P. R. Muraleedharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942** ## **CRL.A.No.734 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 12/2003 OF ADDITIONAL DISTRICT COURT(ADHOC 2), THRISSUR** ## **APPELLANT/ACCUSED No.2:** **P.R.MURALEEDHARAN S/O.RAGHAVAN, PARATHALA HOUSE,, LALUS ROAD, THRISSUR.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/COMPLAINANT/STATE :** **STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, (CR.NO. 5/2000 OF EXCISE RANGE,, KODUNGALLUR).** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.734 of 2005 2 ## **JUDGMENT** **Dated this the 13[th] day of November, 2020** **The appellant is the second accused in S.C. No.12/2003 on the file of the Additional Sessions Judge, Fast Track Court-II, (Adhoc), Thrissur.** **2. The above case is chargesheeted by PW8 against the appellant and another alleging offences punishable under Sections 55 (a) and (i) and 56(b) of the Kerala Abkari Act. 3. The prosecution case is that under the directions of the Deputy Excise Commissioner, Central Zone, an excise party comprising Circle Inspector of Excise Enforcement and Anti Narcotic Special Squad, Thrissur, Excise Inspector and Preventive Officers including PW2 conducted an inspection of Kairali Bar Hotel, S.N.Puram, Kodungallur within Kodungallur Excise Range on 12.10.2000 at 8.30 p.m. On inspection, the inspection party found a room kept closed in front of the store room near to the kitchen. When the room was inspected, they could found 451 bottles of Indian Made Foreign liquor without security labels of Kerala State Beverages Corporation. There were three types of foreign** Crl.Appeal No.734 of 2005 3 **liquor found kept in 33 hard board boxes. They were 'Honey Bee Brandy', 'Sonia Brandy' and 'Jumbo xxx Rum'. All the three brands of liquor contained in 750 ml. bottles and 375 ml., bottles. According to the prosecution, altogether there were 281.25 litres of Indian made foreign liquor. The case of the prosecution is that the accused were in possession of the same without any authority.** **4. To substantiate the case, the prosecution examined PW1 to PW8. Exts.P1 to P14 were also marked. Exts.D1 to D4 are also marked on the side of the defence. M.O.1 to M.O.6 are the material objects. After going through the evidence and documents, the trial court found that the first accused is not guilty and he was acquitted under Section 235 (1) Cr.P.C. Whereas the second accused who is the appellant in this case was found guilty under Sections 58, 55 (i) and 56(b)of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for six months under Section 55(i) of the Abkari Act. No separate punishment is imposed for the offence under Section 58 of the Abkari Act. The second accused is** Crl.Appeal No.734 of 2005 4 **sentence to pay a fine of Rs.2,000/ for the offence under Section 56(b) of the Abkari Act. In default of payment of fine, the second accused is directed to undergo simple imprisonment for one month. Aggrieved by the conviction and sentence, this Crl.Appeal is filed.** **5. Heard the counsel for the appellant and the learned Public Prosecutor.** **6. The counsel for the appellant submitted that even if the entire allegations are accepted no offence under Sections 55(i), 58 and Section 56 (b) of the Abkari Act are made out. The counsel submitted that the sentence that can be imposed for an offence under Section 55(a) and 58 of the Abkari Act are one and the same. The trial court found that the accused is found not guilty under Section 55(a) of the Abkari Act. In such situation, the accused cannot be convicted under Section 58 without a court charge because the offence under Section 58 of Abkari Act is not a minor offence compared to the offence under Section 55 (a) of the Act. The counsel also submitted that absolutely no evidence is there to show that, there is sale of the liquor and therefore, the offence under Section 55 (i) of the Act is also not made out. The counsel submitted that as far as** Crl.Appeal No.734 of 2005 5 **the second accused is concerned, he is convicted based on Ext.P16 Power of Attorney. The counsel submitted that the Power of Attorney is not proved in a manner known to law. In addition to all, the counsel submitted that the forwarding note is not marked in this case. Therefore, the counsel submitted that there is no evidence produced by the prosecution to prove that the seized articles reached in the hands of the analyst. It is also contended by the counsel that there are two accused in this case and the prosecution witnesses had not identified these two accused from the dock. The counsel relied on the judgment of this Court in Sadasivan @ Para Vs. State of Kerala and another (2020 KHC 478). The counsel submitted that the accused is entitled the benefit of doubt in this case.** **7. The Public Prosecutor submitted that the trial court after considering the entire oral and documentary evidence came to the conclusion that the accused committed the offences under Sections 58, 55(i) and 56(b) of the Abkari Act. The Public Prosecutor submitted that in this case, huge quantity of illicit liquor is seized from the bar hotel. Therefore, this Court may not interfere with the conviction and sentence imposed on the appellants on** Crl.Appeal No.734 of 2005 6 **technical ground. The Public Prosecutor submitted that there is adequate oral and documentary evidence to prove the offences.** **8. The point for consideration in this case is whether the accused committed the offences under Sections** ## **58, 55(i) and 56 (b) of the Abkari Act.** **9. One of the point raised by the counsel is that no forwarding note is marked in this case. The counsel submitted that the prosecution case is that illicit liquor is seized from the Bar Hotel. Therefore, it is the duty of the prosecution to prove that the seized articles reached the hands of the analyst. The counsel also submitted that there is no evidence to show that who took the sample. The counsel relied on the judgment of this Court in Lalitha Vs.State of Kerala (2012 (1) KHC 554). The relevant** ## **paragraph of the above judgment is extracted hereunder.