Prasad and Lal v. State of Kerala

Crl.A.No.1255 of 2007 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944_ ## _CRL.A NO. 1255 OF 2007_ _AGAINST THE ORDER/JUDGMENT IN SC 584/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA_ ## _APPELLANTS/ACCUSED NOS.1 & 2:_ _1 PRASAD, S/O. RAGHAVAN, KUZHIOZHATHIL HOUSE, PERUMTHOTTI KARA, VATHIKUDY VILLAGE(A2). 2 LAL, S/O. SURENDRAN, KULAKATTUKUDIYIL, PERUMTHOTTI KARA, VATHIKUDY VILLAGE(A3)._ _BY ADV SRI.C.M.TOMY_ ## _RESPONDENT/COMPLAINANT:_ _STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM._ _SRI.RANJIT GEORGE – SR. PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ Crl.A.No.1255 of 2007 2 ## **JUDGMENT** The appellants are the accused Nos.2 and 3 in S.C.No.584 of 2005 of the Additional Sessions Court Adhoc-II, Thodupuzha. The aforesaid case arises from Crime No.52 of 2005 of Murikkassery Police Station, which was registered against the appellants herein and another for the offences punishable under Sections 8(2) and 55(a) of the Kerala Abkari Act as well as offences punishable under Section 201 IPC and Rule 22 (a) of Road Regulation, 1989 read with Section 177 of the M.V.Act. 2. The prosecution case is as follows: on 11.06.2005 at 11.30 pm, the Sub Inspector of Police, Murikkassery Police Station, along with his team were engaged in patrolling duty, gave a stop signal to one autorickshaw while they were at Thopramkudy, for the purpose of checking the same. However, the autorickshaw did not stop and they moved forward. The Crl.A.No.1255 of 2007 3 police party chased the autorickshaw and the persons travelling in the aforesaid autorickshaw have thrown two cans onto the road. Later, the aforesaid autorickshaw capsized, and the person who drove the autorickshaw ran away from the spot. The appellants herein who are accused Nos.2 and 3 in the said case were lying beneath the autorickshaw. On examination of the cans thrown by the persons travelling in the autorickshaw, it was found that the same were broken and were having a smell of arrack. Immediately, the appellants were arrested from the spot along with the aforesaid broken cans. Later, FIR was registered, and an investigation was conducted. On completion of the investigation, the final report was submitted before the Judicial First Class Magistrate CourtIdukki, and upon completion of legal formalities, the matter was committed to the Sessions Court, Thodupuzha, which in turn was made over to Additional Sessions Court (ADHOC-II), Thodupuzha, where it was tried as S.C.No.584 of 2005. For establishing the prosecution case PW1 to PW6 were examined, Crl.A.No.1255 of 2007 4 Exts.P1 to P13 were marked, and Mos.1 to 5 were identified. After the closure of prosecution evidence, the appellants and the 1[st] accused were examined under Section 313 Cr.P.C. and the incriminating materials brought out during the trial were put to them, which they denied. After evaluating the materials available on record, the learned Sessions Judge concluded that the 1[st] accused who was allegedly driving the autorickshaw at the relevant time was found not guilty and the appellants were found guilty and therefore, sentenced to undergo rigorous imprisonment for two years each and a fine of Rs.1,00,000/each with a default sentence of rigorous imprisonment for three months for the offence under section 55(a) of the Kerala Abkari Act, and sentenced to undergo rigorous imprisonment for one year each for the offences punishable under Section 201IPC. Even though, they were found guilty for the offences punishable under Section 8(2) of the Kerala Abkari Act, no separate sentence was awarded. This appeal is filed by the Crl.A.No.1255 of 2007 5 appellants challenging the aforesaid order of conviction and consequential sentence. 3. Heard Sri.C.M.Tomy, learned counsel for the appellants and Sri.Ranjit George, learned Public Prosecutor for the State. 4. The learned counsel for the appellants submits that the prosecution failed to establish the findings against the appellants herein. According to him, there was a delay in forwarding the articles for chemical analysis. Apart from the above, the learned counsel also highlighted certain discrepancies in the arrest of the appellants. The further contention of the learned counsel for the appellants is that no proper investigation was conducted to find out the ownership of the autorickshaw in which the appellants were allegedly travelling. 5. On the other hand, the learned Public Prosecutor appearing for the State would point out that the evidence of PW4, the detecting officer, coupled with the documentary Crl.A.No.1255 of 2007 6 evidence in the form of Exts.P1, P2, P3 and P10 would clearly establish the offence committed by the appellants herein. In such circumstances, the learned Public Prosecutor prays for the dismissal of the appeal. 