Prakash S/o Thankappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 28TH DAY OF SEPTEMBER 2020 / 6TH ASWINA, 1942** ## **CRL.A.No.1039 OF 2005** **AGAINST THE JUDGMENT IN SC 144/2004 OF ADDITIONAL DISTRICT COURT (ADHOC-1), THODUPUZHA** ## **APPELLANT/ACCUSED NO.1:** **PRAKASH S/O. THANKAPPAN, NOOROMACKAL HOUSE, KOTTIYOOR VILLAGE,, KELABHAM TALUK, KANNUR (NOW RESIDING AT THE HOUSE OF URUMBIL SALI PUSHPAGIRI KARA).** **BY ADVS. SRI.S.VIJAYAKUMAR (NALLOOR) SRI.M.T.SURESHKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.MAYA M.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-09-2020, THE COURT ON 28-09-2020 DELIVERED THE FOLLOWING:** Crl.A.1039/05 :2: ## **JUDGMENT** This is an appeal preferred under Section 374(2) of the Criminal Procedure Code, hereinafter referred to as the Code, challenging the legality and correctness of the judgment passed by the learned Additional Sessions Judge, Fast Track (Ad hoc-I), Thodupuzha in S.C.No.144/2004 dated 04.06.2005. The prosecution allegation can be summarised as follows: On 10.02.2003, CW1 Sub Inspector of Police, Murikkassery and party were on night patrol duty; at 11.00 P.M. while they were standing at the junction at Perunthotti, a jeep bearing No.KL-7/M-7110 came from Prakash area to Thopramkudi in a high speed. When the Sub Inspector signalled to stop the vehicle, that was not obeyed and the vehicle proceeded towards Perunthottikkara. The Sub Inspector and party chased the vehicle in their jeep, but it did not stop, then it turned right from Perunthottikkara junction towards Marygiri road. After about 2kms, at Thankamani village in Marygiri kara, it again turned towards Kuppachampadi area and stopped at the courtyard of the residence of CW4 Crl.A.1039/05 :3: with house No.III/180 of Kamakshi panchayat. On the way the police party could see that some liquid stocked in the jeep was poured out from the containers and then they could smell that they were transporting illicit arrack. At the courtyard of the said house, when the jeep stopped, other persons who were travelling in the jeep, except accused No.1, accused Nos.2 to 5, got out of the vehicle and ran away and they could not be arrested. But the first accused, the driver of the jeep, was arrested from the spot; they could see two big plastic cans of 25 ltrs. and 10 ltrs. In the first can, i.e. 25 ltrs capacity, there was arrack of about 3 ltrs. and in the 10 ltr. can also some arrack could be detected, from which samples were collected. The first accused was arrested from the spot and the items including the jeep were seized under a mahazar and the police party went back to the police station and crime 19/2003 was registered suo motu, by the Sub Inspector. 2. There were 8 accused in the charge sheet. The allegation is that the arrack carried by accused 1 to 5 in the jeep were collected from accused Nos.6 and 7, that it was transported in the said jeep for the purpose of sale to the 8[th] accused. The allegation against accused Nos.1 to 5 is that Crl.A.1039/05 :4: they had illegally carried arrack with them and thus offence punishable under Section 8(1) and (2) of the Abkari Act was alleged against them. 3. On completion of investigation, the charge sheet was laid before the Judicial First Class Magistrate Court, Idukki, where CP.41/2003 was registered. After completing the procedural formalities the case was committed to the Sessions Court, Thodupuzha since it is a case triable exclusively by a court of session from where the matter was made over to the trial court. On the basis of the summons issued, all the accused appeared before the court and were being defended by counsel of their choice. After hearing counsel on both sides, when the charge was framed, read over and explained, all the accused pleaded not guilty. All of them were on bail. 4. Though there were 15 witnesses in the charge sheet, the prosecution had examined only seven of them as PWs 1 to 7. Exts.P1 to P7 were also marked. The material objects were identified as MOs 1 and 2. After completing the prosecution evidence when questioned under Section 313(1)(b) of the Code, all the accused denied the incriminating materials and also reiterated their innocence. Since it was not a fit case for acquittal Crl.A.1039/05 :5: under Section 232 of the Code, they were called upon to enter on their evidence in defence. Accordingly, one witness was examined as DW1 and Ext.D1 was marked. After hearing counsel on both sides, by the impugned judgment, the learned Additional Sessions Judge found accused Nos.2 to 8 not guilty and they were acquitted. However, the first accused, who had allegedly driven the jeep at the time of detection, was found guilty of offence under Section 8(1) and (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for six months. This finding of guilt is called in question in this appeal preferred by the first accused. 5. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. 6. The learned counsel for the appellant is very much sceptical about the finding that reached against the appellant, the first accused. According to the learned counsel, all the independent witnesses have turned hostile to the prosecution and the finding of guilt has been arrived basing on the testimony of PW6 the Sub Inspector alone, who is highly interested in the case. Secondly, it was contended that even though the Crl.A.1039/05 :6: contraband was seized on 10.02.2003, it was produced only on the third day before court and the prosecution could not explain the reason for the delay or that it was kept under proper and safe custody of a competent officer. 7. Regarding the identity of the appellant, it was said that no one else had found that the appellant was driving the vehicle, that he was allegedly arrested in the night and no independent witness had seen him driving the vehicle. In the first information statement, it was stated that he was found standing near the jeep. It is not a reason for inculpating him. According to the counsel, the prosecution also did not conduct any identification parade, which is fatal to the prosecution. It was also pointed out that the appellant was only 19 years at the time when the alleged incident had happened and, since his identity is not proved beyond doubt, there is no proper basis in arriving at a finding in favour of the prosecution. In support of the allegation that there is delay in producing the material objects before court, which stands not explained, the learned counsel has placed reliance on the decision reported in **Vikraman v. State of Kerala [2018 KHC 3177]** and **Ravi v. State [2018 (2) KLD 830]** . According to Crl.A.1039/05 :7: him, in the circumstances, the appellant is entitled to be acquitted. 8. The learned Public Prosecutor rebutted those contentions. According to her, the appellant was arrested from the spot itself and has been properly identified before court. PW6 has also stated before court that the material objects were in his safe custody and such a version of the police officer need not be disbelieved. The prosecution has followed all the procedural formalities and, therefore, the prosecution has succeeded in proving the guilt of the accused and that there is absolutely nothing to disturb the finding of conviction against the appellant. 9. In reply, the learned counsel for the appellant submitted that no one had seen or stated that the appellant was driving the vehicle and he was arrested after seeing him standing by the side of the jeep. In the absence of independent witnesses, especially in an allegation in respect of the occurrence that had happened in the midnight, it is not safe to proceed against the appellant basing on the solitary evidence of PW6, a police officer. So he canvassed for the acquittal of the appellant. 10. PWs.1 and 2 are independent witnesses who had attested Ext.P1 seizure mahazar which is the basis for registering the crime. PW1 Crl.A.1039/05 :8: Mathew, though admitted having signed the Ext.P1 mahazar, denied that he had witnessed the occurrence. PW2 George is the owner of the house, the courtyard of it where the vehicle was stopped and seized by the police under the Ext.P1 mahazar. He also stated generally in tune with the prosecution allegation. According to him, that day he had seen two jeeps reaching his house. He also saw somebody running away from the jeep. He also spoke that some liquid was found pouring out from the jeep. Since he did not identify any of the accused and since he was hesitant to speak about the incident in full, was declared hostile to the prosecution and was cross-examined by the Public Prosecutor. All the same, it requires to be pointed out that he has stated that two jeeps had reached his house in the midnight and one of the jeeps was a police jeep, that arrack was found flowing to his gas plant. In other words, he has spoken generally about the incident, though had turned hostile to the prosecution in material particulars. 11. PW3 is an attester to the scene mahazar. He also turned hostile to the prosecution and was cross-examined by the Public Prosecutor. PW4 also turned hostile to the prosecution. PW5 is the Sub Inspector who had Crl.A.1039/05 :9: arrested some of the accused persons. He did not conduct any investigation. 