Puthan Veettil Ambujakshan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** ## **CRL.A.No.2781 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 216/2004 OF ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY** ## **APPELLANT/ACCUSED:** **PUTHAN VEETTIL AMBUJAKSHAN, S/O.VASUDEVAN, VAYATHOOR AMSOM, ATTARANHI, THALASSERY TALUK.** **BY ADVS. SRI.V.V.ASOKAN (SR.) SRI.P.P.RAMACHANDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA (SHO ULLIKKAL POLICE STATION), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI.B. JAYASURYA-SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-08-2019, THE COURT ON 26-08-2019 PASSED THE FOLLOWING:** _Crl.Appeal No. 2781 of 2008_ 2 ## **JUDGMENT** ## **Dated this the 26th day of August 2019** The appellant is the accused in S.C.No.216/2004 on the file of the Additional Sessions Judge (Adhoc)-III, Thalassery, who was found guilty of having committed an offence punishable under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rupees one lakh, with a default sentence of three months' simple imprisonment. 2. The prosecution case in brief is as follows: On 06.11.2001 at about 3.45 P.M. the accused was apprehended by the PW4, the Sub Inspector of Police, Ulikkal Police Station for having been in possession of a sack load of 300 sachets containing 100 ml. each of Karnataka arrack in the presence of PW2 and PW3, who are attestors and witnesses to the seizure and have subscribed their signatures to Ext.P1 seizure mahazar, and also PW1, who was the driver of the taxi jeep in which PW4 and his police party were travelling. After preparing Ext.P1 seizure mahazar and taking the _Crl.Appeal No. 2781 of 2008_ 3 contraband into possession, the accused was arrested vide Ext.P2 arrest memo. One of the sachet was opened and the liquor contained verified by the Police party to get convinced that it was arrack. The contents of two sachets were transferred into a 300 ml. bottle, sealed and labelled in the presence of the Police. The remaining sachets in the sack were brought to the Police Station. Ext.P3 F.I.R. was registered as Crime No.184/2001 and thereafter, it was produced before the Court together with Ext.P4 property list and Ext.P5 forwarding note. On examination of the sample, the Chemical Examiner, vide Ext.P6, reported that the liquor contained ethyl alcohol. During the course of investigation by PW5, Ext.P7 scene mahazar was prepared and submitted before the Court. PW5, the Sub Inspector of Police of Karikottakari Police Station, was not having jurisdiction over the area from where the crime was detected. But according to him, he investigated the case under the oral directions of the Ulikkal Circle Inspector of Police. PW1 to PW3 turned hostile and did not support the prosecution version of seizure. _Crl.Appeal No. 2781 of 2008_ 4 The prosecution is thus left with only the oral testimony of PW4, the detecting officer examined. On appreciation of the evidence, the learned Sessions Judge found the accused guilty and convicted him as stated above. Aggrieved, the accused is in appeal. 3. Heard the learned Counsel for the appellant and the Public Prosecutor. Documents perused. 4. The learned Counsel appearing for the appellant argues that the solitary evidence of PW4 is not safe to be relied upon. None of the official witnesses, who had allegedly accompanied PW4, were examined. It is also stated that PW5 did not have jurisdiction to investigate the case. He has no proper authorisation to investigate the Abkari crime. At the time of examination of witnesses before the Court, all the sachets allegedly containing the liquor, marked as MO2, were found empty and without any liquor in it. The learned Counsel submits that no inventory has been prepared for the prosecution at the time of production of these contraband articles before the Court. That apart, the learned Counsel would also assail the _Crl.Appeal No. 2781 of 2008_ 5 prosecution case for the reason that Ext.P5 forwarding note does not contain the specimen of the seal affixed on the sample so as to confirm that the very same sample, which was drawn from the liquor in the possession of the accused, was sent for examination to the Chemical Examiner. All these infirmities, entitles the accused to earn an acquittal, submits the learned Counsel. 5. To investigate a case under the Abkari Act, there must be proper authorisation from the officer; without which the investigation is flawed (See _**Anilkumar @ Kochumani v. State of Kerala, 2015 (1) KHC 424, Mahesh M.K v. State, 2017 (1) KHC 120, Saji @ Kochumon v. State of Kerala, 2010 (3) KHC 259, Narayankutty v. State of Kerala, 2015 (1) KHC 702, and Vishwan v. S I of Police Tamarassery Police Station and Another, 2018 KHC**_ _**765**_ ). It is held by this Court that a Police Officer appointed as an Abkari Officer as per the notification is not an Abkari Officer everywhere and that he is an Abkari Officer only within his territorial jurisdiction, and that he cannot investigate an offence committed outside his jurisdiction. _Crl.Appeal No. 2781 of 2008_ 6 6. PW5 has admittedly no written authorisation to investigate the crime. The crime was detected by PW4, who was attached Ulikkal Police Station and the scene of occurrence is also coming within his jurisdiction. The Circle Inspector, who had allegedly entrusted the investigation to PW5 has not been examined, nor is there any written authority from him. Hence, the investigation by PW5 cannot be held to be proper. 7. None of the sachets produced before the Court had liquor in it. It is possible that the liquor would have been evaporated or lost in some other manner. But it was essential that at the time of production of articles before the Court, an inventory ought to have been conducted to ensure that the contraband seized from the accused were produced before the Court in the same manner as it was seized (See _**Nagendran v. State of Kerala, 2016 (4) KLT 727**_ and _**B.Chandrasekharan v. State of Kerala, 2016 (5) KHC 650**_ .) 8. Ext.P5 forwarding note does not bear the impression of the seal, which was affixed on the sample drawn from the liquor allegedly seized from the _Crl.Appeal No. 2781 of 2008_ 7 accused. It is settled law that the prosecution is bound to prove that the liquor, that was seized from the accused, itself was produced for chemical examination. In the absence of proof regarding the same, it cannot be concluded that the sample, which was examined by the Chemical Examiner is the very same sample, which was drawn from the accused. The Property Clerk, who received the sample has also not been examined to prove that he had verified the seal on the sample with the specimen provided and was convinced that the seals were intact. Recitals in the Chemical Examiner's report marked as Ext.P6 does not state that the seal was intact but that seal would very well have been the seal of the Court. Ext.P1 seizure mahazar also does not describe the seal that was affixed on the sample (See _**Sasidharan v. State of Kerala, 2007 (1) KHC 275**_ and _**Rajan v. State of Kerala, 2013 (3) KLT 654**_ ). Hence, the benefit has go to the accused. I find that the conviction vide the impugned judgment is not sustainable. _Crl.Appeal No. 2781 of 2008_ 8 In the result, the appeal is allowed and the conviction and sentence of the appellant in S.C.No.216/2004 on the file of the Additional Sessions Court (Adhoc)-III, Thalassery, are set aside and he is set at liberty, in case he is not required in connection with any other case. The bail bonds, if any, executed by him shall stand cancelled. The fine amount if already deposited shall be refunded to the appellant. ## **Sd/-** **ASHOK MENON** _dkr_ **JUDGE**