Rajan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 CRL.A.No. 2199 of 2010 ------------------------------- (SC.354/2006 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC), FAST TRACK COURT-I, PATHANAMTHITTA) .................... APPELLANT(S): -------------------- RAJAN,C.NO.5116, CENTRAL PRISON, THIRUVANANTHAPURAM-12 BY ADV. SMT.SHEENA E[STATE BRIEF] RESPONDENT(S): ---------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN,J.** **---------------------------------------------------------Crl.A.No. 2199 of 2010 --------------------------------------------------------Dated this the 19[th] day of July,2011** ## **JUDGMENT** The sole accused in Crime No.108 of 2004 of the Kodumon Police Station for the offence punishable under Sections 8(1) and (2) of the Abkari Act (for short 'the Act') is the appellant. 2. The prosecution case is that the accused was seen in possession of two 10 litres of can containing 11 litres of arrack on 22.8.2004 at 10.30 a.m. on the northwestern side of the house of the accused bearing door No.386 of Kodumon Panchayat and thereby, committed the said offence. On the basis of the above allegation, the Sub Inspector of Police, Kodumon Police Station registered Ext.P2 F.I.R. based upon which further investigation was undertaken and on completing the investigation, a report was filed in the court of Judicial First Class Magistrate, Adoor and C.P.No.181 of 2005 was instituted and by order dated 27.3.2006, therein the learned Magistrate committed the case to the Sessions Court and the Sessions Court received the same on file and instituted S.C.No.354 of 2006. On the appearance of the accused, a formal charge was framed for the offence under Section 8(1) read with Section 8(2) of the Act which was read over and explained to the accused which he denied and Crl.A.No.2199 of 2010 :-2-: pleaded not guilty. Consequently, the prosecution adduced its evidence consisting of the deposition of Pws.1 to 4 and the documentary evidence Exts.P1 to P6. No witness or document is produced from the side of the defence. Besides the above prosecution evidence, Mos.1 to 3 were marked and Exts.C1 and C2 were also marked as court exhibits and CW1 was examined as court witness. On the basis of such evidence of prosecution, the learned Judge of the trial court found that the accused is guilty for the offence under Section 8 (1) read with Section 8(2) of the Act and on such conviction, the learned Judge, sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh and in default, rigorous imprisonment for six months. Set off was allowed. It is the above conviction and sentence challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance of the above judgment, he preferred this appeal from the jail and on receiving the same, this Court directed the Registry to appoint a counsel from the State Brief Panel and accordingly, Advocate Smt.E.Sheena is appointed as counsel to prosecute the appeal on behalf of the appellant. Thus, I have heard Smt.E.Sheena, learned counsel for the appellant as well as the learned Public Prosecutor. 4. In order to substantiate the allegation of the prosecution against the Crl.A.No.2199 of 2010 :-3-: accused, the prosecution mainly depends upon the evidence of Pws.2,3,4 and CW1 and also the documents which I referred to above. 5. PW1 is the independent witness, who is cited and examined to prove the seizure of the contraband article as per Ext.P1 mahazar. Though PW1 is an attestor to Ext.P1 mahazar, he turned hostile. PW2 is a Police Constable attached to Kodumon Police Station who accompanied PW3, the S.I.of Police Station, the officer who detected the offence. When PW2 was examined, he had deposed in terms of the prosecution allegation, but according to him, the date of occurrence was on 28.8.2004. Except the above, in all other respects, his evidence and the evidence of PW3 is identical. As I am intended to analyse the evidence of PW3, I am proposed to narrate the evidence of PW2 in detail. When PW2 was examined, he had identified Mos.1 to 3. 6. PW3 is the officer, who detected the offence, and at that time, he was the Sub Inspector of Police, Kodumon Police Station. According to him, while he was in patrol duty, he received information that the accused was conducting the sale of illicit arrack in his house and pursuant to such information, he along with PW2 were proceeded to the spot and on reaching there, they had seen the accused with contraband article in two cans. It is his further deposition that on seeing the party, the accused ran away from the spot Crl.A.No.2199 of 2010 :-4-: and therefore, even though they chased him, they could not arrest the accused. According to PW3, they seized the contraband articles and Mos.1 and 2 cans and drawn MO3 as per Ext.P1 mahazar. According to him, on the basis of the above seizure, he registered Ext.P2 F.I.R. and prepared Ext.P3 property list, Ext.P4 the forwarding note, Ext.P5 the arrest memo, Ext.P6 the inspection memo and Ext.P7 the remand application and those documents are marked through PW3. PW4 is the successor of PW3 who laid the report. CW1 is the thondi section clerk of the committal court and Ext.P3 was proved through her. She had deposed that Ext.P3 as well as the materials objects were produced in the court on 24.8.2004. When PW4 was examined, he has also deposed in terms of the prosecution allegation, though in the report filed under Section 173 (1), there is material change regarding the place of occurrence, date of occurrence, time of occurrence, name of the accused and the quantity of the contraband article. But, PW4, during his cross-examination, deposed that the above variation was due to the mistake and clarified that what is stated in the F.I.R. and other documents etc. are correct with respect to the prosecution case. It is the above evidence and materials relied on by the trial court to convict the accused and to impose the above sentence. 