12. PW6 K.Bijumon is the then Sub Inspector who detected the offence and registered the crime. He gave evidence in tune with the prosecution allegation. According to him, that day, while himself and party were standing near Thopramkudi junction, a jeep came from Prakash area to Thopramkudi and they did not obey his gesture for stopping the vehicle. Seeing the jeep proceeding to Thopramkudi the police team headed by him chased them and at Perunthotti junction it turned towards Marygiri and still they followed them; on the way they could see two persons sitting on the backseat of the jeep pouring out some liquid from the containers and then they understood that it was illicit arrack which was being carried by the passengers in the jeep. After Marygiri church it turned right, towards an earth road and then stopped in the courtyard of one George from where the first accused was arrested who was found driving the vehicle, three persons had got out and ran away from the place. They could see two containers, one of which was 35 ltrs. capacity where 3 litres of arrack was still there. The second container, that is of 10 litres capacity, contained about 3/4[th] of Crl.A.1039/05 :10: arrack; samples were collected from the place and the first accused was arrested from the spot itself at 11.20 P.M. After preparing Ext.P1 seizure mahazar, the contraband item and the jeep were seized and the first accused was arrested and they returned to the police station; the crime was registered and the accused was produced before court on the following day itself and he was remanded to judicial custody. 13. Though the witness was cross-examined by the learned counsel for the accused persons at length, his testimony could not be shaken. At the same time, it has come out that the material objects were produced before court only on 13.02.2003, on the third day. The witness said that it was kept under the safe custody of the Station Writer in the property room, the key of which was being kept in the possession of the Writer himself. 14. PW7 is the successor Sub Inspector who completed the investigation and laid the charge sheet. In other words, out of these 7 witnesses examined on the side of the prosecution, except PW6 Sub Inspector who detected the crime, arrested the first accused, seized the contraband and the jeep from his possession, among occurrence witnesses, no one else did support prosecution case. However, it requires to be Crl.A.1039/05 :11: pointed out that PW2 George, from whose courtyard the jeep was taken into custody and the first accused was arrested, gave some pieces of material to support the prosecution case. Even though he turned hostile to the prosecution, his evidence is beneficial in finding that the allegation is generally true and one person was arrested from the place as suggested by the prosecution. 15. Even though various contentions were raised by the learned counsel for the appellant, I have no doubt that most of them are liable to be rejected. At the same time, one of the contentions, that there was delay in producing the material objects before court and that has not been properly explained, is really formidable and that ground alone is sufficient to cast doubt in the prosecution version. 16. In a case of this nature, the importance or creditworthiness of the nature of the items seized from the appellant is very important. In fact, Ext.P7 is the very foundation on which the prosecution case is built up on. It is true that, in Ext.P7 report it is stated that what was produced for chemical examination was found to be illicit arrack containing percentage of ethyl alcohol ranging from 30.01 to 30.23. At the same time, there must Crl.A.1039/05 :12: be complete nexus between the sample collected from the place of occurrence and the subject matter of the chemical examination report. If only it is found one and the same, the prosecution will succeed in proving the allegation against the appellant. Here, in my opinion, that has not been proved beyond doubt and on that ground alone the prosecution case is liable to be doubted. The contentions, that the evidence of PW6 is solitary, all other witnesses have turned hostile to the prosecution, that the identity of the appellant is not proved, etc., do not inspire confidence. Firstly, as suggested by the learned Public Prosecutor, the evidence of PW6 the Sub Inspector need not be doubted. He was discharging his official duty. In a way his evidence can be believed in corroboration with the partial support rendered by PW2 who has stated that certain incident had happened at his courtyard. Though he turned hostile to the prosecution and did not identify the appellant as the person who was arrested, still, there are other connecting materials to suggest that the appellant/the first accused was arrested from the spot and was produced before court on the next day itself and was sent to judicial custody. The contention of the learned counsel for the