Remony v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940** ## **CRL.A.No. 1021 of 2006** **SC 441/2001 of ADDL.SESSIONS COURT.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA** **CP 106/2000 of JUDICIAL MAGISTRATE FIRST CLASS-II,NEYYATTINKARA** **APPELLANT/ACCUSED:** **REMONY, D/O.ELSY, OLIPPUVILA VEEDU, POONKULAM,, MUTTAKKADA DESOM, KALLIYOOR VILLAGE,, NEYYATTINKARA.** **BY ADV. SRI.G.SUDHEER** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **PP.SRI.K.N. SWAMIDAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON 16/01/2019 PASSED THE FOLLOWING:** 2 **CRL.A.No. 1021 of 2006** ## **JUDGMENT** The appellant is the accused in S.C. No. 441 of 2001 on the file of the Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara, for an offence punishable under Section 58 of the Abkari Act. 2. The case of the prosecution is as follows: On 22.01.1999, while the Sub Inspector of Police, Thiruvallam was conducting patrol duty found the appellant in possession of 8 litres of arrack in a can and 600 ml of arrack in a bottle. On the side of prosecution, PW1 to PW5 were examined. Exts.P1 to P7 and MO1 to MO3 were marked. No defence evidence was adduced on the side of the appellant. After evaluating the entire evidence, the learned Sessions Judge convicted the appellant / accused under Section 58 of the Abkari Act and sentenced to undergo R.I for three years and to pay a fine of Rs.1,00,000/- in default to undergo R.I for three months. Highly aggrieved by the conviction and sentence, the appellant has filed the present appeal stating that the lower court has not considered the fact that there was delay in producing the contraband articles before court. Further, there is no independent witnesses and conviction based on official witnesses alone is not enough to enter into a conviction. Further, the authenticity of the sample sent for chemical 3 ## **CRL.A.No. 1021 of 2006** examination is also not proved. On the grounds as urged above, the appellant prays for setting aside the conviction and sentence imposing in S.C.No.441 of 2001 on the file of the Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara. 3. The main case of the prosecution is that while CW8, the Sub Inspector of Police, Thiruvallam police station, on 22.01.1999, while he was conducting patrol duty, got an information that arrack being sold from Poonkulam Oleev vila by one Ramani @ Thankam and suddenly he reached the place of occurrence and found the appellant in possession of 750 ml bottle with 600 ml of arrack in it and a glass tumbler of 200 ml capacity and keeping a 10 litre can with 8 litres of arrack in it placed near where she stood and she was intercepted along with contraband articles by woman head constable who was a party to the patrol duty. On questioning, the appellant has admitted that the bottle in her possession contained arrack and she was eking her livelihood by retailing the same. Thereafter, CW8, Sub Inspector of Police, Thiruvallam police station seized the thondi articles, after complying with legal formalities and got the appellant arrested with the aid of the Women Head Constable. Then a case was registered against the appellant and the F.I.R was lodged before the Judicial Magistrate of the 1[st] Class II, Neyyattinkara. On the side of the prosecution, PW1 to PW5 were examined. PW5 is the Thondi Section Clerk of the concerned Magistrate's Court, who was summoned as per 4 ## **CRL.A.No. 1021 of 2006** the order on the petition filed under Section 311 of the Code of Criminal Procedure and the remaining charge witnesses were given up by the learned Public Prosecutor. Ext.P1 is the Mahazar, Ext.P2 is the F.I.R, Ext.P3 is the Arrest Memo, Ext.P4 is the Remand Report, Ext.P5 is the Thondi List (151 A Form), Ext.P6 is the Chemical Analysis Report and Ext.P7 is the copy of relevant page of Thondi Register. MO1 is the jerrycan, MO2 is the bottle and MO3 is the glass tumbler which were seized from the possession of the appellant. After closure of the evidence, the appellant was questioned under Section 313 Cr.P.C and she has denied all the incriminating circumstances found against her. Thereafter, she was heard under Section 232 of the Cr.P.C and further there was no ground to acquit her at that stage. Thereupon, case was posted for defence evidence but no evidence was adduced. Matter was heard and ultimately, the lower court has convicted the accused. 