Raveendran @ Ravi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 6TH DAY OF NOVEMBER 2013/15TH KARTHIKA, 1935** ## **CRL.A.No. 997 of 2012 (D)** **-----------------------------------[AGAINST THE JUDGMENT DATED 27/06/2012 IN S.C.NO. 656/2008 OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, (ADHOC), FAST TRACK COURT NO.I,PATHANAMTHITTA] .............** **APPELLANT/ACCUSED: ----------------------------------** **RAVEENDRAN @ RAVI, S/O. MADHAVAN, MANDAPAKUNNIL VEEDU, NANNATTUKAVE, VEMBAYAM, NEDUMANGADU, THIRUVANANTHAPURAM.** **BY ADV. SRI.SAJU.S.A.** **RESPONDENT/COMPLAINANT: --------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSEUCTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. VIJU THOMAS.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-10-2013, ALONG WITH CRL.A. NO.1450/2012,THE COURT ON 06-11-2013 DELIVERED THE FOLLOWING:** **Prv.** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal. Nos. 997 & 1450 of 2012 - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of November, 2013. ## JUDGMENT Two persons were prosecuted for the offences punishable under Sections 8(1) and 8(2) of the Abkari Act. Both of them were found guilty and each of them was sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.One Lakh each with a default sentence of rigorous imprisonment for one year each. 2. The incident which gave rise to the registration of the crime was occurred on 26.11.2007 at 17.45 hours. The prosecution allegation is that on the relevant date, P.W.5 and his colleague officers were on patrol duty and during their duty they received reliable information about the sale of contraband articles on the southern side of a temple. When they reached the place of occurrence, they found two persons standing there with two cans. The first accused was seen to Crl.Appeals.997 & 1450/2012. 2 possess 1 ½ litres of contraband article in a can having a capacity of 2 ½ litres and the second accused was found to have 10 litres in a can having capacity of 35 litres. The police party approached them and they have disclosed their identity. P.W.5 would say that in the presence of witnesses who were there at the place of occurrence, they tested the contraband article and found it to be spirit. Both of them were arrested and the arrest memos have been produced. Rs.830/- found in the pocket of accused No.1 was also seized. The custody memo of accused No.1 is marked as Ext.P4 and inspection memo is produced as Ext.P6. The can seized from the possession of the first accused was marked as M.O.1 and sample taken from that can was numbered as S1. Similarly the can found in the possession of the second accused was marked as M.O.2 and the sample taken from that can was marked as S2. P.W.5 says about the taking of samples, affixing of the seals and labels of the respective samples. He prepared Ext.P1 mahazar. P.W.5 returned to the Crl.Appeals.997 & 1450/2012. 3 police station along with the contraband articles and accused and registered Crime No.883 of 2007 for offences under Section 8(1) and 8(2) of the Abkari Act. He has the seized articles forwarded to the court and had it sent for chemical examination and obtained Ext.P11 report. Ext.P11 report reveals that both the samples contain ethyl alcohol. He completed investigation and laid charge before court. 3. The court, before which final report was laid, took cognizance of the offences. Finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Pathanamthitta. The said court made over the case to Additional District and Sessions Court (Adhoc) Fast Track-I , Pathanamthitta for trial and disposal. 4. The latter court, on receipt of records and on appearance of the accused, framed charge for the offences punishable under Sections 8(1) and 8(2) of the Abkari Act. To the charge, the accused pleaded not guilty and claimed to be 4 Crl.Appeals.997 & 1450/2012. tried. The prosecution, therefore, had P.Ws.1 to 5 examined and had Exts.P1 to P11 marked. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They deposed that they are innocent and they have been falsely implicated. According to them, the contraband articles were seized from the property of one Mohanan and he was the real accused and due to his influence, he has been exonerated and the present accused persons have been made scape-goats. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They chose to adduce no evidence. 5. Relying mainly on the evidence of P.Ws.2 and 5 and also Exts.P1 and 11, the court below came to the conclusion that the offences have been made out against the accused persons and therefore they were found guilty. 6. Since the second accused could not get bail from this court and remained in custody, he preferred an appeal Crl.Appeals.997 & 1450/2012. 5 from the jail. Adv. P.Thomas Geevarghese was appointed as State Brief to defend him. 7. Learned counsel appearing for the appellants contended that the court below has erred both on facts and in law in convicting the accused. According to them, the evidence of P.Ws.2 and 5, on which reliance was placed by the court below, are inconsistent and contrary and that makes the detection open to considerable doubt. It was pointed out that neither P.W.2 nor P.W.5 was sure about the actual article seized from the possession of the accused persons. In one place they say that it is arrack and in another place they say that it is spirit. That also shows the hollowness of the prosecution case. It is also pointed out that P.W.5 who is the detecting officer completed the investigation and laid charge before court. The fact that the detecting officer and the investigating officer is one and the same person has caused considerable prejudice to the accused and they placed reliance on the decision reported in Kader v. State of Kerala (2001 KHC Crl.Appeals.997 & 1450/2012. 6 424). Placing reliance on the decision reported in Joseph v. State of Kerala (2009 (4) KHC 537) learned counsel for the appellants contended that in the case on hand there is no evidence to show that the forwarding note was sent to the learned Magistrate and there was a request to send the samples for chemical examination. In a similar situation, in the decision reported above, it was held that the prosecution is bad in the absence of evidence to that effect. It is therefore contended that the accused persons are entitled to an acquittal. 8. Learned Public Prosecutor on the other hand pointed out that the evidence of P.Ws.2 and 5 are consistent regarding the detection and they speak about the sampling, labelling and also about forwarding the samples taken to the court for sending it for chemical examination. Referring to the evidence of P.W.5, it is contended that in the remand report there is a specific mention of the forwarding note being sent to the court. It is therefore contended that the reliance placed Crl.Appeals.997 & 1450/2012. 