SAIMY v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **CRL.A.No.1098 of 2006** **AGAINST THE JUDGMENT IN SC 432/2005 of THE COURT OF THE SPECIAL JUDGE FOR (NDPS ACT CASES)/ADDITIONAL SESSIONS COURT, THODUPUZHA** ## **APPELLANT/ACCUSED:** **SAIMY, S/O GEORGE, MARUTHUMPARACKAL VEEDU, PANIKKANKUDY KARA,, KONNATHADY VILLAGE.** **BY ADVS. SRI.T.J.MICHAEL SRI.P.NOOR SAMIR** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY SMT.SHEEBA K K** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.07.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MARY JOSEPH, J --------------------------------------------------Crl.A.No.1098 of 2006 --------------------------------------------------Dated this the 12[th] day of July, 2018** ## **J UD G M E N T** The appeal on hand is directed against judgment dated 10.05.2006 of the Additional Sessions Court (NDPS), Thodupuzha (for short 'the court below') in S.C.No.432/2005. The appellant is the first accused in the said case. He was tried by the court below for the offence under Section 8(1) punishable under Section 8(2) of the Kerala Abkari Act (for short 'the Act'). He was convicted and sentenced to undergo simple imprisonment for six months and pay fine of Rs.1,00,000/- and in default to undergo simple imprisonment for six months. The 2[nd] accused was found not guilty for the offence under Section 8(2) of the Act and was acquitted under Section 235(1) Cr.P.C. Aggrieved by the said judgment of conviction and sentence the first accused has approached this Court in the captioned appeal. For the sake of convenience, the parties to this appeal are referred to hereinafter as the accused and the complainant. 2. Both sides were heard on their rival contentions. Sri.T.J.Micheal, the learned counsel for the accused has Crl.ANo.1098 of 2006 -3- contended that there was a delay of eight days for the properties seized from the spot to reach the court. According to him, PW7 had detected the case and conducted search and seizure of the properties from the spot. PW7 had also prepared the property list and forwarding note and forwarded the properties to the court. It is contended by the counsel that when examined before the court, PW7 failed to explain the reason for belated production of properties before the court. It is contended by the counsel that the trial in the case is vitiated for the reason. 3. It is contended by the learned counsel secondly that the officials proceeded to the spot after getting reliable information that the 1[st] accused was keeping arrack for sale unauthorisedly in a shop belonging to him. According to the learned counsel, in such circumstances, PW7, the recipient of the information was bound to reproduce the same into writing and should have forwarded the same to the nearest Magistrate to obtain a search warrant to enable him to conduct the search in the shop of the 1[st] accused. It is submitted by the learned counsel that PW7 while being examined has stated that a search memo was prepared by him and forwarded to the court but, such a document is not produced and marked in evidence. The Crl.ANo.1098 of 2006 -4- third contention raised by the learned counsel was that PW3 and PW4 had been examined by the prosecution as attestors to the search memorandum but, both of them turned hostile by denying the factum proposed to be proved through them by the prosecution. The learned counsel contended that the search memo allegedly prepared was not actually prepared and the deposition of PW7 that search memorandum was prepared by him and forwarded to the court prior to holding search at the shop turned totally incredible when such a document is not forthcoming in evidence. According to the learned counsel, the search allegedly held by the prosecution and the detection of the offence and the consequent seizure of the property from the spot suffers for violation of mandatory requirements contemplated under Sections 31 and 36 of the Act and accordingly the prosecution case is vitiated. 4. Per contra, the learned Public Prosecutor Smt.Sheeba K.K submitted that PW5 and PW7 corroborate in their versions about the prosecution case. According to her the witnesses admitted during their examination that a search memorandum was prepared and forwarded to the court. Therefore, the non availability of such a document in evidence will not materially affect the prosecution case. Accordingly, she pressed for Crl.ANo.1098 of 2006 -5- confirmation of the judgment under challenge. 5. In the backdrop of the rival contentions raised as above, it has become incumbent upon this Court to evaluate the evidence in full to see the merits involved. The prosecution had examined witnesses as PW1 to PW8, marked documents as Exts.P1 to P12 and material objects as MO1 to MO3. PW7 is the Sub Inspector of Police, Vellathooval Police Station, to whom information about alleged sale of arrack was transpired. He had deposed strictly in tune with the prosecution case. According to him, the information received was reduced into writing before proceeding to the spot. He stopped the jeep at a distance of 20 meters away from the shop belonging to the 1[st] accused. In the presence of two witnesses, a search memorandum was prepared therefrom. He caused the witnesses to put their signature in the search memorandum and sent the same through a Police Constable who was in the team. Thereafter, he went to the shop and a search was held therein in the presence of independent witnesses. He found a bottle of 375 ml, kept concealed among the jaggery bags kept inside the shop. It was recovered therefrom and in the examination held was found to contain 70 ml liquor. He smelled and tasted the liquor and convinced the same as arrack. He had drawn sample Crl.ANo.1098 of 2006 -6- from that arrack. One glass was also found there. The bottle containing the arrack, the sample drawn therefrom and the glass were sealed and seized. The