Rajeevan Pillai v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937 CRL.A.No. 1793 of 2004 (C) --------------------------- AGAINST THE JUDGMENT IN SC 374/2003 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), PATHANAMTHITTA DATED 00-00-0000 APPELLANT(S)/ACCUSED:: --------------------- RAJEEVAN PILLAI, AGED 28 YEARS,S/O. BHASKARAN PILLAI, SARASWATHI NIVAS,, KODAMALA PLANTATION BHAGOM, KUMARAMPEROOR,, THEKKEKARA MURI, VADASSERIKKARA VILLAGE. BY ADV. SRI.S.MUHAMMED HANEEFF RESPONDENT/COMPLAINANT:: --------------------------- STATE OF KERALA, REP. BY EXCISE INSPECTOR, EXCISE RANGE OFFICE,, KONNI (OR.NO.23 OF 2001), REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PP SRI N SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.D.RAJAN, J ......................................... Crl.A.No.1793 of 2004 ....................................... Dated 17[th] March, 2016 ## JUDGMENT This appeal is preferred by the accused against the conviction and sentence in S.C.374 of 2002 of additional Sessions Judge Adhoc I, Pathanamthitta under Section 8 (1) of the Abkari Act. The charge against the accused is that on 26.9.2001 at 1.30 pm, he was found in possession of 3 litres of arrack in front of Government LP School, Mukkuzhy by the Excise Inspector, Pathanamthitta range. He was arrested and the contraband articles were seized after preparing a mahazar and registered crime. After completing investigation, Excise Inspector, Konni laid charge against the accused before Judicial First Class Magistrate II, Pathanamthitta. Subsequently, the case was committed to Sessions Court, Pathanamthitta and from there it was made over to additional Sessions Judge, Adhoc I. 2. During trial, prosecution examined PW1 to PW5 and marked Ext.P1 to P8 as documentary evidence. MO1 Cra 1793/2004 2 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Learned Sessions Judge convicted the accused under Section 8 of the Abkari Act and sentenced to imprisonment for two years and fine of Rs.1 lakh with a default sentence of two years. Being aggrieved by that, he preferred this appeal. 3. The main contention advanced by the learned counsel appearing for the appellant is that there was no forwarding note in this case. There is no guarantee that the seized articles were properly produced before court at the time of seizure. Therefore, the evidence in support of the prosecution is not reliable. He also submitted that the quantity seized from the appellant is very small. 4. The offence was detected by PW1, Excise Inspector, Pathanamthitta excise circle office while conducting patrol duty. The evidence of PW1 shows that on 26.9.2001 while he was conducting patrol duty and he reached at the place of occurrence, the appellant was Cra 1793/2004 3 found carrying MO1 kannas. On seeing the exicse party, he became frightened and attempted to ran away from there. On seeing this, PW1 intercepted him and inspected MO1 in which 3 litres of arrack was detected. He took 300 ml as sample. The balance arrack and sample taken were sealed and labelled at the place of occurrence itself. The independent witnesses present there put their signature in Ext.P1 mahazar and in the label. Reaching at the excise office, he entrusted the accused and contraband articles in the office of Excise Inspector, Konni Excise Range. PW2 Preventive Officer attached to Excise Circle office, Pathanamthitta supported the evidence of PW1. He also identified the signature in Ext.P1. PW2 also identified MO1. Even though PW1 and 2 were cross examined by the defence counsel, nothing has been brought out to discredit their direct oral evidence. The independent witnesses PW3 and 4 did not support the prosecution case, but they admitted the signature in Ext.P1 seizure mahazar. They stated that they did not see the seizure of MO1 from the possession of the Cra 1793/2004 4 appellant. A close scrutiny of their evidence reveals that they admitted their signature in Ext.P1 seizure mahazar and they never saw the seizure. Now the question is whether the mere fact that independent witnesses did not support the occurrence is a ground to discard the oral testimony of PW1 and PW2. A close analysis of the evidence of PW3 and 4 makes it clear that they admitted their signature in Ext.P1 which is a corroborative piece of evidence. 4. The investigation conducted by PW5 shows that he produced the sample before court from there it was sent over to the chemical examination lab and obtained Ext.P5 certificate. In Ext.P5, 43.75% of ethyl alcohol was detected. During cross examination, he admitted that CW5 also conducted investigation in this case. CW5 registered a crime and occurrence report. Ext.P6 is the occurrence report. The accused was produced before court as per Ext.P7 remand application, the property list was marked as Ext.P8. Learned trial Judge observed that even after specific coercive steps taken against CW5, he Cra 1793/2004 5 could not obtain his presence. In the circumstance, the documents prepared by CW5 were marked through PW5. There is no illegality in the marking of these documents through PW5 since both of them have worked together and he know the signature of CW5. Trial court in paragraph 20 observed that along with the accused, thondi and the sample were sealed and labelled. The chemical examination requisition was also forwarded to the Magistrate. No question was asked specifically about the forwarding note. The Magistrate had verified those documents and properties and forwarded these items to the Chemical Examiner's Lab. I find no illegality in the above procedure. This court in **Ravi V. State of Kerala** (2011(3) KLT 353) held as follows. “The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. (Vide **State of Rajasthan V. Daulath Ram** (AIR 1980 SC Cra 1793/2004 6 1314) and **Valsala V. State of Kerala** (1993(2) KLT 550 (SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the samples which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See Sathi V. State of Kerala (2007(1) KLT SN 57(C.No.82) and Sasidharan v. State of Kerala (2007(1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant”. 5. A close analysis of the evidence in this case shows that proper steps were taken by the Investigating Officer for producing the article in the Chemical Examiner's Lab in a tamper proof condition. Therefore the evidence in Ext.P5 Chemical Examination Certificate is Cra 1793/2004 7 admissible. Trial court rightly convicted the accused under Section 8 of the Abkari Act. 6. Learned counsel appearing for the appellant submitted that the quantity seized from the appellant is only 3 litres. Considering the nature of the offence and the circumstances under which it was committed, appellant is entitled to get some leniency. Relied the decision of the Apex Court in **Sasikumar V. State of Kerala** (2012(4) KLT 867 SC). In the result, appellant is sentenced to imprisonment for one month and fine of Rs.1 lakh and in default of payment of fine, simple imprisonment for 15 days. The period of detention undergone by the accused during investigation, enquiry and trial is entitled to set off. Appellant is directed to surrender in the additional Sessions Court, Fast Track I to undergo the modified sentence forthwith. This appeal is allowed in part. P.D.RAJAN, JUDGE lgk