4. Now, the main grievance of the appellant is that the alleged contraband articles seized from the possession of the appellant was produced before the court not in time. There was a delay in producing the same before the court. Therefore, the question of tampering of the sample is doubted. The appellant is a lady of 31 years and the alleged contraband articles were seized from her possession on 22/01/1999. According to the prosecution, she was in possession of illicit arrack with a quantity of 8.6 litres at the place of occurrence and the police party intercepted her and she was arrested from the spot along with 5 ## **CRL.A.No. 1021 of 2006** the contraband articles. There was an argument on the side of the appellant counsel that the thondi articles were not produced before the court in time and there was a gross delay in producing the same. In order to prove this fact, prosecution has filed an application under Section 311 of the Cr.P.C to summon PW5 who was a thondi clerk of the concerned court. PW5 deposed that as per Ext.P5 thondi list, he has received the thondi items in this case and entered the same in Page No.32 of the thondi register, which was marked as Ext.P7. As per his evidence, after obtaining the order from the concerned Magistrate, he himself had extracted sample liquid from the jerrycan and forwarded the same to the chemical examiner for analysis, for which there is endorsement in Ext.P7. The question to be considered is whether there is any evidence to prove that the contraband articles alleged or seized from the possession of the appellant was the same which was produced before the concerned Magistrate Court and whether PW5 has extracted the sample from the jerrycan alleged to have been seized from the possession of the appellant. PW1 and PW2 were attestors to Ext.P1 seizure mahazar. On examination, they did not support the prosecution case. So they were treated as hostile to the prosecution. In fact, PW1 has denied her signature but PW2 has admitted his signature. Even after cross examination of PW1 and PW2, nothing was brought out to support the case of the prosecution. PW3, the Woman Head Constable of the Women's Police Station at 6 ## **CRL.A.No. 1021 of 2006** Thiruvananthapuram, has deposed that she had accompanied the Sub Inspector of the Thirupuram police station in the patrolling party, in which, on 22/01/1999, she had found the appellant herein and at the instance of the leader of the patrolling party, the Sub Inspector, she had caused the arrest of the appellant and she had witnessed the occurrence that the appellant was having in her conscious possession and control about 8 litres of illicit arrack in a can and about 600 ml of illicit arrack in a bottle and that the appellant was holding a glass tumbler also. She has also deposed that certain amount of cash was also found in the possession of the appellant and that was also seized from her, being sale proceeds. According to her, the Sub Inspector has prepared Ext.P1 mahazar of the occurrence and has proceeded to the police station along with the accused and contraband articles. She has identified the accused / appellant who was standing in the dock and has also identified MO1 to MO3, the contraband articles produced before the court. There was no ground to disbelieve the evidence of PW3, who has arrested the appellant / accused from the spot. PW4 is the Sub Inspector, who has also deposed in terms of the prosecution case. According to him, he has prepared Ext.P4 remand report and Ext.P5 thondi list and also submitted the Forwarding Note for the purpose of extracting sample from out of the thondi items produced as per Ext.P5 and for forwarding it to the Examiner for chemical analysis. Ext.P6 is the chemical examination report. It was also deposed by PW4 7 ## **CRL.A.No. 1021 of 2006** that contraband articles were produced before the Court on 27/01/1999. The alleged occurrence was on 22/01/1999. According to him, due to urgent duties from 22/01/1999 to 26/01/1999 in connection with the Republic Day Celebrations, he could not produce the contraband articles in time, immediately after seizure of the same from the possession of the appellant / accused. Then during examinations of PW3 and PW4, nowhere it was stated by them that the contraband articles which were seized from the possession of the appellant / accused, was sealed properly by affixing label containing the signature of detecting officer, independent witnesses and the appellant / accused. When the appellant denied to have seized contraband articles from her possession, definitely the burden is heavy on the prosecution to substantiate the fact that MO1 to MO3 contraband articles were seized from the possession of the appellant / accused. Apart from the production of MO1 to MO3, no evidence was let out to prove that those items were directly seized from the possession of the appellant / accused. Even