** **“7. None of the witnesses has got a case that they had taken any sample from MO1 or that the sample was forwarded to the Chemical Examiner. However, in coming to a conclusion against the appellant, the learned Additional Sessions Judge had given reliance to Ext.P4 report of the Joint Chemical Examiner to the Government of Kerala wherein it is certified that she had received one bottle containing 180ml of clear and colourless liquid alleged to be arrack involved in this case and on** Crl.Appeal No.734 of 2005 7 **examination it was found that the sample contained 38.36% by volume of Ethyl Alcohol. The evidence on record didn't disclose as to who took the sample. There is no case that either PWs 2, 3, 4 or 5 had taken any sample. That being so, it seems to be a mystery as to who took the sample. Therefore, no reliance can be given to the report of the Chemical Examiner to conclude that the liquid contained in MO1 is arrack. Such being the materials on record, I find that it is not safe to sustain the conviction. The learned Government Pleader submitted that PWs 2 and 4 had satisfied that the liquid contained in the bottle is arrack by smell and taste. It is only their observation about the liquid. The suggestion in cross examination to PW2 is that possession of Indian Made Foreign Liquor upto a quantity of 1.5 litres is permissible as on the date of seizure. The possibility for the liquid being Indian Made Foreign Liquor cannot also be ruled out. In the above circumstance, I find that the conviction under challenge is not sustainable”** **10. I see some force in the argument of the counsel** **relying the above judgment. Admittedly, the detecting officer is not examined in this case. The other officers who accompanied the detecting officer has no case that who exactly took the sample for analysis. In such circumstances in the light of the above judgment, I think the accused is entitled the benefit of doubt.** **11. It is an admitted case of the prosecution that the illicit liquor is seized from the bar hotel. In such** Crl.Appeal No.734 of 2005 8 **situation, it is the duty of the prosecution to prove all links stating from seizure till it reach in the hands of the analyst. The forwarding note is a vital link in such situation. This Court in Sadasivan's case (supra) held like this.** **“11. Admittedly, the forwarding note is not marked in this case. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it.It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases.** **12. This court, in several decisions considered the relevancy of the forwarding note. Some of the decisions are Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814) and Prakasan and another v. State of Kerala (2016 KHC 96). The relevant portion of the judgment in Gireesh's case (supra) extracted hereunder:** **“14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the** Crl.Appeal No.734 of 2005 9 **samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).”** **13. In the light of the above authoritative judgments, it is clear that the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting the accused.”** **12. Moreover, the counsel for the appellant also** **submitted that there are two accused in this case. The witnesses had not identified these accused from the dock. The counsel relied the Sadasivan's case (supra) itself that in such situation, the accused is entitled the benefit of doubt. The relevant paragraphs (paragraphs 15,16 & 17) in Sadasivan's case is extracted hereunder.** **“15. In addition to this, the learned counsel for the appellant submitted that PW2 and PW3 has not identified the accused from the dock. The counsel relied the judgment of this Court in Mohammed v. State of Kerala (2002 KHC 969) and Vayalali Girishan and others v. State of** Crl.Appeal No.734 of 2005 10 **Kerala (2016 KHC 204). The relevant portion of the judgment in Mohammed's case is extracted hereunder:** **“The depositions should either have included a specific endorsement by the Judge that the accused in the dock was identified by the witness or that the answer regarding identification was made pointing towards the accused in the dock or some other indication that the witness has identified the person available in the box as the perpetrator of the crime about which the witness is deposing before court. This is so because it is essential in a criminal trial, that the identity of the person who faces the trial as the perpetrator of the crime is established. For this to be achieved the witnesses to the transaction in question should specifically certify the identity of the person in the dock as the person available at the scene of occurrence, if at all the prosecution case is that the presence of the accused at the scene of occurrence was witnessed by the particular witness. This aspect was highlighted by this court in some earlier judgments; but notwithstanding this even special courts which try cases involving very high punishment do not appear to give sufficient attention to this important aspect. The position is hereby reiterated for strict compliance by the subordinate courts.”** **16. The relevant portion in Vayalali Girishan's case (supra) is extracted hereunder:** **“We are unable to discern for certain as to whether the witness was referring to the particular accused whose name finds a place in the charge or to some other person. Obviously the witness will not be aware of the rank number of the person standing in the dock in the array of the accused. There is absolutely no clue available** Crl.Appeal No.734 of 2005 11 **from the deposition either, as the court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. The Apex Court as well as this Court, time and again, have reminded the trial Courts, the importance of recording in the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude.”** **17. Admittedly, in this case, PW2 and PW3 have not identified the accused from the dock. No such endorsement to that effect by the trial judge also. The learned Public Prosecutor vehemently argued that the identity of the accused is not disputed in the trial. But in the above judgments, this court observed that it is the duty of the prosecution to see that the witness identifies the accused from the dock at the time of trial. In the light of the above judgments, I think, the accused is entitled to the benefit of doubt on this ground also.”** **13. I think, on this account also, the accused is entitled the benefit of doubt. In the light of the above findings, I think the appellant is entitled the benefit of doubt.** **Therefore, the Crl.Appeal is allowed. The** **conviction and sentence imposed on the appellants as per judgment dated 4.4.2005 in S.C. No. 12/2003 on the file of** Crl.Appeal No.734 of 2005 12 **the Additional Sessions Judge, Fast Track Court-II, (Adhoc), Thrissur is set aside.The accused is set at liberty and the bail bond if any, executed by him is cancelled.** **Sd/P.V.KUNHIKRISHNAN JUDGE** **Al/-+**