7. Learned counsel Smt.E.Sheena, appearing for the appellant submitted Crl.A.No.2199 of 2010 :-5-: that the findings of the trial court are without the proper consideration of the evidence and materials and contrary to the real facts and evidence on record. According to the learned counsel, the prosecution case cannot be believed because of the contradictions and infirmities occurred in the case. In support of the above submission, the first point raised by the learned counsel is regarding the date of occurrence. The evidence of prosecution is contradictory in nature and the prosecution witnesses themselves gave conflicting version regarding the date of occurrence. In order to substantiate the above point, the learned counsel took me through the depositions of Pws.2, 3 and 4. When PW3 says that the date of occurrence was on 22.8.2004, Pws.2 and 4 said that the date of occurrence was on 28.8.2004. So regarding the actual date of occurrence, there is no conclusive and acceptable evidence submitted by the learned counsel for the appellant. Another point raised by the learned counsel is that the prosecution has miserably failed to establish the identity of the accused. The learned counsel pointed out that according to PW3, on reaching the place of occurrence, he saw the accused within a distance of 20 metres, whereas PW2 says that the distance was 30 metres. It is also the submission of the learned counsel that except the bare claim that PW3 got previous information, neither PW3 nor PW2 has a claim that they have got prior acquaintance with the Crl.A.No.2199 of 2010 :-6-: accused so as to trace out his identity. To assail the prosecution case, the learned counsel submitted that the prosecution case is under doubt since according to the learned counsel, the prosecution witnesses have claimed that during the seizure, they have pasted labels on the material objects, but the same is not seen on the Mos. It is pointed out by the learned counsel that though in Exts.P1 and P2, it is claimed that MOs. were labelled and sealed, Pws.2 and 3 say that there was no label in the MOs., but only the seal was affixed. (emphasis supplied) Further, according to the learned counsel, the delay in producing the material objects is sufficient to render the prosecution case more doubtful. It is the further submission of the learned counsel that when PW4 laid the charge as pointed out earlier, there is glaring mistake and contradiction on material aspects viz., the place of occurrence, the date of occurrence, time of occurrence, name of the accused and the quantity of contraband article involved in the case. So the entire prosecution is under shadow of doubt and therefore, according to the learned counsel, the trial court is not justified in convicting the accused and therefore, the conviction and sentence imposed by the trial court is liable to be set aside. 8. On the other hand, the learned Public Prosecutor submitted that the seizure was effected on the basis of information received by PW3 in which Crl.A.No.2199 of 2010 :-7-: information, the address of the accused was already furnished and therefore, even though the accused was not arrested from the spot, the same is not a ground to disbelieve the prosecution. It is also the submission of the learned Public Prosecutor that two days delay in producing the material objects before the court is not a ground to acquit the accused, especially when no prejudice is caused to the accused. According to him, the contraband articles were seized in pursuance of the information received by PW3 and the place of seizure is very adjacent to the house of the accused which, further ensures the reliability of the information received by PW3. As already pointed out by the learned Public Prosecutor, according to him, the subsequent arrest was effected properly in the presence of independent witnesses. Thus, according to him, the prosecution has succeeded in establishing the offence against the accused and the trial court is perfectly justified in its finding and the consequent conviction and sentence imposed on the accused and therefore, no interference is warranted. 9. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor and I have perused the judgment and the deposition of witnesses and other materials including the documents. 