6. From the materials available on record, it can be seen that the crucial evidence relied on by the prosecution is that of PW4. He is the detecting officer, and according to him, on 11.06.2005, he was on patrol duty along with the police party. By 10.30 pm, they reached Thopramkudy as part of vehicle checking. They asked an autorickshaw coming in their way to stop. However, the aforesaid vehicle did not stop and proceeded with increased speed. The police party chased them and at that time, the persons travelling in the autorickshaw had thrown out two cans and immediately thereafter, the autorickshaw capsized. They could see the driver of the aforesaid autorickshaw running away, but they could apprehend two persons travelling in the said vehicle, who were identified as accused Nos.2 and 3. On examination, Crl.A.No.1255 of 2007 7 they could find that the cans thrown away were broken and the contents were lost. However, it was noticed that those were having the smell of arrack. In such circumstances, the accused persons were arrested, and they were brought to the police station, registered Ext.P6 FIR and later produced before the court along with the articles. Subsequently, the 1[st] accused was arrested. Apart from PW4 , PW1 and PW2, who were the attestors of Ext.P1 seizure mahazar were examined to prove the arrest and seizure of the appellants. However, PW1 and PW2 have turned hostile to the prosecution, despite admitting their respective signature in Ext.P1 mahazar. 7. When I consider the evidence on record, it can be seen that the only evidence available is that of PW4. No police officer accompanying PW4 was examined. One of the contentions put forward by the learned counsel for the appellants is regarding the discrepancy in the arrest. My attention was brought to Ext.P2 and P3 arrest memos of 2[nd] and 3[rd] accused, respectively, and from the perusal of the Crl.A.No.1255 of 2007 8 same, it is evident that the said memos, were prepared at 11.45 pm on 11.06.2005. Ext.P6 is the FIR seen registered by the police at 2.30 am on 12.06.2005. Even though the registration of the crime was after the arrest of the appellant, Ext.P2 and P3 arrest memos contain crime numbers therein. Mentioning the crime number in the arrest memo is a crucial aspect that creates doubt about how the arrest has been made. The aforesaid aspect was considered by this Court in **Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and Others [2020 (3) KHC 715]** , it was held as follows: “21. Presence of the crime number of the case in the arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, gives rise to either of the two inferences, that the first information report was recorded prior to the alleged recovery of the contraband or that the number of the first information report was inserted in the arrest memo after its registration. In both situations, it seriously reflects upon the veracity of the prosecution version Crl.A.No.1255 of 2007 9 of the incident and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution (See **Zofar v. State : 2000 Cri.L.J 1589, Kailash @ Kuddu v. State : 2000 Cri.L.J 2134** and **Karunakar Bindhani v. State of Kerala : 2017 (1) KLD 48** ). When it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report, the presence of the crime number of the case in the arrest memo, in the absence of any cogent and convincing explanation offered by the prosecution, creates a deep dent on the veracity of the case put forward by the prosecution (See **Shyam Bharia v. State of Madhya Pradesh: 2005 Cri.L.J 1907** ). It creates doubt as to the manner in which seizure of the contraband substance and the arrest of the accused were effected by the police officers (See **K. Kalyani v. State : MANU/TN/1070/2019** ).” 8. The aforesaid lacuna creates a serious doubt on the veracity of the prosecution case. This is mainly because the entire prosecution case rests upon the arrest and seizure of the appellants from the spot. The mentioning of the crime number in the arrest memos, which were supposed to have been prepared before the registration of the crime, throws Crl.A.No.1255 of 2007 10 suspicion on the prosecution case. There is yet another aspect which creates further doubts about the prosecution case. The specific case of the prosecution is that at the relevant time, the appellants were travelling in the autorickshaw bearing registration No.KL-7-AQ/1980. No investigation is seen conducted to find out the owner of the aforesaid autorickshaw and the same is also not seized as part of the investigation. The absence of investigation as to the ownership of the said vehicle is a crucial aspect, as the possession of the aforesaid vehicle by the accused persons at the relevant time cannot be proved in the absence of seizure of the said vehicle and production of the materials regarding the ownership and possession of the aforesaid vehicle. The failure in conducting an investigation in that direction, coupled with the discrepancies that have come out from the arrest memo, would clearly make the prosecution case highly suspicious. 