from the oral evidence of PW3 and PW4, it was not revealed that these contraband articles containing illicit arrack was properly sealed at the presence of the appellant / accused by affixing label containing the signature of the detecting officer, appellant as well as independent witnesses. Furthermore, PW5, the thondi clerk has deposed that he himself has extracted the sample from the liquid contained in the jerrycan, 8 ## **CRL.A.No. 1021 of 2006** produced before the court, about five days after the date of detection of the seizure of the contraband items. In fact, the appellant was charged under Section 58 of the Abkari Act and the punishment of the said offence will be upto 10 years and also with fine not less that one lakh Rupee. When the punishment is very severe, the prosecution must be very careful while dealing with the case charged against the appellant / accused. Eventhough PW3 has stated that MO1 jerrycan was found in the nearest proximity of the appellant and that she herself was holding MO2 bottle, from which she might have been pouring arrack and that she had MO3 glass tumbler with her and that certain amount of cash was also collected, but nothing was brought out to establish that these contraband articles were seized from the possession of the appellant. 5. It has been argued by the learned counsel for the appellant that the alleged contraband articles seized from the possession of the appellant was produced after five days. That itself is sufficient enough to claim benefits of doubt that possibility of tampering of the contraband articles involved in to be presumed in favour of the appellant and the appellant is entitled to get acquittal. It was held in **Alex v. State of Kerala [2003 (1) KLT SN 12]** that in paragraph 49 of the Manual that a report of all searchers or arrest should be sent to the Assistant Excise Commissioner and to the Magistrate concerned within 24 hours. It is also gatherable from paragraph 77 that whenever 9 ## **CRL.A.No. 1021 of 2006** contraband liquor is produced in a Court, the Court may be requested to send samples thereof to the Chemical Examiner. When there is doubt with regard to the authenticity of the sample that reached the Laboratory, the accused is entitled to the benefit of doubt. It is not just and proper to deny the benefit of doubt to the petitioners merely on the ground that they are charged with a grave offence. 6. It was held in _**Narayani v. Excise Inspector**_ [2002 (3) KLT 725] wherein it has held that if no evidence to prove the proper custody of the residue and sample, there may be a case of tampering with sample and residue and _**Rajendran v. State of Kerala**_ [2007 (1) KLT 971] that wherein it has held that the proof of proper custody is mandatory. 7. PW4 has explained the delay in producing the contraband articles before the court. According to him, he was busy with the Republic Day Celebrations so that he could not produce the contraband articles in time. But such an explanation is not sufficient enough to find that there was no probability of tampering the contraband articles. So the delay explained by PW4 is not justifiable and the explanation cannot be accepted also. In fact, there is absolutely no evidence to prove that the contraband articles were directly seized from the possession of the appellant. Apart from that, the contraband articles were produced before the court after five days. Furthermore, the sample was taken by PW5, thondi clerk of the 10 ## **CRL.A.No. 1021 of 2006** concerned Magistrate court and sent it to the Chemical examiner's laboratory, so the delay in producing the contraband articles further the lack of labels on the MO1 jerrycan with contraband articles is sufficient enough to establish that the prosecution has failed to prove the charge as levelled against the appellant / accused. In fact, I have gone through the arguments and documents, I do not find that the prosecution has succeeded in establishing the guilt of appellant. The detecting officer has not affixed any labels including the signature of the appellant on the material objects. Going through the evidence, I find that the prosecution has miserably failed to establish the case. Therefore, the finding rendered by the Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara is hereby set aside and the appellant is acquitted. In the result, the conviction and the sentence passed against the appellant in S.C.No.441 of 2001 passed by the Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara is hereby set aside. The bail bond executed by her shall stand cancelled and she is set at liberty forthwith. Sd/- **ANNIE JOHN** **JUDGE** rsr