appellant that he was standing near the jeep only and was arrested on Crl.A.1039/05 :13: that ground, does not stand a reason. There is a clear statement in Ext.P1 seizure mahazar itself that he was arrested as the driver of the vehicle. All other co-passengers had run away abandoning the appellant and the vehicle. Their identification could not be proved and that precisely is the reason why accused Nos.2 to 5 were acquitted by the trial court. It seems that the State have not preferred any appeal against the finding of acquittal against accused Nos.2 to 8. At the same time, there is no identity crisis with respect to the first accused, the appellant, who was arrested from the spot and it has come out that he was driving the vehicle. PW6 has stated in unambiguous terms that he was found driving the vehicle, that he was arrested from the spot along with the vehicle and other contraband. There is absolutely nothing to disbelieve this version. As noticed earlier, there is no reason to disbelieve PW6 the Sub Inspector. There are corroborating materials to suggest that he was engaged in law and order patrol duty and on the way they found illicit transactions being taken place and then they chased the vehicle driven by the appellant, intercepted it and meanwhile the other accused persons ran away from the place. But the first accused, the driver, could be apprehended from the spot itself. He was identified Crl.A.1039/05 :14: before court also. 17. It has been brought out through the evidence of DW1 and Ext.D1 General Diary of the police station that there was absolutely no difficulty for the Sub Inspector or the Station House Officer to produce the contraband before the court on the next day itself. In fact, it is the rule that the items seized should reach the court post-haste. Here, though the item was seized in the midnight on 10.02.2003, it had reached the court only on 13.02.2003, on the third day. Every delay cannot be stated to be fatal to the prosecution. But the prosecution must be able to say that, meanwhile, the item was kept in safe and proper custody. Then only it will be assured that the item seized from the possession of the accused itself had reached the court and that was forwarded to the chemical examination laboratory for examination. Here, PW6 Sub Inspector had stated that he had entrusted the material object seized from the accused on 10.02.2003 to the Station Writer. We do not know who was the Station Writer. The Station Writer has not been examined. He is not a witness in the charge sheet. Though it was stated that it was in the property room etc., sufficient materials are not made available to say that it was kept in proper safe custody and had Crl.A.1039/05 :15: reached court in a foolproof condition. If only it is proved that the item was kept in a tamper free condition, it will be able to say that the same item was forwarded to the chemical examination laboratory for getting the report. In the absence of such a circumstance, even though it is proved that the appellant was the driver of the vehicle and he was arrested from the spot, the prosecution is bound to fail. 18. Even though the decisions relied by the learned counsel were rendered by single Judges, which are not binding precedents for this Court, still, having regard to the totality of circumstances, I am of the view that it is the consistent stand of this Court that the property seized from the possession and power of the accused should reach the court at the earliest possible opportunity, without any delay at all; in the event of delay, there must be proper explanation for the same. Here, as stated earlier, it reached the court on the third day. There was no explanation for the delay. It could have been produced on the next day itself, when the accused along with remand report was produced. That has not been attempted. Moreover, it is also not proved that the item was kept in a safe and foolproof condition without being able to be tampered by others. In the circumstances, such a Crl.A.1039/05 :16: lacuna on the part of the prosecution stands out and casts doubt in the version of the prosecution and that alone is sufficient to doubt the veracity of the prosecution. Benefit of any such omission or flaw in the case of the prosecution should be given to the accused alone and, therefore, that benefit ought to have been given to the appellant. To sum up, giving the benefit of doubt and in reversal of the finding of guilt, the appellant is found not guilty and is acquitted under Section 386(b)(i) of the Code. His bail bond shall be cancelled and fine, if any, realised shall be refunded and he shall be set at liberty. **Sd/-** **K.HARIPAL JUDGE** okb/19/09/2020 //True copy// P.S. to Judge