10. In the light of the facts and circumstances involved in the case and Crl.A.No.2199 of 2010 :-8-: particularly the evidence and materials and in view of the rival contentions, the issue that emerges for consideration is whether the prosecution has proved the offence against the accused under Section 8(1) read with Section 8(2) of the Abkari Act and whether the findings of the court below in favour of the prosecution are correct and justifiable. The crux of the prosecution allegation is that the accused was found in possession of 11 litres of illicit arrack while he was conducting the sale of the same. Let us examine how far the prosecution has succeeded in establishing the said allegation against the accused. As I indicated earlier, in order to prove the occurrence, particularly the seizure and involvement of the accused, the prosecution mainly depends on the evidence of Pws.2 and 3 and the documentary evidence such as Ext.P1 mahazar, Ext.P2 F.I.R., Ext.P3 property list, Ext.P5 arrest memo, Ext.P6 inspection memo and Ext.P7 remand application. According to the prosecution, the seizure was effected in pursuance of the information received by PW3 on the morning of 22.8.2004, the date of occurrence, which is referred to in the F.I.statement. No separate document is produced. In the F.I.statement, it is recorded as “ ........ വളകട ജ�ഗ��ന� വടക� വശ� ച�രടവ�ളയ�ല അണ�ച� എന� വ�ള�യ�ക�ന ര�ജന� വ�ട�ല വ�റ�ച�ര�യ� വ�ല�ന നടത�നത�ന�യ� വ�ശ"�സയയ�ഗ%മ�യ അറ�വ� ലഭ�യ�ക�കയ�ല ........... (emphasis supplied) According to PW3, he” Crl.A.No.2199 of 2010 :-9-: received the information while he was on patrol duty and when he reached at the Valakkada junction. Besides the above, there is no other document. It is true that in the remand application (Ext.P7), the said information was referred to. But, in the present case, it is relevant to note that according to PW2, the seizure was effected on 28.8.2004. PW2 is none other than the person who accompanied PW3 in the alleged seizure. The above version of PW2 is further corroborated by the evidence of PW4, who also says that the seizure was on 28.8.2004. It is true that Exts.P1 and P2 are dated 22.8.2004. Ext.P2 F.I.R reached in the court only on 23.8.2004, though the seizure was effected at 10.30 a.m. on 22.8.2004 as claimed by PW3. But, there is no explanation for the delay in reaching the F.I.R. in the court. It is also relevant to note that according to PW3, he had acted upon the information received by him, but no raid was conducted in the house of the person whose name is mentioned in the information. According to PW3, the information was to the effect that the person named in the information was conducting sale of illicit arrack in his house. But, no search or raid was conducted in the said house. Hence, the claim regarding receipt of prior information cannot be believed as such. 11. It is also relevant to note that nowhere in the deposition of PW.2 or PW.3, it has been stated that they have prior acquaintance with the person Crl.A.No.2199 of 2010 :-10-: whose name is given in the so-called “ _information_ ”. If that be so and the evidence of Pws.2 and 3 is taken as true, there is no reason to believe that the person, who is claimed to have been found in possession of the illicit arrack and the person, whose name appeared in the “ _information_ ”, is one and the same person. Admittedly, even according to PW3, there is no seizure from the physical possession of the accused and the accused was not arrested from the spot. Therefore, even though there is glaring difference, regarding the date of the seizure, between the deposition of PW3 and Pws.2 and 4, the evidence of PW3 that the seizure was effected on 22.8.2004, can be relied and acted upon provided there is any other independent evidence to corroborate the above version of PW3. But, in the present case, though PW1 was cited and examined, he turned hostile. Therefore, absolutely there is no independent evidence to accept the version of PW3, especially when his evidence is not supported by the departmental witnesses viz, Pws.2 and 4. So, regarding the actual date of occurrence of the incident, the evidence of PW3 is doubtful. The said doubt is further accelerated as per the report filed under Section 173(1) of Cr.P.C. by PW4. In the police report, the place of occurrence is shown as Angadikkal. The date of occurrence is shown as 15.8.2004 and the time is shown as 5.30 p.m. and the name of the accused is shown as Madathinal karottu Baby and the Crl.A.No.2199 of 2010 :-11-: quantity involved is 5 litres. It is true that when PW4 was cross-examined, he had deposed that there is mistake in the report. In effect, if there was no crossexamination, the final report would be against the very case of the prosecution. But, it is relevant to note that PW4 failed to offer any acceptable explanation for the mistake that crept in the final report. So the above fact itself is sufficient to disbelieve the prosecution case as such. 12. In this juncture, it is also relevant to note that though PW3 has claimed that the seizure was effected on 22.8.2004, at 10.30 a.m., the contraband article and Ext.P3 property list reached the court only on 24.8.2004. There is no convincing explanation even though the delay was only for two days. In the decision reported **Sasidharan** v. **State of Kerala** (2007(1) KLT 720), a learned Judge of this Court has held that the prosecution has a duty to prove that it was the sample taken from a contraband liquor seized from the accused which had reached in the hands of the chemical examiner in a fool proof condition. In the present case, when PW3 was asked as to where the properties were kept after its seizure and before the production of the same, he had deposed that it was under his custody. No evidence is forthcoming as to where the contraband article was kept and what were the precautions taken