P. Balan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** **Crl.Rev.Pet.No.86 OF 2011** **AGAINST THE JUDGMENT IN CRA 583/2005 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, THALASSERY IN SC 498/2002 ON THE FILE OF THE PRINCIPAL ASSISTANT SESSIONS JUDGE, THALASSERY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **P.BALAN, S/O.KANNAN AGED 48 YEARS, PILATHARAMMEL HOUSE, KOLAVALLUR AMSOM DESOM.** **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENTS/COMPLAINANT AND STATE:** - **1 STATION HOUSE OFFICER, KOLAVALLUR POLICE STATION, KANNUR DISTRICT, PIN-670531.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **SRI.SANTHOSH PETER, SR.PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22.06.2020, THE COURT ON 24.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.86/2011 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.86 of 2011 --------------------------------------------Dated this the 24[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.498/2002 on the file of the Court of the Assistant Sessions Judge,Thalassery. 2. The prosecution case is that, on 05.01.2001, at about 09.30 hours, at the public road in front of Nalanda College at the place Parat, PW1 Sub Inspector found the petitioner having in his possession a plastic cover which contained six bottles of Indian Made Foreign Liquor (for short 'IMFL'), each bottle having the capacity of 180 ml. 3. The trial court framed charge against the petitioner for the offence punishable under Section 55(a) of the Abkari Act. The petitioner pleaded not guilty to the offence and claimed to be tried. Crl.R.P.No.86/2011 3 4. The prosecution examined PW1 to PW5 and marked Exts.P1 to P6 documents and MO1 series to MO4 material objects. No evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one year. 6. The petitioner filed Crl.A.No.583/2005 before the Court of Session, Thalassery challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction against the petitioner but modified the sentence imposed on him by the trial court to rigorous imprisonment for a period of one year and fine of Rs.1,00,000/- and in default of payment of fine, simple imprisonment for a period of one month. 7. The concurrent verdicts of guilty and conviction recorded against him by the courts below and the sentence Crl.R.P.No.86/2011 4 imposed on him by the appellate court are challenged by the accused in this revision petition. 8. Heard learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records. 9. PW1 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. 10. PW2 and PW3 are the independent witnesses examined by the prosecution. They denied having seen the incident. But, they admitted their signature in Ext.P2 seizure mahazar. 11. Ext.P6 is the chemical examination report in respect of the samples of liquid which were sent for analysis. It shows that the samples of liquid contained 42.33% and 42.44% by volume of ethyl alcohol. 12. Learned counsel for the petitioner has challenged the conviction against the petitioner on the following grounds: (1) The solitary evidence of PW1, the detecting officer, regarding the seizure of liquor from the possession of the petitioner, cannot be accepted as reliable and trustworthy. (2) The quantity of Crl.R.P.No.86/2011 5 Indian Made Foreign Liquor allegedly found in the possession of the petitioner was only 1.080 litres and it was within the permissible limit. 13. PW1 Sub Inspector has given evidence that, on 05.01.2001, while he was conducting patrol duty with police party and when he reached the road in front of Nalanda College near Parat Junction, he saw the accused standing at the side of the road with a plastic cover in his hand. PW1 has also given evidence that he examined the contents of the cover held by the accused and he found six bottles of IMFL of 180 ml. capacity in it. PW1 has also stated that he arrested the accused and took samples and he seized the liquor as per Ext.P2 mahazar. 14. It is trite that when the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence. It is for the accused, through cross-examination or through any other materials, to show that the evidence of the official witnesses is either unreliable or at least unsafe to be acted upon. There is no legal proposition that evidence of official witnesses unless Crl.R.P.No.86/2011 6 supported by independent evidence is unworthy of acceptance. Evidence of police or excise officers cannot be discarded merely on the ground of their desire to see the success of the case. However, prudence requires that the evidence of such officers, who are interested in the outcome of the result of the case, shall be carefully scrutinized and independently appreciated. If the testimony of an official witness is found reliable and trustworthy, the court can definitely act upon the same. Credibility of a witness has to be tested on the touchstone of truthfulness and trustworthiness. It is not the law that official witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by the testimony of independent witnesses. Evidence of such officers must be considered on its own merits and its own inherent improbabilities. 