7 on the decision cited above has no application in the present case. The fact that P.W.5 is both the detecting officer and the investigating officer has not caused any prejudice to the accused persons and there is no legal infirmity attached to the same person being the detecting officer and investigating officer. Attention was drawn to the fact that in such cases like the present one, a major portion of the investigation was done by another officer and only a negligible portion of the investigation is done by the final investigating officer. The mere fact that the investigating officer and the detecting officer are one and the same person by itself is not a ground to throw out the prosecution case. Learned Public Prosecutor contended that the evidence of P.Ws.1 and 5 are sufficient to come to the conclusion that the offences have been made out and no grounds are made out to interfere with the conviction and sentence. 9. The prosecution depends upon the evidence of P.Ws.2 to 5. The independent witnesses, namely P.Ws.1, 3 and Crl.Appeals.997 & 1450/2012. 8 5 turned hostile. Of course, the attesting witnesses examined though admitted their signature, denies having seen the seizure. P.W.2 claims to have been in the company of P.W.5 who was the detecting officer. P.W.5 says that on the date of the incident, while on patrol duty, he received reliable information about the sale of contraband article, he proceeded to the spot and found accused Nos.1 and 2 holding two cans. P.W.2 also gives similar version. Both of them say that the accused were apprehended and from the possession of the first accused, 1 ½ litres of contraband article and from the possession of the second accused 10 litres of contraband article were seized. Both of them speak about the various steps taken for arrest, sampling and labelling of the contraband article. Of course, there is some error exposed regarding the sampling. But in the evidence of P.W.2 that has been clarified. 10. The main contention raised by the appellant is that the articles infact were seized from the possession of one 9 Crl.Appeals.997 & 1450/2012. Mohanan who is a regular dealer in the contraband article and several abkari cases were pending against him in various police stations. In fact P.W.5 concedes this fact. 11. The evidence of P.W.2, according to the learned counsel for the appellants, does not go well with the evidence of P.W.5 with regard to the search conducted in the house of Mohanan. 12. As already noticed, the accused have a case that the contraband articles were that of Mohanan and they have been falsely implicated. P.W.5 has admitted that he had reliable information that Mohanan was dealing with the contraband articles. P.W.5 would say that on the date of the incident, while returning to the police station along with the contraband articles and the accused persons, they conducted a search of the house of Mohanan also in the presence of independent witnesses. However, P.W.2 has no such case. He is definite that while returning to the police station, no search was conducted in the house of Mohanan. There is material 10 Crl.Appeals.997 & 1450/2012. contradiction in this regard. It is also significant to notice that Mohanan was initially shown as the third accused and for reasons unknown he was later removed from the array of accused. 13. Even assuming that the above infirmity is not so serious or material so as to make the prosecution story open to serious doubt, there is a legal infirmity in the proceedings. Though P.W.5 says that the remand report says about the forwarding note, no documents are produced to show that there was a forwarding note by the investigating officer or the detecting officer to the court concerned forwarding the samples and requesting that the samples be sent for chemical examination. 14. It may be apposite here to refer to the decision reported in Joseph v State of Kerala (2009(4) KHC 537). In the said decision, it was observed as follows: “18. Yet another infirmity in the prosecution case is that there is no request forwarding note either Crl.Appeals.997 & 1450/2012. 11 produced or marked to indicate that a request was made to the Magistrate to send the sample bottle to the chemical examiner for analysis. P.W.6 who conducted the investigation, has no case that he had made any such request or had filed any forwarding note. Likewise, P.W.1 also has no case that he had made a request to the Magistrate to send the sample bottle to the chemical examiner. Ext.P4 certificate of chemical analysis dated 24.11.1997 is relied on by the prosecution to show that the sample bottle was duly despatched to the chemical examiner for analysis. In the absence of any forwarding note or requisition, it is not explained as to how the Magistrate forwarded a sample bottle to the chemical examiner as per his covering letter dated 19.8.1997 referred to in Ext.P4 certificate. Even the office copy of the covering letter has not been produced. The thondi section clerk who was the custodian of the properties before the Magistrate, was not examined to prove matters such as the date of receipt of the property before the Magistrate, the condition in which those properties were received in court including the fact whether a sample bottle was received and if so, whether the seals if any on such bottle were in tact, the date of despatch of the sample to the chemical examiner and the nature of the custody of the sample bottle until then. Crl.Appeals.997 & 1450/2012. 12 The prosecution can succeed in securing a conviction against the appellant only if it is shown that the sample which was subjected to chemical analysis as evidenced by Ext.P4 certificate was the very same sample which was drawn from the bulk quantity of contraband liquor allegedly held by the accused and which after change of hands, eventually reached the hands of the chemical examiner.” 15. In the case on hand, like in the decision cited above, neither the copy of the forwarding note nor any other document to show that the forwarding note was sent to the court is produced by the prosecution. Like in the reported decision, no witness was examined and all the infirmities pointed out in the reported decision applies to the facts of the present case. 16. Though the point may look technical, it has been held to be a serious omission by this court in the decision cited above. The principle laid down in the above decision applies to the facts of the present case. If that be so, 13 Crl.Appeals.997 & 1450/2012. the finding of guilt entered into by the court below cannot be sustained. In the result, these appeals are allowed, the conviction and sentence against the appellants for offences punishable under Sections 8(1) and 8(2) of Abkari Act are set aside and they are held not guilty of the said offences. They stand acquitted of the said charge. Bail bond executed by the first accused shall stand cancelled and he is set at liberty. As far as the second accused is concerned, if he is in custody, he shall be released forthwith if not wanted in any other case. P. BHAVADASAN, JUDGE sb.