Sajeevan @ Shaji and Manikandan @ Sudheer v State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940 ## CRL.A.No. 1101 of 2005 AGAINST THE ORDER/JUDGMENT IN SC 176/2001 of ADDITIONAL SESSIONS COURT, FAST TRACK-I, ALAPPUZHA DATED 30-06-2005 ## APPELLANT/ACCUSED 3 &4: - 1 SAJEEVAN @ SHAJI, S/O. RAJAN, AGED 32, KAZHAKUDAN VEEDU, NORTH OF CATTLE FEEDING, FARM, KONKUZHY, PARIYARAM, THRISSUR. - 2 MANIKANDAN @ SUDHEER, S/O.RAMAKRISHNAN, AGED 32, KOYATTUKULAM VEEDU, NEAR TO PALAKKAD, BY-PASS JUNCTION, PALIYAKKARA, NENMANIKKARA,, THRISSUR. BY ADV. SRI.C.HARIKUMAR ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA. BY ADV. PUBLIC PROSECUTOR SMT.RAHANA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl. A. No.1101 of 2005 -2- ## JUDGMENT The appellants are accused Nos.3 and 4 in SC.No.176 of 2001 before the Addl. Sessions Court (Fast Track No.1), Alappuzha for an offence under Section 55(a) of the Kerala Abkari Act upon a charge sheet filed by the Circle Inspector of Police, Alappuzha North Police Station. 2.The prosecution case is that some persons on 29.05.1999, at about 1.45 p.m. were seen transporting 1201.5 liters of spirit. On further verification, one concealed rectangular tank was detected below the platform of the vehicle. A slip containing the phone number and the name of the first accused was recovered. A statement was given by the 4[th] accused that the spirit was brought for A1, and A5 and A6 were waiting at Kalarcode and thereafter, the Asst. Superintendent of Police, who is the Detecting officer, proceeded to S.D. College and arrested A5 and A6 and a scooter was also recovered. Thereafter, the accused were produced before the court and Crime No.266 of 1999 of Alappuzha North Police Station was registered under Section 55(a) of the Abkari Act. The charge was laid before the Judicial First Class Magistrate Court-I, Alappuzha and it was numbered as CP.No.15 of 2000. Thereafter, it was committed to the Addl. Sessions Court (Fast Track No.1), Alappuzha and it was numbered as SC.No.176/ of 2001. 3. On the side of prosecution, 11 witnesses were examined Crl. A. No.1101 of 2005 -3- as PWs 1 to 11 and Exts. P1 to P19 and MOS 1 to 14 were marked. 4. After hearing the appellants herein, they were found guilty under Section 55(a) of the Abkari Act and convicted thereunder. Aggrieved by the judgment of the court below, this appeal has been preferred on the ground that the Asst. Superintendent of Police, Alappuzha detected the offence, while PW11, the Circle Inspector of Police, registered the FIR and conducted the investigation. So there is a grave illegality vitiating the trial. 5. Another ground was that the prosecution has not adduced any legal evidence to secure conviction of A3 and A4 because PW10, who effected the search and seizure is not an authorized officer empowered to effect seizure. PWs3 and 4 were independent witnesses, who turned hostile to the prosecution. On these grounds as stated above, the appellant prays for setting aside the order of eviction and sentence passed against them in SC.No.176 of 2001 on the files of the Additional Sessions Court (Fast Track No.I) Court, Alappuzha. 6. The crime was registered by Alappuzha North Police Station against the appellants under Section 55(a) of the Abkari Act. The accused Nos.1, 3 and 4, who are the appellants herein were undergone trial and found guilty under Section 55(a) of the Abkari Act and they were sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.1,00,000/- and in default to pay the find, to undergo Crl. A. No.1101 of 2005 -4- simple imprisonment for a further period of six months. Set off to A5 and A6 were allowed. 7. In fact, the first accused in this case is no more. Accused Nos.5 and 6 were acquitted under Section 235(1) of the Code of Criminal Procedure. The 2[nd] accused was absconding in this case. The remaining accused Nos.3 and 4 are the appellants herein. 8. The case of the prosecution is that the accused No.4, deceased first accused and the absconding accused, A2 stands charge-sheeted by the Circle Inspector of North Police Station under Section 55(a) of the Abkari Act. 9. The case of the prosecution is that on 29.05.1999, at about 1.45 p.m., while the Asst. Superintendent of Police (trainee), Alappuzha and police party were on vehicle checking duty on the National Highway near Prince Hotel, Alappuzha, signalled to stop the mini lorry bearing registration No. KL-6-4837 coming from Ernakulam side driven by the 3[rd] accused. Accused No.4 was the cleaner of the said vehicle. Since the vehicle was not stopped, the police party chased and stopped the mini lorry driven by the accused No.3 on the side of “Savakottappalam”. Accused Nos. 3 and 4 got down from the vehicle, ran towards the south after parking it. It was after a chase extending to a distance about 100 metres that accused Nos. 3 and 4 could be apprehended at 2.10 a.m. On the subsequent search, the Assistant Superintendent of Police, found one Crl. A. No.1101 of 2005 -5- concealed rectangular tank below the platform of the vehicle and the tank was checked. The tank contained a liquid of 1201.5 litres which on smelling and tasting was found to be spirit. The Assistant Superintendent of Police also recovered one paper slip containing the name and phone number of A1 documents pertaining to the vehicle and an amount of Rs.2810/- from the cabin of the said vehicle. From out of the spirit found in the said tank, the Assistant Superintendent of Police took three samples each measuring about 500 ml in three bottles of 750 ml. Capacity and