Sakthidharan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 22ND DAY OF MAY 2014/1ST JYAISHTA, 1936 CRL.A.No. 797 of 2004 -------------------------- AGAINST THE JUDGMENT IN SC 1213/2002 of III ADDL.SESSIONS COURT KOLLAM DATED 17-05-2004 (Kollam Excise Crime No.72/1998, C.P. No. 41/01 of Judicial First Class Magistrate-II, Kollam) ## APPELLANT/ACCUSED: SAKTHIDHARAN, S/O.BHASKARAN, MALIKA VEEDU, UDAYAMARTHANDAPURAM CHERRY, MUNDAKKAL VILLAGE, KOLLAM TALUK. BY ADV. SRI.C.RAJENDRAN ## RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE, KOLLAM THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-052014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 797 of 2004 = = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of May, 2014 ## **JUDGMENT** The appellant was convicted for the offence under Section 55(a) of the Abkari Act by the III Additional Sessions Court, Kollam. He was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo rigorous imprisonment for one year. Challenging the conviction and sentence so passed, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW3, Excise Preventive Officer, Excise Range Office, Kollam, and his party were on patrol at Mundakkal East in CRL.A.797/2004 2 Mundakkal Village on 30.10.1998. While so, at 5.30 p.m., the appellant was seen carrying a black jerrycan on the northern side of Kondethu Bridge at Udayamarthandapuram Cheri. Seeing the excise party, the appellant attempted to flee away leaving the jerrycan near the side of that Bridge. The excise party stopped him there. On examination of that 10 litre jerrycan, 9 litres of arrack was found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested then and there by PW3 preparing Ext.P2 Arrest Memo. PW3 had drawn 300 ml. of arrack in a 375 ml. bottle as sample from the bulk contained in the jerrycan. The sample bottle and the jerrycan were sealed. They were seized by PW3 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW3 proceeded to the Excise Range Office, Kollam, with the appellant, contraband and the records and registered Crime No.72 of 1998. Ext.P3 is the Crime and Occurrence Report prepared by PW3. PW4, the Excise Inspector, Excise Range Office, CRL.A.797/2004 3 Kollam, had taken over the investigation. He had produced the appellant along with the contraband and the connected records before the court on the next day. PW5, the Excise Inspector, Excise Range Office, Kollam, had completed the investigation of the case and submitted the Final Report before the Judicial First Class Magistrate's Court-II, Kollam. 4. The learned Magistrate committed the case to the Court of Session, Kollam, and from there it was made over to the III Additional Sessions Court, Kollam. The court below framed a charge against the appellant alleging the offences under Section 55(a) and (i) of the Abkari Act. He had pleaded not guilty of the charge. The prosecution had examined PWs.1 to 5 and marked Exts.P1 to P4 and MO.1 on their side. The appellant was questioned under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant not guilty of the offence CRL.A.797/2004 4 under Section 55(i) of the Abkari Act and hence acquitted him of that offence. But, he was found guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. Learned counsel for the appellant submits that the court below had entered the conviction against the appellant purely based on the interested testimony of PW3, the detecting officer. PWs.1 and 2 were cited and examined as independent witnesses for proving the alleged occurrence. Both of them did not support the prosecution case. According to the prosecution, there were four Excise Officials - one Preventive Officer and three Excise Guards - apart from PW3 in the excise party. Even though there were five Excise Officials in the excise party, the prosecution had cited PW3 and the other Preventive Officer alone as occurrence witnesses. Despite the fact that PWs.1 and 2 did not support the prosecution case, the prosecution CRL.A.797/2004 5 had not chosen to examine the other Preventive Officer for proving the occurrence. But, the prosecution heavily relied on the evidence of PW3, the detecting officer, for proving their case. The evidence tendered by PW3 cannot be relied on for entering a conviction against the appellant. Moreover, no proper investigation had been conducted by the investigating agency in this case, the learned counsel further submits. 6. Learned Public Prosecutor, on the contrary, relying on the ruling of this Court in **State of Kerala v. Choyunni (1980 KLT 107)** submits that the evidence of detecting officer, without any corroboration, can be relied on by the court for entering a conviction. Therefore, according to her, the conviction entered by the trial court in this case is sustainable in the eye of law. 7. Whether the conviction of the appellant for the offence under Section 55(a) of the Abkari Act is legally sustainable or not is the only question to be considered and CRL.A.797/2004 6 answered in this case. PW3, the detecting officer, by and large, supported the prosecution version of occurrence while he was in the witness box. The trial court has relied on his evidence for finding guilty of the appellant of the offence under Section 55(a) of the Abkari Act. It is true, as submitted by the learned Public Prosecutor, that the evidence of the detecting officer can be relied on without corroboration, if it is found reliable. In all circumstances, such a lone voice cannot be relied on. After a scrutiny with care and caution, if such evidence is found unreliable, it cannot be accepted and if found reliable, it can be accepted. A hard and fast rule that the evidence of a detecting officer can be accepted in all circumstances or cannot be accepted in all circumstances is not at all a prudent one to be followed. The acceptability or non acceptability of such evidence depends upon various facts and circumstances involved in a particular case. CRL.A.797/2004 7 8. It is the case of PW3 that while he was on patrol duty along with his party, by chance, he happened to see the appellant carrying a jerrycan containing 9 litres of arrack on the northern side of Kondethu Bridge. To a question asked by the defence, PW3 replied that he was not aware as to who were all residing near the place of occurrence. He also pleaded ignorance as to how many roads were connected to that Bridge. He admitted that the said Bridge was being used for vehicular traffic. Learned counsel for the appellant submits that the alleged place of occurrence is a busy area where so many shops situate and that area would be crowded always. PWs.1 and 2 are residing almost 1 K.M. away from the alleged place of occurrence. In such a circumstance, the case of the prosecution that the contraband was seized from the appellant and he was arrested by PW3 in the presence of PWs.1 and 2 is a false story cooked up by the prosecution, contends the learned counsel. CRL.A.797/2004 8 9. The evidence of PWs.1 and 2 shows that they are residing ¾ or 1 K.M. away from the alleged place of occurrence. The evidence of PW1 clearly shows that there are many shops at the alleged place of occurrence. It is also a residential area. Therefore, it was quite possible for PW3 to get two witnesses from the locality itself while preparing Ext.P1 Seizure Mahazar as well as Ext.P2 Arrest Memo. According to PWs.1 and 2, they had not witnessed the alleged occurrence. They stated that the signatures appearing in Ext.P1 and Ext.P2 were not that of them. Therefore, even though the prosecution had cited PWs.1 and 2 as independent witnesses for proving the occurrence and arrest of the appellant, they had miserably failed to prove the same by their examination. The other Preventive Officer in the excise party was also cited as an occurrence witness. But, he was not examined despite the fact that PWs.1 and 2 did not support the prosecution case. These are all facts creating doubt about the prosecution version of occurrence. CRL.A.797/2004 9 10. The prosecution case is that the investigation in this case was conducted by PW4, the Excise Inspector. According to the prosecution, PW4 had examined the witnesses and recorded their statements. It is also their case that PW5, the Excise Inspector, had continued and completed the investigation and submitted the Final Report before the court. PW4 deposed that he had produced the appellant along with the contraband before the court on 31.10.1998. He had also produced the requisition for subjecting the sample of the contraband to chemical examination before the court. He had done nothing more in this case. He categorically admitted that he had neither given notice to the witnesses nor recorded their statements. A perusal of the deposition of PW4 would go to show that he had not conducted any investigation as claimed by the prosecution in this case. PW4 stated that PW5 had conducted the investigation in this case. PW5 stated that he had examined the records of the case and prepared the CRL.A.797/2004 10 Final Report and submitted the same before the court. He also stated that the investigation of the case had been conducted by PW4. He had no case that he had conducted investigation in the case. During cross examination, he stated that he had stated in detail the investigation conducted by PW4 in the Final Report. PW5 claimed that, after examining the records, he had stated in the Final Report that PW4 questioned the accused as well as the witnesses and recorded their statements. At the same time, he maintained that he did not remember what were the documents he had so examined. He admitted that the statements of the witnesses and the accused mentioned in the Final Report were not available in the Case Diary. A combined reading of the evidence of PWs.4 and 5 would clearly show that no investigation had been conducted by the investigating agency in this case. The statement made by PW5 in the Final Report that PW4 had conducted investigation is baseless. CRL.A.797/2004 11 11. Section 50 of the Abkari Act deals with the investigation of the case and forwarding of report to the Magistrate. This Section reads as follows: “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1)Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub section (2) of section 173 of the Code of Criminal Procedure, 1973(Central Act 2 of 1974).” Section 50 thus mandates that investigation into the offence shall be completed without delay. As soon as the investigation is completed, the Abkari Officer has to forward the report in accordance with Subsection (2) of Section 173 of Cr.P.C. In the light of Section 50, a Final Report under CRL.A.797/2004 12 Section 173 of Cr.P.C. can be submitted only after completing the investigation of the case. Therefore, investigation is a precondition for forwarding a Final Report to the concerned Magistrate under Subsection (2) of Section 173. In the case on hand, the investigating agency had not conducted an investigation into the offence alleged as contemplated under Section 50 of the Abkari Act. This is an illegality committed by the investigating agency in this case. This lapse itself is sufficient for rejecting the prosecution case as a whole and acquitting the appellant of the offence alleged against him. 12. Another aspect also has to be considered along with the above facts. Exhibit P4 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram, which shows that ethyl alcohol was detected in the sample. This report is dated 20.8.1999. It can be seen from this document that it reached the Judicial First Class Magistrate's Court, Kollam, CRL.A.797/2004 13 on 16.11.1999. PW5 submitted the Final Report before the court only on 24.2.2001. These facts strengthen the view of this Court that the evidence of PW3 cannot be relied on for finding the appellant guilty of the offence alleged against him. 13. For the foregoing reasons, the conviction and sentence passed by the court below against the appellant are liable to be set aside. He is entitled to an acquittal of the offence under Section 55(a) of the Abkari Act. 14. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks True copy P.S.to Judge CRL.A.797/2004 14