviction and sentence imposed on the appellant in S.C.No.138/2011 on the file of the Additional Sessions Judge for the trial of Abkari Act Case, Neyyattinkara is hereby set aside. She is set at liberty forthwith. The bail bond, if any executed, shall stand cancelled. Sd/- **ANNIE JOHN, JUDGE** RKM