Sajeev Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **THURSDAY, THE 26TH DAY OF SEPTEMBER 2013/4TH ASWINA, 1935** **CRL.A.No. 563 of 2005 ( ) --------------------------** **AGAINST THE JUDGMENT IN SC 242/2002 of ADDITIONAL DISTRICT & SESSIONS JUDGE (AD HOC), FAST TRACK COURT-1, PATHANAMTHITTA, DATED 17-03-2005** **APPELLANT(S)/ACCUSED: -----------------------** **SAJEEV KUMAR, S/O.BHASKARAN NAIR, AGED 47 YEARS, RESIDING AT MAMPARATHEKKETHIL, VAZHAMUTTAM MURI, VALLIKODE VILLAGE KOZHENCHERRY TALUK.** **BY ADV. SRI.V.SETHUNATH** ## **RESPONDENT(S)/COMPLAINANT:** **---------------------------** **STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, KONNI (OR.NO.62/1998 OF KONNI EXCISE RANGE) REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR ADV.SMT.M.T.SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 563 of 2005** **----------------------------------------** Dated this the 26[th] day of September, 2013 ## **J U D G M E N T** Challenging the judgment dated 17.3.2005 in S.C.No.242 of 2002 of the court of the Additional District and Sessions Judge (Adhoc), Fast Track Court-I, Pathanamthitta, the appellant/the accused therein preferred this appeal since he is convicted and sentenced for the offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 20.11.1988 at 5 p.m. when the C.I. Of Pathanamthitta Excise Enforcement and Anti Narcotic Special Squad and party were on patrol duty, they had found the accused walking through Thazhoorkadavu-Poomkavu road in front of the house of Edatharakalickal Smt.Ponnamma keeping in his possession and carrying eight litres of rectified spirit in a black cannas. According to the prosecution, on seeing the excise party, the accused Crl.A.No. 563 Of 2005 :-2-: had left the scene of occurrence leaving the cannas and thus, according to the prosecution, the accused has committed the offence punishable under Section 55(a) of the Abkari Act. 3. Based upon the above allegation, crime and occurrence report No.62/98 was registered in the Konni Excise Range for the said offence and on completing the investigation, a charge sheet was filed in the Judicial First Class Magistrate Court-II, Pathanamthitta wherein C.P.No.120 of 2001 was instituted and subsequently, by order dated 1.7.2002, the learned Magistrate committed the case to the Sessions Court wherein the case is numbered as S.C.No.242 of 2002 and made over the same to the Assistant Sessions Court, Pathanamthitta and later, after the formation of Fast Tack Courts in the district, the same was transferred to the present trial court for disposal. 4. On the appearance of the accused, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable under Section 55(a) of the Crl.A.No. 563 Of 2005 :-3-: Abkari Act which when read over and explained to the accused, he denied the same and pleaded not guilty and thus the trial was further proceeded during which Pws.1 to 6 were examined and Exts.P1 to P7 were marked from the side of the prosecution. MO1 can is also identified and marked as material object. From the side of the defence, besides marking Exts.D1 and D2, DW1 was examined. The trial court finally found that the prosecution has succeeded in establishing its case against the accused keeping in possession of and transporting 8 litres of rectified spirit in MO1 cannas as alleged and thus, the accused was found guilty and he is convicted for the offence under Section 55(a) of the Abkari Act. On such conviction, the accused is sentenced to undergo rigorous imprisonment for a period of four years and also sentenced to pay fine of rupees one lakh and in default, he is directed to undergo simple imprisonment for two years. Set off is allowed. Challenging the above order of conviction and sentence, the present appeal is filed at the instance of the accused. ## Crl.A.No. 563 Of 2005 :-4-: 4. Heard Sri.V. Sethunath, learned counsel for the appellant and Smt.M.T.Sheeba, learned Public Prosecutor for the State. 5. To prove the occurrence and seizure of the contraband article, the prosecution has examined Pws.1 to 4 out of which Pws.3 and 4 are independent witnesses, who are attestors to Ext.P1 mahazar prepared by PW1, but they turned hostile to the prosecution. So, in order to prove the above allegation, the prosecution very much placed reliance upon the evidence of PW1, who is none other than the detecting officer, the C.I. Of Excise and PW2, the Preventive Officer who accompanied PW1 at the time of the alleged detection of the crime. When PW1 was examined, Ext.P1 mahazar is marked through him and he had also identified MO1 can. PW2 also supported the prosecution case and he also identified Ext.P1 and MO1 can. During the examination of Pws.1 and 2, they had given evidence i.e., on 20.11.1998 while they were on patrol duty and while coming from west to east through Thazhoorkadavu-Poomkavu Road, they had Crl.A.No. 563 Of 2005 :-5-: found the accused running towards them from the opposite direction through the very same road