Rajeevan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941 ## CRL.A.No.103 of 2008 AGAINST THE JUDGMENT IN SC 188/2007 of ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM DATED 04-12-2007 ## APPELLANT/ACCUSED NO.1: RAJEEVAN, S/O. SANKARANKUTTY, SAJI NIVAS, KACHAPPILLY ROAD,, VYTTILA DESOM, POONITHURA. BY ADVS. SRI.SOORAJ T.ELENJICKAL SRI.M.A.JOSEPH MANAVALAN ## RESPONDENTS/COMPLAINANT: STATE OF KERALA, SUB INSPECTOR OF OF POLICE, HILL PALACE POLICE STATION,, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SRI.K.B.RAMANAND, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl. Appeal No.103/2008 -2- ## **JUDGMENT** The appellant is the first accused in S.C. No. 188 of 2007 on the files of the Additional Sessions Judge (Adhoc-II), Ernakulam for an offence punishable under Section 55(a) of the Abkari Act. The appellant was charge-sheeted along with two other accused persons in Crime No. 20/2004 of Hill Palace Police Station. 2. The case of the prosecution is as follows: On 12.01.2004, at about 4.50 p.m., the first accused was found transporting 300 litres of spirit in a secret chamber specially incorporated in the dickey of a car bearing registration No. PY 01 L 5169 through a public road. The first accused, who was arrested on the spot, was transporting the spirit illegally with the connivance of accused Nos. 2 and 3. 3. The case was taken cognizance of by the Additional Chief Judicial Magistrate, Ernakulam and was committed to the Court of Sessions, Ernakulam vide C.P. No. 31 of 2006. Thereafter, the case was made over to the Additional Sessions Judge, Ernakulam. 4. On the side of prosecution, PWs 1 to 7 were examined and Exts.P1 to P7 were marked. No material objects were identified and marked in the case, since the contraband article involved was already disposed of. On the side of the first accused, DW1, a person who was residing in the next portion of the very same residential building where Crl. Appeal No.103/2008 -3- he was residing, was examined. The accused was questioned under Section 313 Cr.P.C and he denied the prosecution case and stated that he was arrested on 10.01.2004 at about 11 a.m. from his house by the police along with a 'Qualis' vehicle bearing registration No. TNO 04/ J 2286 on the allegation that the same is a stolen vehicle. 5. The learned Magistrate, after trial, as per judgment dated 4.12.2007, found the appellant guilty of the offence and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a further period of six months. Accused Nos. 2 and 3 was not found guilty of the offence and accordingly, they were acquitted under Section 235(1) of Cr.P.C. Aggrieved by the same, this appeal has been filed. 6. The learned counsel for the appellant contended that the prosecution has not succeeded in bringing home the guilt of the accused with cogent and convincing material so as to warrant conviction. He has also contented that the court below went wrong in accepting the arrest of the accused form the spot with the contraband article solely upon the untrustworthy, incredible and mutually contradictory evidences tendered by PWs 5 and 6 and by disbelieving the defence case in toto. He has further argued that the sampling procedure adopted by the Detecting Officer as well as the evidence in connection with the test reports are not in conformity with the rules prescribed for the same. The court below Crl. Appeal No.103/2008 -4- has not considered the inordinate delay in producing the thondy articles, including sample bottles before the court without considering the possibility of tampering with the evidence. In this connection, we have gone through the evidence adduced by the prosecution before the court below. When it is alleged that the accused is convicted for the offence under Section 55(a) of the Kerala Abkari Act, the burden is heavy on the prosecution to establish that he was in possession of the contraband articles and was transporting the same without any authority. The definite case of the prosecution is that the appellant was found in possession of the 300 litres of spirit on 12.01.2004 at about 4.50 p.m. in a tank contained in a red coloured 'Opel Austra' Car. The appellant was alleged to have driven the vehicle. 7. According to the prosecution, PW6 and his party have inspected the car in the presence of the independent witness and it was revealed that there was a secret chamber specially prepared and fitted in the dickey of the car with some liquid in it. After inspecting the liquid by smelling and tasting, it was found to be spirit. The appellant was arrested from the spot at 4.50 p.m. According to the Detecting Officer, he has taken 3 samples of spirit in a bottle containing 375 ml. each and the same was duly sealed and labelled. According to him, the remaining spirit was transferred to nine plastic cans of 35 litres each. All the plastic cans were duly sealed and labelled containing the signature of PW6 and Crl. Appeal No.103/2008 -5- witnesses. Ext.P2 is the arrest memo and P3 is the seizure mahazar, which contains the description of the scene of occurrence and the vehicle. According to the prosecution, the contraband article was being transported for the second accused at Muvattupuzha with the direction of the third accused. The main argument on the side of the appellant was that Ext.P10 was prepared by the Detecting Officer after registering a crime and as per the evidence, the thondi articles were kept in his safe custody, until they were produced before court on 20.01.2004. Ext.P14 report was filed by him before court by arraying the second accused in the party array. PW2 is the Departmental Scientific Expert, who has examined the secret tank fixed in the dickey of the said car. Ext.P15 is the report filed by PW6 in court for arraying the third accused in the party array. PW3 is the Assistant Motor Vehicle Inspector, who has examined the vehicle. PW3 has issued Ext.P6 report to the Investigating