9. Another crucial aspect to be noticed in this regard is the lack of proper materials to show that the article which Crl.A.No.1255 of 2007 11 were allegedly carried in the can was arrack. The evidence available in this regard to prove the same is the oral evidence of PW4 coupled with the Ext.P10 chemical analysis report. The contents of Ext.P10 report is to the effect that, on examining the cans, they could find traces of Ethyl Alcohol therein. PW4 stated that at the time when the cans were seized, it was empty, and there was the smell of arrack. It was stated by PW4 that from his experience, he could find out the contents of the said can was arrack. However, I am of the view that the materials produced by the prosecution in the form of PW4 and Ext.P10 are not sufficient to hold that the article which was allegedly carried by the appellant in the aforesaid cans was arrack. Arrack is specifically defined under Section 3(6A) of the Kerala Abkari Act which reads as follows: "(6A) "Arrack" means any potable liquor other than Toddy, Beer, Spirits of Wine, Wine, Indian made spirit, foreign liquor and any medicinal preparation containing alcohol manufactured according to a formula prescribed in a pharma-copoeia approved by the Government of India or the Government of Kerala, or manufactured Crl.A.No.1255 of 2007 12 according to a formula approved by the Government of Kerala in respect of patent and proprietary preparations or approved as a bonafide medicinal preparation by the Expert Committee appointed under Section 68A of the Act.” 10. Thus, it is evident that the specific definition has been given to arrack in the Kerala Abkari Act. Therefore, to establish the offence under Section 8 of the Act, the prosecution must prove that the article seized from the possession of the accused is arrack. In this case, the only material is Ext.P10 report, which does not contain any finding to the effect that the article kept in the cans was arrack. The said finding is only to the effect that they could find traces of Ethyl Alcohol. The traces of Ethyl Alcohol by itself cannot lead to a conclusion that the article seized by the police was arrack. Even though PW4 had stated that he could identify the article as arrack from the smell of the same, the conviction cannot be made by relying on such vague evidence. On examining the entire materials, the only conclusion possible is that the prosecution failed to prove that it was arrack that they have Crl.A.No.1255 of 2007 13 allegedly carried in the cans. As regards the offences under Section 55(a) of the Abkari Act is concerned, from the materials available on record, it is difficult to conclude that the aforesaid offence is also attracted. This is mainly because the primary case of the prosecution is that when the police party chased the autorickshaw, they found that the persons travelling in the autorickshaw had thrown two cans from the autorickshaw onto the road. 11. However, apart from the evidence of PW4, there is no other corroborative evidence for establishing the same. Even though admittedly he was chasing the autorickshaw along with the other police officers none of the said officers were examined by the prosecution. In such circumstances, it cannot be concluded that the prosecution has established the allegation that the cans which were produced as MO1 and MO2 were thrown from the autorickshaw. The fact that the ownership of the autorickshaw was not found out and no investigation was conducted to identify the owner of the said Crl.A.No.1255 of 2007 14 autorickshaw is also a matter which has to be taken into consideration along with the said fact. In such circumstances, the discrepancies mentioned above create a serious shadow of doubt on the prosecution case. In such circumstances, I am of the view that interference in the finding entered by the trial court holding the appellants guilty is to be made. 12. Another offence for which the appellants were found guilty is under Section 201 IPC. The aforesaid offence is based on the allegation that they have destroyed the evidence by throwing away cans containing arrack from the autorickshaw. I have already found that the only evidence adduced by the prosecution to establish the same is the oral evidence of PW4, and in the absence of any corroborative evidence in support of the same, the aforesaid allegation cannot be accepted as such. Moreover, I have also found the prosecution failed to prove that the appellants were transporting arrack in the aforesaid autorickshaw. Consequent to the aforesaid finding, they were found not Crl.A.No.1255 of 2007 15 guilty of the offence under the provisions in the Abkari Act. In such circumstances, the finding of the learned Sessions Judge holding the appellants guilty for the offence punishable under Section 201 IPC is also liable to be interfered with. In the result, this appeal is allowed. Conviction and sentence passed by the Additional Sessions Court (ADHOC-II), Thodupuzha, as per judgment dated 28.06.2007 in S.C.No.584 of 2005, is hereby set aside. Appellants were found not guilty and acquitted of all the charges. Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** DG/23.3.22