against tampering the evidence. Therefore, the mere explanation of PW3 that Crl.A.No.2199 of 2010 :-12-: the properties were under his custody, is not sufficient to ensure that no tampering was done with MO3 samples. So the delayed reaching of properties in the court further created doubt regarding the veracity of the prosecution case as such. 13. It is also relevant to note that another ground taken by the learned counsel for the appellant is that the identity of the accused was not properly established. According to me, the above submission has some force in the particular facts and circumstances involved in the case. As I indicated earlier, Pws.2 and 3 have no claim that they have got prior acquaintance with the accused. There is also no evidence to show that the person mentioned in the information which is allegedly received by PW3 and the person whom they have claimed to have seen run away from the spot on their arrival is one and the same person. Here also, it is relevant to note that when PW3 says that he had seen the accused at the spot within the distance of 20 metres on their arrival, PW2 says that he had seen the accused within 30 metres. The above conflicting version regarding the distance has some importance since both Pws.2 and 3 have no claim that they have got acquaintance with the accused. It is also relevant to note that there was no seizure from the physical possession of the accused. Therefore, according to me, absolutely there is no convincing and Crl.A.No.2199 of 2010 :-13-: cogent evidence to show that the contraband article is recovered from the possession of the accused. 14. It is true that the accused was arrested on 5.9.2004 after the expiry of 15 days. For arresting a person, whose details are obtained earlier, there is no difficulty at all. But, in the present case, the question is whether there is any convincing evidence to show that it was the accused who was found in possession of the contraband article on 22.8.2004 as alleged and claimed by PW3. The answer is negative. The falsity of the prosecution case further reveals from the subsequent conduct of Pws.2 and 3. Even though, according to PW3, he received information regarding the sale of illicit arrack in the house of the accused, whose name is mentioned in the information, PW3 did not make any attempt to conduct search in the house of person so mentioned. The absence of any action, on the direction pointed above, render the information claimed to have received by PW3 as unbelievable because no materials are collected by PW3 to show that the accused was engaged in the sales of illicit arrack. In the absence of any prior acquaintance of Pws.2 and 3 with the accused and non-examination of witnesses, whose names are mentioned in the arrest memo, no legal sanctity can be given for the arrest of the accused on 15.9.2004. So, according to me, the prosecution has miserably failed to Crl.A.No.2199 of 2010 :-14-: establish the identity of the accused and to connect the accused with the alleged seizure. 15. Another contention raised by the learned counsel to disbelieve the prosecution case is that there is no label on the material objects when the same were marked during the trial. In this juncture, it is relevant to note that though in Exts.P1 and P2, it is stated that Mos. were labelled and sealed, during the examination of Pws.2 and 3, they have deposed that there was no label on the Mos.. but only seal was affixed. It is true that probably, after the labels were pasted on the Mos., the same may likely to disappear by efflux of time. But, the absence of labels on the material objects cannot be ignored in the light of the other attendant circumstances involved in the case. As I indicated earlier, in the final report filed by PW4, regarding the place of occurrence, date of occurrence, time of occurrence, the name of the accused and the quantity of contraband article, entirely different material are furnished. But, considering the above infirmities, in the light of the evidence of Pws.2 and 3 and Exts.P1 and P2, I am of the view that the missing of labels on Mos. create further doubt regarding the veracity of the prosecution case. 16. In the light of the above discussions and the materials and the evidence referred to above, I am of the view that the prosecution has miserably Crl.A.No.2199 of 2010 **==> picture [28 x 9] intentionally omitted <==** failed to establish its case against the accused beyond reasonable doubt and consequently, the accused is entitled to get the benefit of doubt and I extend such benefit in favour of the accused. Resultantly, the conviction recorded by the trial court is set aside. In the result, this appeal is allowed setting aside the judgment dated 7.6.2010 in S.C.No.354 of 2006 of the Additional District and Sessions Court (ADHOC), Fast Track Court-I, Pathanamthitta and the accused is acquitted of all the charges levelled against him and he is set at liberty. In the light of the above order of acquittal, the appellant/accused, who is undergoing imprisonment in pursuance of the above impugned judgment, is entitled to get release from jail forthwith if he is not required in any other case. Accordingly, the Registry is directed to forward the gist of this judgment forthwith to the Superintendent of Central Prison, Thiruvananthapuram for appropriate action. ## **V.K.MOHANAN, Judge** MBS/