15. In the instant case, PW1 has not given evidence that he sealed the bottles containing the sample at the spot of the occurrence or that he affixed any label on the sample bottles. Of course, the description of the sample bottles given in Ext.P2 Crl.R.P.No.86/2011 7 seizure mahazar, the contemporaneous document prepared by PW1 at the spot of the occurrence, would show that they were sealed and labelled. But, substantive evidence is the statement of the witness made before the court. The recitals in Ext.P2 mahazar can be used only to corroborate the oral evidence of the witness. 16. Ext.P3 is the arrest memo prepared by PW1 at the spot of the occurrence. It does not contain the signature of the petitioner, who is the arrestee. This creates doubt as to whether the petitioner was arrested from the spot of the occurrence as testified by PW1. 17. It is stated in Ext.P3 arrest memo that the petitioner was arrested on 05.01.2001. However, the time of arrest is not mentioned in Ext.P3 arrest memo. On returning to the police station from the spot of the occurrence, PW1 had registered Ext.P7 F.I.R. The F.I.R was registered at 12:30 hours on 05.01.2001. The petitioner was allegedly arrested at the spot of the occurrence at 09:45 hours on that day. However, Ext.P3 arrest memo contains the crime number of the case which was Crl.R.P.No.86/2011 8 registered by PW1 subsequent to the alleged arrest of the petitioner. This also creates suspicion as to whether the occurrence had taken place in the manner spoken to by PW1. 18. PW1 has given evidence that he produced the properties before the court. The property list, which should have been prepared by him for that purpose, has not been marked. Therefore, there is no evidence to find that the samples produced before the court were in a sealed condition. 19. PW5 Sub Inspector, who conducted the investigation of the case, has given evidence that he prepared Ext.P5 forwarding note for sending the samples for analysis and submitted it before the court. But, Ext.P5 is not the copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis. It is only a report submitted by him before the court praying that the samples may be forwarded to the laboratory for analysis. It does not contain the description of the samples. There is no document in evidence before the court to ascertain the nature and condition of the samples which were sent for analysis from the court. Crl.R.P.No.86/2011 9 ## 20. In **Vijay Pandey v. State of Uttar Pradesh : AIR** ## **2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be corelated"._ 21. In the instant case, there is no assurance that the very same samples allegedly taken by PW1 at the spot of the occurrence were produced before the court and the very same samples were forwarded for analysis. It follows that there is also no assurance that Ext.P6 chemical analysis report relates to the samples allegedly drawn by PW1 at the spot of the occurrence, from the liquid allegedly seized from the possession of the accused. 22. At the time of the alleged occurrence, the permissible quantity of IMFL, which a person could have possessed without any permit, was 1.500 litres. The IMFL allegedly seized from the Crl.R.P.No.86/2011 10 possession of the petitioner was only 1.080 litres. No evidence has been given by PW1 that the liquor seized from the possession of the petitioner was illegally imported, transported or manufactured. There is no evidence to find that the petitioner himself had brought the liquour from another State into Kerala. There is no evidence to find that the hologram of the Kerala State Beverages Corporation was absent on the bottles of liquor seized from the possession of the petitioner. In such circumstances, even if it is found that 1.080 litres of IMFL was seized from the possession of the petitioner, in the absence of any evidence to find that he was found in possession of such liquor in the course of illegal import or transport, he cannot be convicted for an offence punishable under Section 55(a) of the Abkari Act. 23. The above mentioned vital aspects have not been considered by the courts below while appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the petitioner/accused by the courts below cannot be sustained. The petitioner/accused is entitled to be acquitted. Crl.R.P.No.86/2011 11 24. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused for the offence punishable under Section 55(a) of the Abkari Act is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. **==> picture [39 x 13] intentionally omitted <==** **R.NARAYANA PISHARADI, JUDGE** jsr ## **True Copy** **PS to Judge**