the sample bottles were properly sealed. The rest of the spirit were transferred to 12 containers of 100 litre capacity and they were also properly sealed. The Assistant Superintendent of Police then prepared a mahazar to evidence the recovery of spirit from the vehicle involved in this case which was attested by him and the witnesses. The accused No.4 gave additional statement that the spirit was supplied by one Johny from Bangalore and it was brought for A1 and that A5, Muhammed Musthafa, and A6, Vinod who were deputed by A1 for escorting the mini lorry with spirit to Mannar Waiting in front of SD College, Kalarcode. In the light of the disclosure by A4, the Assistant Superintendent of Police along with police party and A3 proceeded to the waiting shed located in front of the SD College and arrested A5 and A6 at 5 a.m. He has recovered a Bajaj Chethak Scooter as per mahazar. He has also recovered the driving licences of A5 and A6 and an amount Crl. A. No.1101 of 2005 -6- of Rs.395 from the box of the scooter. Thereafter, the accused were arrested, the articles were seized and the vehicles were removed to the North Police Station, Alappuzha and the case was registered as Crime No. 266 of 1999 for the offence punishable under Section 55(a) of the Abkari Act. The samples were taken from the spirit recovered from the mini lorry driven by A3 on chemical examination has been proved to be rectified spirit which contained ethyl alcohol. 10. After investigation, charge was laid under Section 55(a) of the Abkari Act. On the side of prosecution 11 witnesses were examined as Pws 1 to 11 and 19 documents were marked as Exts.P1 to P19 and 14 material objects as Mos 1 to 14. After the closure of the evidence, the appellant/accused was questioned under Section 313 Cr.P.C with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and pleaded not guilty to the charges levelled against them. 11. Heard the learned counsel for the appellant and the learned Public Prosecutor. 12. The definite case of the prosecution is that accused Nos. 3 and 4 were intercepted along with a lorry containing 1201.5 litres of spirit and has taken into custody the mini lorry and the scooter, arrested the accused persons in the early hours of 29.05.1999. PW19 was the Asst. Superintendent of Police under training, detected the offence and Crl. A. No.1101 of 2005 -7- recovered the vehicles involved in this case and arrested the accused persons. PW11, the Circle Inspector of North Police Station, registered the FIR and conducted investigation in the case. He has completed the investigation and finally lodged the charge sheet before court. It is evident that the seizure of 1201.5 litres of spirit kept in the concealed tank below the platform of the mini lorry bearing Registration No. KL-64837 driven by A3 along the National Highway in Alappuzha. A3 and A4 are the driver and cleaner of the vehicle respectively. The arrest of A3 and A4 along with vehicle which was in their absolute control at the place, date and hour allegedly by the prosecution is properly proved by the evidence of PWs 8 to 10 and Exts.P4, P9 and P19. It has come out in evidence that PW10, who detected the offence was the Asst. Superintendent of Police (trainee), Alappuzha and he was in charge of North Police Station on the date of seizure. According to the prosecution, he is the empowered Officer under the Abkari Act and therefore, the search and seizure are proper and not vitiated. Ext.P4 mahazar was written by a Head Constable working under PW10 who had arrived at the site of occurrence as per the telephoic message given by PW10. PWs 3 and 4, the attestors to Ext.P4 mahazar are mere tutored witnesses and their evidence is of no consequences. 13. The learned counsel for the appellant has pointed out that PW10 has no _locus standi_ to detect the offence as he is not the Crl. A. No.1101 of 2005 -8- authorized person to detect the offence. It has come out that he is only a trainee at the time of detection of the offence. Further, it is argued by the learned counsel that PW11 is the subordinate officer of PW10. So, the investigation done by the Subordinate Officer cannot be accepted as such. 14. Sections 44 to 46 make it clear that Abkari Officers alone have powers to investigate into abkari offences. 'Abkari officer' as defined under Sec.3 (2) of the Abkari Act means the Commissioner of Excise or any Officer or other person lawfully appointed or invested with powers under Sections 4 or 5. As per Section 4, the Government may, by notification in the Gazette, appoint Officers to perform the act and duties mentioned in Sections 40 to 53. In exercise of the powers confirmed by Section 4, the Government of Kerala issued a notification, namely, G.O(P) No.69/96/TD dated 29.3.1996. The notification was published in the Gazette as SRO No.321/96. As per the notification, the Government of Kerala had appointed all police officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the Central Executive Branch of the Police Department to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31 to 35, 38,40 to 53 and 59 of the Abkari Act and to exercise all the powers and to discharge all the duties conferred and imposed on the Abkari Officers in the sections aforesaid. In the light of the above provision, I find that the Crl. A. No.1101 of 2005 -9- learned counsel for the appellant is justified in taking a contention that PW10 is not empowered to detect or investigate the offence. 15. It is also argued by the appellant's counsel that the forwarding note has not been produced in this case. In this connection, I have gone through the records and find that the forwarding note was prepared by the detecting Officer for sending the contraband articles for chemical examination. Ext.P4 mahazar prepared on 29.05.1999 does not contain the sample seal. Ext.P19 Chemical Analysis Report characterises the liquid to be the rectified spirit. It is also submitted that Ext.P19 states that the seal provided in the bottle is tallying with the sample seal provided. There is absolutely no evidence before court to show that whose sample seal was provided. Ext.P18 requisition letter sent from court for sending sample seal, the seal of the detecting Officer or the Investigating Officer does not find a place. The prosecution did not adduce any evidence to prove as to whose seal was affixed on Ext.P18. Ext.P4 seizure mahazar does not contain the impression of the personal seal claimed to have been affixed by both PW10 and PW11 on the sample and the jerry can. According to PW10, he has prepared Ext.P4 mahazar and produced the articles seized before the court and prepared the property list. But PW11 claims that the properties were produced by him before the court. Thus, there is doubt regarding the preparation of the forwarding note. According to PW10, the properties were produced Crl. A. No.1101 of 2005 -10- before Court along with the property list prepared on 30.05.1999 and it was produced before court on 01.06.1999 due to the difficulty in transporting the same. He has also deposed that the property bears his signature and the same was kept under his custody till they were produced before court and that he has filed a requisition letter before court for sending the sample for chemical examination without delay. The articles alleged to have seized from the possession of A5 and A6 were produced before court on 23.06.1999 alongwith the property list. The subsequent investigation was taken over by CW18. The appellant's counsel also pointed out that PW11, Circle Inspector, Alappuzha North Police Station has conducted the investigation in this case and he has deposed before court that he has filed Ext.P18 requisition before court for sending sample for chemical analysis on 30.05.1999 and the copy of the requisition is shown to him and he has admitted his signature also. Placing reliance on _**Krishnan H v. State**_ [2015 (1) KHC 812], the learned counsel has argued that there is no assurance that the sample of the contraband allegedly seized by PW10 had, in fact, reached the chemical Examiner for analysis. In view of the above decision, such an assurance is possible only when the sample of the seal affixed on the sample is provided to Chemical Examiner for comparison. Therefore, there is no assurance that the chemical examination was done really on the sample taken from the contraband article alleged to have seized. Crl. A. No.1101 of 2005 -11- Moreover, there is delay in producing the sample before court also. No explanation was forthcoming to prove that it was produced in a tamper proof condition. 16. 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. 17. Further, the learned counsel for the appellant has argued that PW10 is the Assistant Superintendent of Police (Trainee SHO) detected the offence. He was in charge of the North Police Station. PW11 is the CI of Police, North Police Station, Alappuzha conducted the investigation and submitted the charge sheet before the court. PW10 also speaks about the compliance of the procedural formalities in the matter of producing the articles before court by preparing Ext.P9 FIR and Ext.P10 property list. The learned counsel has placed reliance on _**Noushad v. State of Kerala**_ 2000 (1) KLT 785 wherein it is held that in cases where the complainant himself is a police official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been conducted by his top ranking Officer and the final report Crl. A. No.1101 of 2005 -12- also ought to have been filed by the higher official. The Detecting Officer is the Assistant Superintendent of Police, Alappuzha Police Station and the investigation would have been done by the higher official. Therefore, there is an incurable infirmity in the investigation done in this case. In the absence of a fair investigation, there can be no fair trial. 18. In the decision in _**Mohan Lal v. State of Punjab**_ [2018 (3) KLT 852 (SC)], it is held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. It is also held that a fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS cases were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. 19. 1201.5 litres of spirit was alleged to have seized from the appellant herein. But the prosecution has not done the investigation properly. There is informity in conducting the investigation and the Crl. A. No.1101 of 2005 -13- Detecting Officer has no power to conduct the investigation. Moreover no forwarding note has been produced and no sample seal was seen produced before court. 20 This Court is of the view that the prosecution did not succeed in proving the case against the appellant by adducing cogent and legally acceptable evidence. In the light of the discussion made above, I am of the view that the appellant is entitled to get acquittal. Accordingly, the impugned order is set aside and the appellants are acquitted of the charge levelled againt them. They are set at liberty forthwith. Their bail bonds, if any, shall stand cancelled. In the result, this appeal is allowed. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl. A. No.1101 of 2005 -14-