accused was arrested from the spot, after preparing an arrest memo. He had affixed seal on the properties seized. A seizure mahazar was prepared and caused the witnesses available there to sign it. Thereafter the accused and the properties seized from the spot, were produced before the Vellathooval the police station, wherefrom Crime No.120/2003 was registered. Property list and forwarding note were also prepared and the accused, the FIR and the mahazar, were forwarded to the court on 29.05.2003, the day following the date of seizure. The remnant liquor and the sample seized from the spot were forwarded to the court after eight days on 05.06.2003. Ext.P9 is the property list dated 05.06.2003 and the production of the properties before the court after eight days is well evidenced therefrom. Explanation is not furnished by PW7 for the delay. PW7 has not stated anything about safe custody of the properties for those eight days. On a scrutiny of the version of PW7 it is also revealed that evidence has not been tendered by him to establish that the property during the period of delay was kept by him in his safe custody. This Court had a glance at Ext.P1 seizure mahazar, Crl.ANo.1098 of 2006 -7- which was prepared from the spot. The seizure mahazar does not describe about affixture by PW7 of a personal seal on the properties from the spot. PW7 has also not spoken during examination before the court that a personal seal of him was affixed on the properties at the time of seizure from the spot. As an abkari officer, PW7 is bound to forward the properties after its seizure to the court without unnecessary delay. If he did not produce the same within a reasonable time he is bound to explain the reason for the delay by proper and cogent explanation. In the case on hand it is evidenced from the version of PW3 that he failed to state any reason for the delay. He has also not stated anything about the safe custody of the properties during the period prior to its production before the court. Therefore, the case of the prosecution suffers from want of cogent explanation for the delay which definitely has an adverse impact on the case of the prosecution. 6. PW7 during examination has spoken that he had prepared a search memorandum from the vehicle before reaching the spot in the presence of two witnesses, who were examined before the court below as PW3 and PW4 and obtained their signature therein. But, as stated earlier, the search memorandum is not available in evidence adduced by the Crl.ANo.1098 of 2006 -8- prosecution. Apart from the above, two witnesses, who according to PW7, had put signatures in the search memorandum denied the attestation and thus turned hostile while being examined before the court. Therefore, this is a case wherein search memorandum is not marked in evidence. 7. In the circumstances the question of utmost importance for consideration is whether the solitary oral evidence tendered by PW7 about preparation of the search memorandum can be relied on to conclude that prosecution had complied with Sections 31 and 36 of the Act. 8. According to PW7 immediately after preparation of the search memorandum, it was sent to the court through a police constable, who was cited in the witness list of the prosecution as CW6 Therefore, CW6 is the right person to say about the production of search memorandum before the court. He was not examined by the prosecution. For want of search memorandum in evidence, it is unsafe to draw a conclusion that it was prepared as contented by PW7 and thus the requirements to make the search and seizure legal and valid as contemplated under Sections 31 and 36 of the Act have been complied with. The learned counsel for the accused has placed reliance on **K.L.Subhayya v. State of Karnataka (AIR 1979 SC 711)** to Crl.ANo.1098 of 2006 -9- substantiate his argument that non-compliance of the requirements as contemplated by the provisions referred to supra will be illegal and will have the impact of vitiating the trial. 9. The provision dealt with in the case cited supra is Section 54 of Mysore Excise Act (21 of 1996), one corresponding to Section 100 of the Code of Criminal Procedure and Sections 31 and 36 of the Act. In the case cited supra, the search of the car of the accused was done on the basis of a reasonable belief that an offence under the Act was committed. The High Court had observed in the case that Section 54 is totally irrelevant and arrived at a conclusion about the guilt of the accused despite the fact that search was conducted in violation of Section 54 of the Act. The finding of the High Court was reversed by the Apex Court stating that : “We are satisfied that there has been a direct non-compliance of the provisions of S.54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him.” 10. Therefore, the Apex Court had found in the case cited supra that non-compliance of the requirements, make the search illegal and the accused is not liable to be convicted for Crl.ANo.1098 of 2006 -10- seizure of arrack based on an illegal search. 11. Undoubtedly the search held in the case on hand suffers for non-compliance of mandatory requirements as contemplated by the provisions of the Act to make it a legal one. Therefore, the seizure of the properties by PW7 at the shop of the accused cannot be said to have legal basis. For the very reason, the finding of guilt of the accused for the offence under Sections 8(1) punishable under section 8(2) of the Act and the conviction and sentence imposed will not sustain and are liable to be reversed. In the result, the appeal succeeds and is allowed. The finding of guilty of the accused for the offence under Section 8(1) and the order of conviction and sentence imposed under Section 8(2) of the Act by the judgment under challenge are set aside. The bail bond of the accused is cancelled and he is set at liberty forthwith. Sd/- **MARY JOSEPH Judge** ab