in front of Edatharakalickal Smt.Ponnamma's house and he was carrying a black can in his right hand. On seeing the Excise Party, the accused got perplexed and attempted to retreat and at that time, the Excise Party had gone near to him, stopped the jeep and got down and at that time leaving the can in the road, the accused took his heels. According to Pws.1 and 2, MO1 can left by the accused has been seized and inspected in the presence of independent witnesses and the can was found to be contained 8 litres of rectified spirit and they have realised that the content of the can was rectified spirit by tasting and smelling. Both Pws.1 and 2 were unanimous in their evidence that after that, they had closed the can, securely fastened, sealed and labelled MO1 with 8 litres of rectified spirit in it. According to them, MO1 can was seized by preparing a detailed mahazar, which is marked as Ext.P1 and thereafter, they returned and entrusted the contraband article and Crl.A.No. 563 Of 2005 :-6-: documents with the Range Inspector of Konni Excise Range. 6. As I indicated earlier, the two independent witnesses examined as Pws.3 and 4, who are attestors to Ext.P1 mahazar, turned hostile. 7. Another official witness examined by the prosecution is PW5, the investigating officer and PW6 who laid the charge. When PW5 was examined, Ext.P4 chemical analysis report, Ext.P2 and P3, the portion of the deposition of Pws.3 and 4 are marked. Similarly when PW6 was examined,Ext.P5 crime and occurrence report, Ext.P6 property list and Ext.P7 report dated 21.11.1998 are marked. From the side of the defence, Ext.D1 forwarding note has also got marked through PW6. These are evidence referred to and relied on by the learned Judge in support of his finding and to convict the appellant. 8. Mr.V.Sethunath, learned counsel for the appellant submitted that though Cws.3 to 6 were cited as charge witnesses, they were given up without assigning any reason which will go against the ## Crl.A.No. 563 Of 2005 :-7-: prosecution. It is also the contention of the learned counsel that regarding the sample, which is the basis of Ext.P4 chemical examination certificate, absolutely there is no legal evidence. In order to substantiate the above fact, learned counsel submitted that PW1 or PW2 has no claim that they had drawn sample from MO1 from the spot. It is also pointed out that though the prosecution has not produced the forwarding note/Ext.D1, the same was marked at the instance of the defence, which shows that though as per Ext.P7 report, it was prepared by PW6, PW6 denied the same. So, according to the learned counsel, absolutely there is no evidence as to who had drawn the sample and according to the learned counsel, the said fact itself is sufficient for an acquittal of the appellant/accused. It is also the contention of the learned counsel that the accused was not shown to any of the prosecution witnesses to establish the identity of the accused. So, it is the submission of the learned counsel that the finding arrived on by the court below and the conviction recorded Crl.A.No. 563 Of 2005 :-8-: against the appellant are liable to be set aside. 9. On the other hand, the learned Public Prosecutor strenuously submitted that Ext.D1 forwarding note shows that the sample was taken and the same is confirmed by Ext.P4 chemical report. After taking me through the deposition of PW1, the learned Public Prosecutor submitted that at the relevant point of time, the sample being drawn at the instance of the court and in the present case also, the sample was drawn by the court and therefore, the argument advanced by the counsel for the appellant are unsustainable. Hence, the learned Public Prosecutor submitted that no interference is warranted when the judgment of the trial court and the appeal deserves no consideration and is liable to be dismissed. 10. I have carefully considered the rival contentions advanced by the counsel for the appellant as well as the learned Public Prosecutor and I have gone through the deposition of witnesses and materials on record. Crl.A.No. 563 Of 2005 :-9-: 11. In view of the rival contentions and in the light of the evidence and materials on record, the question to be considered is whether the prosecution has succeeded in proving that the accused was found in possession of rectified spirit as alleged and whether the findings of the court below are correct and legal to that effect. 