Rajan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944** **CRL.A NO. 177 OF 2010** **AGAINST THE JUDGMENT DATED 02.01.2010 IN S.C.NO.603/2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE APPELLANT/ACCUSED:** **RAJAN AGED 42 YEARS, S/O.MANI, KALLADIKUNNUMMEL, PUTHUPPADY AMSOM, DESOM, KOZHIKODE.** **BY ADV SRI.LUIZ GODWIN D'COUTH** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT MAYA M.N- P.P** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.06.2022, THE COURT ON 28.06.2022 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.177 of 2010 ## **JUDGMENT** This appeal was directed against the judgment of the Additional Sessions Court (Adhoc-II), Kozhikode, dated 02.01.2010 in S.C.No.603 of 2007. The appellant was convicted and sentenced for an offence punishable under Section 8(2) of the Abkari Act, 1077. The legality and propriety of the said judgment is under challenge in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. 2. The charge against the appellant was that at 11.30 a.m. on 27.06.2005, he was found carrying four litres of arrack in a plastic can along Kaithapoyil-Chembrapatta road in front of the house of Kalladikunnummal Aboobaker in Puduppady desom. 3. The Additional Sessions Court tried the appellant on the said charge and at the trial, PWs.1 to 4 were examined and Exts.P1 to P5 were marked. MO1 was identified also. During the examination of the appellant under Section 313(1)(b) of the Code, he denied the commission of 3 Crl.Appeal No.177 of 2010 the offence and claimed to be innocent. No defence evidence was let in. 4. On 27.01.2010, this appeal was admitted to file and as per order in Crl.M.A.No.928 of 2010, the sentence imposed on the appellant was suspended and he was released on bail on the conditions mentioned therein. 5. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 6. PWs.1 and 2 are officials, who detected the offence. PW1 is a Preventive Officer in the Excise Department and PW2 is an Excise Guard. Both of them deposed regarding the incident in detail. While they were on patrol duty, happened to see the appellant coming carrying a plastic can along the road in front of the house of Kalladikunnummal Aboobaker at about 11.30 a.m. on 27.06.2005 and when inspected, the can in his possession contained four litres of arrack. Therefore, he was arrested and the contraband was seized. Two samples of 180 ml. each were drawn. The material objects, including the samples, were sealed and 4 Crl.Appeal No.177 of 2010 labelled at the place itself and for the seizure of the same, mahazar was prepared, which is Ext.P1. They had identified MO1 as the plastic can seized from the possession of the appellant. 7. PWs.3 and 4 are attestors to Ext.P1. But both of them denied having seen the incident. Despite lengthy examination by the Public Prosecutor in the nature of the cross-examination, he could not elicit any evidence from PWs.3 and 4 with respect to the arrest of the accused and seizure of the contraband from him. Therefore, the evidence available to prove the charge is the oral testimonies of PWs.1 and 2 alone. The investigating officer also was not examined. 8. The learned Additional Sessions Judge relying on the law laid down by the Apex Court in **Tahir v. State (Delhi) [AIR 1996 SC 3079]** and **Karamjit Singh v. State (Delhi Administration) [AIR 2003 SC 1311]** held that evidence of PWs.1 and 2 supported by Ext.P1 sufficiently had proved the charge levelled against the appellant. Accordingly, the accused was convicted and sentenced. 5 Crl.Appeal No.177 of 2010 9. The learned counsel appearing for the appellant would submit that PW1 was incompetent to take any step in investigation and submission of a report as contemplated in Section 50 of the Abkari Act and in the absence of any evidence as to who did all such acts, the conviction of the appellant is illegal. Non-compliance of Section 53A of the Abkari Act is also highlighted as a reason for unsettling the conviction. In this regard, the learned counsel placed reliance on the decision in **Appu v. State of Kerala [2016 (5) KHC 310]** , wherein it was held that non-compliance of Section 53A of the Abkari Act may become fatal to the prosecution, if there is delay in production of the seized articles and samples before the court and the prosecution could not explain the delay satisfactorily. 10. The learned Public Prosecutor, on the other hand, would contend that PW1 is competent to effect seizure and to do the necessary follow up actions in the light of the notification issued in G.O.(Ms) No.356/67/Rev. dated 10.08.1967. It is therefore contended that although the 6 Crl.Appeal No.177 of 2010 investigating officer was omitted to be examined in this case, no prejudice was caused to the appellant and as such, his conviction for the offence under Section 8 of the Abkari Act is perfectly legal and there is no reason to interfere with the same. 11. On the seizure of objectionable articles as provided in Section 34 of the Abkari Act, the matter has to be reported to the court concerned immediately by submitting an inventory prepared by the authorized officer and to get it attested. In order for production of the contraband, a detailed procedure is laid down in Section 53A of the Abkari Act and compliance of the said procedure is mandatory. Certain officers are authorized to do those acts and performance of such acts by the officers authorized for the purpose is not proven that may result in prejudice to the right of the accused and the prosecution may fail. 12. Going by the aforesaid notification, PW1 was empowered to effect seizure and to submit the necessary report in that regard before the court. But he has no 7 Crl.Appeal No.177 of 2010 empowerment to conduct investigation and file a report under Section 50 of the Abkari Act. So also, PW1 has no empowerment under Section 53A of the Abkari Act to prepare inventory and submit the same before the Magistrate. The prosecution did not take any steps to adduce evidence before the trial court with respect to those aspects. PW1 did not state anything regarding those aspects as well. Of course, if the officers, who performed such acts were not available, it would have been possible for PW1 to state in court in proof of the steps taken by such officers. It is not known whether the officer who conducted the investigation and submitted the report under Section 50, and took steps under Section 53A of the Abkari Act, were available for examination in the court. In the absence of any evidence with respect to the compliance of Section 53A, production of the samples before the chemical examiner and also the steps taken in the process of investigation, it cannot be said that the prosecution has satisfied the requirements for a successful prosecution. Evidence is lacking regarding the due 8 Crl.Appeal No.177 of 2010 transmission of samples to the Chemical Examiner’s Laboratory without any possibility of tampering of the same as well. 13. As concluded by the learned Additional Sessions Judge, evidence of PWs.1 and 2 is devoid of any defect and the same can be relied on to find that the appellant transported the contraband. However, there is total dearth of evidence with reference to the further actions in the matter, such as production of articles before the court, due forwarding of the samples to the Chemical Examiners Laboratory, conduct of investigation and submission of the report under Section 50 of the Abkari Act. In such circumstances, it cannot be said that the prosecution succeeded in proving the charge against the appellant beyond doubt. Therefore, the conviction and sentence imposed on the appellant by the learned Additional Sessions Judge (Adhoc-II), Kozhikode, are unsustainable in law. The appeal is therefore liable to be allowed. 9 Crl.Appeal No.177 of 2010 14. Accordingly, the appeal is allowed and the appellant is acquitted. He is set at liberty. If any amount of fine is deposited by the appellant as per the order of this Court dated 27.01.2010 in Crl.M.A.No.928 of 2010, the same shall be refunded. Sd/- **P.G. AJITHKUMAR, JUDGE** dkr