Officer. Ext.P17 is the report containing the specimen impression of the seal used by PW6 for sealing the seized articles. PWs 1 and 5 are independent witnesses. PW1, who is the toll-collector in Kaniyampuzha bridge, turned hostile to the prosecution and expressed ignorance about the alleged incident. But, he admitted his signature in Ext.P2 arrest memo in respect of the first accused. Ext.P3 is the seizure mahazar. PW5 is a two wheeler mechanic and he is conducting a workshop in Thripunithura-Vaikom road and has supported the case. According to Crl. Appeal No.103/2008 -6- him, on 12.01.2004, at about 4 p.m., he was coming from Ernakulam on his two wheeler after purchasing spare parts and when he covered the Kaniyampuzha bridge, he saw a gathering there and the police was inspecting an inner tank in a red coloured car having Pondicherry registration. Further, he has stated that the tank in the dickey of the car contained spirit and he has also seen the appellant on the spot. He has also admitted his signature on Ext.P3 mahazar. According to him, he has not seen anybody on the driver seat at the time when the police inspected the vehicle, and he had remained there for about 2 ½ hours. 8.On the side of defence, DW1 was examined to establish that the appellant was arrested by the police from his residential house and he was taken by the police along with a Qualies vehicle having Tamilnadu registration, alleging that it is a stolen article. According to him, the incident was occurred on 10.01.2004. But the evidence of PWs 1 and 5, the independent witnesses, will support the case of the prosecution and PW5 has assertively stated that the appellant was present at the time of inspection by the Detecting Officer. It is true that the driving licence of the first appellant was not seized by the Detecting Officer. According to the prosecution, the evidence of PWs 1, 5 and 6 are more than sufficient to establish that the alleged incident was occurred as alleged by the prosecution. There is no evidence to prove that either PW1 or PW5 has got any previous enmity towards the appellant. On examination of PWs Crl. Appeal No.103/2008 -7- 1,5 and 6, it is proved that the appellant was arrested from the spot along with a red coloured car with the alleged contraband article. 9. The question to be considered is whether the alleged contraband articles was produced before the court without delay. The date of detection was on 12.01.2004 and the sample as well as the thondi articles were produced before court on 20.01.2004. So, according to the defence, the possibility of tampering with the evidence cannot be ruled out and the appellant is entitled to the benefit of doubt on that score. On going through the evidence of PW6, it is found that he has deposed that the thondi articles as well as the samples were kept in his safe custody until they were produced before court. 10. In the decision reported in _**Kumaran P. v. State of Kerala and another**_ [2016 (5) KHC 632], the Apex Court has held that the sample which was taken from the spot has to be produced before court in time and if there is delay, the prosecution has to explain what prevented them from producing the sample before court. In the absence of the explanation by the prosecution, the accused is entitled to the benefit of doubt. 11. In _**Narayani v. Excise Inspector**_ [2002 KHC 863], it is held that in the absence of any evidence to prove that the residue and sample were kept in proper custody till the date of producing the same in Court, the chances of tampering with the sample and residue cannot be ruled Crl. Appeal No.103/2008 -8- out and that in such a case, the accused shall be given the benefit of doubt. 12. The prosecution is to be very careful while dealing this kind of cases and they should produce the sample before court immediately after the detection of the offence. The offence alleged to have committed by the appellant is under Section 55(a) of the Abkari Act and the punishment as per statute is imprisonment for a term which may extend to 10 years and a fine which shall not be less than Rupees one lakh. Since it is a very serious offence, the prosecution will have to be more vigilant to establish that the sample and the contraband articles were produced in a tamper proof condition. Further, the contraband articles produced before court has been disposed of and there is no evidence to prove that the accused has subscribed his signature on the contraband article. PW6 has given evidence to the effect that he has affixed the label containing the signature of himself and the witness. Apart from that, there is no evidence to the effect that the appellant has subscribed his signature in the sample bottle. Even if the chemical examination report would reveal that the sample contained ethyl alcohol, it is not sufficient enough to prove that the contraband article alleged to have seized from the possession of the appellant was the same which was produced before court. The safe custody of the properties including samples till producing in Court is a matter for the prosecution to Crl. Appeal No.103/2008 -9- establish. Since there is delay in producing the sample before court, the possibility of tampering with the samples cannot be ruled out. Therefore, I find that the appellant is entitled to the benefit of doubt. 13. For the reasons mentioned above, I find that the prosecution has failed to prove the guilt of the accused under Section 55(a) of the Kerala Abkari Act and therefore, he is entitled to get acquittal. In the result, this appeal is allowed and the conviction and the sentence imposed against the accused in S.C. No. 188 of 2007 on the file of the Additional Sessions Judge (Adhoc-II), Ernakulam is hereby set aside. The appellants is set at liberty forthwith. The bail bond, if any, executed by the appellant shall stand cancelled. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl. Appeal No.103/2008 -10-