12. Having regard to the facts and circumstances involved in the case, according to me, the contention raised by the learned counsel for the appellant about the absence of evidence regarding the sample is a crucial point as far as the abkari offence is concerned in view of the various provisions contained in the Abkari Act. A Division Bench of this Court reported in **Ravi** v. **State of Kerala** [2011(3) KLT 353] has held that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from accused which had reached the hands of Chemical Examiner in a fool proof condition. In the light of the arguments advanced by the learned counsel for the appellant in this regard, the further question to be considered in the Crl.A.No. 563 Of 2005 :-10-: present case is whether the prosecution has succeeded to show that the sample, which formed the basis for the chemical analysis as per Ext.P4 Chemical Examination Certificate, is drawn from the contraband article allegedly seized by PW1 from the possession of the appellant/accused on 20.11.1998. I have already referred to the evidence of Pws.1 and 2 and Ext.P1 mahazar. Neither in Ext.P1 mahazar, which is a contemporary document nor in the deposition of Pws.1 and 2, the prosecution has got a case that Pws.1 and 2 had drawn sample from MO1 can from the place of occurrence and the seizure of the same from the accused. As rightly pointed out by the learned Public Prosecutor, according to PW1, at the relevant point of time, there was no practice of drawing sample by the authorities, who seized the contraband article and the same is being done in the court. If that be so, according to me, it was incumbent upon the prosecution to produce all possible evidence to show that the sample was drawn at the instance of the court properly and carefully. But, absolutely no Crl.A.No. 563 Of 2005 :-11-: evidence is adduced in the present case in this regard. There is no evidence as to when the sample was drawn and who had drawn the sample, what was the safety measure adopted for a proper and careful sampling and what are the preventive measures adopted for tampering the samples etc. So, the absence of evidence on those aspects persuaded this Court to come into a conclusion that no sample was drawn properly. A learned Judge of this Court in the decision reported in **Nalinakshan** v. **State of Kerala** [2012(4) KLT 575] and in the decision reported in **Lalitha** v. **State of Kerala** [2012(1) KLT 550] has held that in the absence of any evidence as to who took the sample, no reliance can be given to the report of the Chemical Examiner to conclude that the liquid is arrack and it is further held in the later decision that in the absence of evidence as to the taking of sample and its following steps, the conviction is bad. So, according to me, following the above three decisions cited supra, the appellant is entitled to get a clear acquittal. Crl.A.No. 563 Of 2005 :-12-: 13. In this juncture, it is also relevant to note that though the prosecution has not produced the forwarding note, the request for sending the sample for chemical analysis, Ext.D1 is marked at the instance of the defence. Ext.D1 is produced along with Ext.P7 report. Though PW6 admitted his signatures in Exts.P5 to P7, he had categorically denied that he signed in Ext.P1. So about the forwarding note for sending sample, there is no consistent and reliable evidence. It is further relevant to note that if the sample is taken at the instance of the court as deposed by PW1, no explanation as to how it is mentioned as 180 ml. of sample of spirit against column No.4 of Ext.D1. The forwarding note in the above form is usually being forwarded to the court, when the authority, who issued the forwarding note, is sure that the quantity of sample drawn in that particular case is definite. So Ext.D1 pre-supposes that the sample was drawn before the contraband article reaches the court. No official witness of the prosecution is examined and no clarificatory evidence is given Crl.A.No. 563 Of 2005 :-13-: regarding the quantity of sample mentioned as 180 ml. against column No.4 in Ext.D1. It is apposite to see that in Ext.P4 chemical analysis report the quantity of sample mentioned as 180 ml. which is against Ext.D1 forwarding note. So, there is clear discrepancy in the quantity of contraband article drawn in the present case, when compared with Ext.P4 chemical analysis report. The said contradiction and discrepancy is also not clarified by the prosecution. So, on that count also, the benefit of doubt goes in favour of the appellant/accused. In the light of the above discussion and the evidence and materials referred to above, I am of the view that the prosecution has miserably failed to prove the allegation against the appellant/accused beyond reasonable doubt, particularly their failure in the absence of any satisfactory evidence about the drawing of sample and consequently, the benefit of doubt goes in favour of the appellant. Accordingly, the finding and conviction recorded by the learned Judge of the trial court against the appellant/accused are set aside. Crl.A.No. 563 Of 2005 :-14-: In the result, this appeal is allowed setting aside the judgment dated 17.3.2005 in S.C.No.242 of 2002 on the file of the court of Additional District and Sessions Judge (ADHOC-II), Pathanamthitta and the appellant/accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him shall stand cancelled and he is set at liberty. **V.K.MOHANAN, Judge** MBS/ Crl.A.No. 563 Of 2005 :-15-: