SANKARAN S/O.KESAVAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942** ## **CRL.A.No.1259 OF 2006** **AGAINST JUDGMENT IN S.C. NO. 561/2003 DATED 03-06-2006 OF ADDITIONAL SESSIONS COURT, FAST TRACK - II, ALAPUZHA** **C.P. NO. 54/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM** ## **APPELLANT/ACCUSED:** **SANKARAN S/O.KESAVAN, PRAKASH BHAVAN, ELIPPAKULAM MURI, VALLIKUNNAM VILLAGE, MAVELIKARA TALUK.** **BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, MAVELIKARA RANGE THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY SMT. M.N. MAYA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-11-2020, THE COURT ON 09-11-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No. 1259 of 2006 2 **JUDGMENT** In this appeal preferred under Section 374 of the Code of Criminal Procedure, hereinafter referred to as the 'Cr.P.C.', the appellant challenges his conviction alleging offence punishable under Sections 8(1) and (2) and 55(a) of the Abkari Act. He was the accused in Sessions Case No. 561/2003 of Additional Sessions Court, Fast Track - II, Alappuzha. That case was taken on file on the basis of a charge sheet laid by the Excise Inspector, Mavelikara in Crime No. 7/2002 of that Range. The prosecution allegation is that on 14.01.2002, while the PW1 Assistant Excise Inspector, N. Ashok Kumar and party were conducting patrol duty, at Elippakulam muri in Vallikunnam village in Mavelikara Taluk, near the Vivekananda Junction on Choonad - Thamarakulam road, the appellant was found in possession of 750 ml. of arrack in a bottle; seeing the excise party when he tried to hide himself, he was intercepted and the bottle containing liquid was opened and tested; finding that it was arrack, he was arrested from the spot in the presence of independent witnesses and was produced before the Excise Range Inspector. Thereafter, the crime was registered and the appellant was produced before the Court. Crl.Appeal No. 1259 of 2006 3 2. After investigation, a charge sheet alleging offence punishable under Sections 8(1) and (2) and 55(a) of the Abkari Act was filed before the Judicial First Class Magistrate Court, Kayamkulam. After completing procedural formalities, since an offence exclusively triable by the Sessions Court was revealed, the case was committed to the Sessions Court, Alappuzha. The learned Sessions Judge made over the case to the trial court. 3. The appellant was defended by a counsel of his choice. After hearing counsel on both sides, when charge was framed, read over and explained in malayalam, he pleaded not guilty. He was on bail. Five witnesses were examined on the side of prosecution as PWs 1 to 5. Exts.P1 to P6 were also marked. As the learned Judge found the case not acquittable under Section 232 of the Cr.P.C., the appellant was called upon to adduce evidence in defence, if any. One witness was examined on his side as DW1. After hearing counsel on both sides, repelling the plea of innocence, by the impugned judgment dated 03.06.2006, the learned Additional Sessions Judge found the appellant guilty of offence charged against him and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for three Crl.Appeal No. 1259 of 2006 4 months. That finding is under challenge in this appeal. 4. I heard the learned counsel for the appellant as well as the learned Public Prosecutor for the State. 5. The learned counsel submitted that it is a politically motivated case initiated at the instance of an Excise Inspector Salim and his brother Ayyappankutty. He also pointed out that there is no forwarding note relied on by the prosecution which is fatal. 6. PWs 1 and 2 are the main witnesses, who supported the prosecution case. PW1 is the Assistant Excise Inspector, who detected the offence. According to him on 14.01.2002, while he was working as Assistant Excise Inspector, he was doing patrol duty. While they were moving southwards from the Vivekananda Junction on the Choonad - Thamarakulam road, seeing the Excise party, one person, identified as the appellant, was found in a perplexed condition. On his body search, a bottle containing 750 ml. of liquid was found concealed in his lap. When its content was tested, it was found arrack. After taking sample, the contraband was seized under Ext.P1 mahazar. The appellant was also arrested after giving notice to his wife. Everything was done in the presence of independent witnesses. There were seven persons in the Excise party. The place of occurrence was about 300 meters south Crl.Appeal No. 1259 of 2006 5 of the junction. The contraband and the sample were sealed and his personal seal was affixed on the same. He denied that it is a false case initiated at the instance of the said Ayyappankutty and Salim. 7. PW2 the Preventive Officer, who accompanied PW1 also gave a similar statement before court. The attempt of the defence was to make out that the case was cooked up against the appellant due to political reasons, at the instance of the said Salim and Ayyappankutty. PW1 has stated in categorical terms that he has no knowledge about Salim and Ayyappankutty. 8. PW3 Parthasarathy and PW5 Sankaran are independent witnesses, who signed the Ext.P1 mahazar. Though both of them admitted their signatures in the document, denied having witnessed the seizure of contraband from the appellant and thus both were declared hostile to the prosecution and were cross-examined by the Public Prosecutor. PW4 is the Excise Inspector before whom the appellant along with contraband was produced by PW1 on 14.01.2002, basing on which Crime No. 7/2002 was registered. On the following day, he produced the appellant and the contraband before the court. He conducted the investigation and laid the charge sheet before court. He also proved the Ext.P6 chemical examination report Crl.Appeal No. 1259 of 2006 6 which indicates that the sample sent from the court in Crime No. 7/2002 of Excise Range, Mavelikara contained 33.12% by volume of ethyl alcohol. As already stated, the appellant had attributed motive against the officials for having acted as a tool in the hands of Ayyappankutty and Salim that the said Ayyappankutty is a leader of the CPI(M) whereas he was an activist of the Congress, in the preceding election to the Panchayat, he had tried for the defeat of the said Ayyappankutty and that is the reason for fabricating a false case against him. 9. The mission of DW1 Rajappan, who is admittedly a neighbour of the appellant was to give a statement in tune with what the appellant had given when he was examined by the court under Section 313 of the Cr.P.C. 10. The learned Additional Sessions Judge cannot be faulted for placing reliance on the testimony of PWs 1 and 2 along with the partial support rendered by PWs 3 and 5, independent witnesses, who had attested the Ext.P1 mahazar. At the same time, I do not have slightest doubt in mind that the contention that it is a politically motivated case, can be considered only to be rejected. But there are other valid reasons to interfere with the conviction arrived at by the Crl.Appeal No. 1259 of 2006 7 learned Judge. 11. As rightly pointed out by the learned counsel, there is no forwarding note marked or relied on by the prosecution. It may be true that the appellant was arrested along with an offensive item. When the appellant was arrested, the content of the bottle was tested by the Excise officials in the presence of independent witnesses. After having _prima facie_ satisfied that it is illicit arrack that the appellant was arrested and a criminal prosecution was launched against him. He was also remanded to judicial custody for sometime. But that would not make out a case against him for proceeding under the criminal law. It is the burden of the prosecution to bring in satisfactory materials and legal evidence capable of standing judicial scrutiny for arriving at an offence against him. In this connection, the most important material highlighted against the appellant is the Ext.P6 document, certificate of chemical analysis. Of course, it is stated in Ext.P6 that 'the seal on the bottle was intact and found tallied with the sample seal provided'. But we are in the darkness as what was the seal. That would have been revealed if the forwarding note under which the sample was sent to the laboratory was produced and marked before the prosecution. Such a document is not forthcoming. In fact, it is the main pillar of the Crl.Appeal No. 1259 of 2006 8 prosecution evidence. It is the burden of the prosecution that the Ext.P6 relates to the sample collected from the possession of the appellant. Since such an important document is not available, a positive conclusion cannot be arrived at against the appellant. If only all the materials providing reasonable nexus between the sample and chemical examination report are made available, it could be stated that legal evidence is established against the appellant. Its absence is a very material lacuna crept in the evidence tendered by the prosecution. This Court has taken the consistent stand that non-production of the forwarding note itself is a ground for the acquittal of the accused in such a case. A similar stand has to be taken, here also. 12. It has also come out that the crime was detected by PW1, an Assistant Excise Inspector. The incident had happened on 14.01.2002. On that day, an Assistant Excise Inspector was not competent and authorised as contemplated under the Abkari Act especially under Sections 4(d) and 70 of the Act for detecting an offence under the Act. Therefore, the seizure and arrest made by PW1 was without authorisation and jurisdiction. An Assistant Excise Inspector was conferred power under the Abkari Act only after the issuance of notification in SRO No. 361/2009 dated 08.05.2009. In the Crl.Appeal No. 1259 of 2006 9 decision in **Parathi Sasidharan v. State of Kerala [2012 (2) KLJ 390]** , this Court has reiterated the earlier decision in **Subrahmaniyan** **v. State of Kerala [2010 (2) KLT 470]** that prior to 08.05.2009 the Assistant Excise Inspector was not empowered to arrest any person, seize any contraband etc., as provided under the Abkari Act. Even though such a contention was not raised in the appeal memorandum or argued by learned counsel, this aspect goes to the very root of the case and on this count alone, the appellant is entitled to be acquitted. In the result, in reversal of the conviction and sentence imposed, the appellant is found not guilty and acquitted under Section 386(b)(i) of the Cr.P.C. He shall be set at liberty. Fine amount, if any, realised shall be refunded. Sd/- **K.HARIPAL JUDGE** DCS/06.11.2020