Santhosh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940 ## CRL.A.No. 2 of 2010 SC 697/2006 of ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK COURT -I, PATHANAMTHITTA ## APPELLANT/1ST ACCUSED: SANTHOSH, S/O. VELAPPAN, MADOPPIL VEEDU, PADINJAREKKARA,, NEDUMPRAM, THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENT/S: STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR,, THIRUVALLA EXCISE RANGE, (THROUGH PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM). ## OTHER PRESENT: SMT. K.K. SHEEBA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2018, THE COURT ON 26.11.2018 PASSED THE FOLLOWING: Crl.A. No.2/2010 -2- ## **JUDGMENT** The petitioner is the accused in S.C. No. 697 of 2006 on the file of the Additional Sessions Court (Adhoc), Fast Track Court-I, Pathanamthitta for offences punishable under Sections 8(1) and (2) of the Abkari Act. 2. The case of the prosecution is as follows: On 07.04.2005, at 8.45 a.m., the accused were seen in the car porch of one Yasodharan, Mundichira, Naduvilemuri, Nedumbram and found that the first accused was selling arrack and the second accused Sugathan has given arrack to the first accused for sale. The first accused was found in possession of a 2 litre jug containing 1 litre of arrack and a glass and the can was seized from the car porch containing 3 ½ litres of arrack. 3. The accused were arrested, sample was taken from the contraband article and the mahazar and occurrence report were also prepared. After the completion of the investigation, charge was laid against the accused before the Judicial First Class Magistrate Court, Thiruvalla. 4. On the side of prosecution, PWs 1 to 5 were examined, Exts.P1 to P11 were marked and MOs 1 to 5 were identified. On the side of the defence, no witnesses were examined and no documents were marked. Crl.A. No.2/2010 -3- The accused was questioned under Section 313 Cr.P.C. 5. The learned Sessions Judge, after trial, as per judgment dated 03.12.2009 convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to pay the fine, to undergo rigorous imprisonment for six months. The second accused was found not guilty of the offences and was acquitted under Section 235(1) Cr.P.C. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor, apart from perusing the records. 7. The learned counsel for the appellant contended that the prosecution failed to examine the thondi clerk, in spite of the specific directions issued by this Court in similar cases, especially _**Sasidharan v. State of Kerala**_[1] . He has also contended that the appellant was convicted based on the testimony of official witnesses and PWs 3 and 4 did not support the prosecution case. 8. PW1 is the Circle Inspector of Police, Alappuzha. On 07.04.2005, at about 8.25 a.m., he went for patrol duty as per the direction of the Excise Deputy Commissioner. When they reached at Manipuzha Junction, he got information that one Sugathan, S/O. Yasodharan at Munduchira House was keeping arrack. He prepared Ext.P1 search memorandum and forwarded to the court and along with 1 2007(1) KLT 720 Crl.A. No.2/2010 -4- the witnesses, he reached the house. There he found a person with a jug and glass in the car porch of the house. Two other persons were found standing near him. On seeing the Excise party, except the person who was holding the jug and glass, ran away from the place. The person who was holding the jug attempted to leave from the place and he was intercepted. They could not arrest the other two persons who ran away from the place of occurrence. On inspecting the jug, it was found that it contained 1 litre of liquid. When it was tested by tasting and smelling, he found that it was arrack. The glass also had a smell of arrack. There was a plastic can in the car porch and it was tested by smelling and tasting and found that it was arrack. There was 3 ½ litres of spirit in the can. He arrested the appellant as per Ext.P2 arrest memo. Ext.P3 is the arrest notice and Ext.P3(a) is the receipt for services of arrest notice. As per the information given by the appellant, Sugathan @ Kunjikili who was residing in the house was given the arrack for sale. Then he has taken the sample from the jug and the can, poured in the plastic bottle and sealed it. The can was also sealed. Thereafter, he affixed the label on the bottle as well as the can containing the signature of the witnesses. The sample bottle was also sealed and labelled. Thereafter, he prepared Ext.P4 mahazar. Ext.P5 is the search list in which the mother of the second accused and other witnesses have signed. On the body search, an amount of Rs.180/- was seized. The material objects, Crl.A. No.2/2010 -5- records and the accused were handed over to the Preventive Officer, Thankachan. M.V. Thomas was the Excise Inspector at that time. He expired later. According to PW1, he can identify the signature of the said Thomas, who prepared Ext.P6 occurrence report. Ext.P7 is the Inspection memo prepared by Thomas. Ext.P8 is the property list as per which the properties were produced before court. In Ext.P8, it is noted that item Nos. 1, 2, 4, 5 & 6 were sealed and labelled. Ext.P9 is the carbon copy of forwarding note produced by M.V. Thomas. Exts.P6 to P9 contains the signature of the deceased M.V. Thomas. Ext.P10 is the report of the Chemical Examiner, in which it is stated that item No.1 and 2 contained 27.67% and 27.79% respectively by volume of ethyl alcohol. The remand application prepared by the deceased M.V. Thomas was marked as Ext.P11. He identified MO1 can, MO2 jug and MO3 bottle to which the arrack was poured from the jug. MO4 is the glass and MO5 series are the currency notes. He has also identified the first accused from the court. 9. During cross examination, PW1 has stated that he has prepared the search memorandum on the spot itself and sent it to the court; but it reached there on 11.04.2005. He has also stated that there is a direction in the property list that MO3 should produce before court on 8[th] . The alleged detection of offence was on 07.04.2005 and it was stated that MOs were returned on 11.04.2005. But he was unable to say Crl.A. No.2/2010 -6- as who was in the custody the Mos after 08.04.2005. On reexamination, he has stated that as per Ext.P8, the properties were produced before court on 07.04.2005 at 6.45 p.m. Accordingly, the sample which was produced before court was not returned to him. 10. PW2 is another official witness who was given evidence in support of PW1. He has also stated that the appellant was intercepted along with the jug, which contained one litre of arrack and they had also seized a five litre can containing three litres of arrack from the car porch. Then the sample was taken from the jug and can and it was sealed and labelled. According to him, the arrack from the jug was poured into the bottle and it was sealed and labelled. There was 180 rupees in the pocket of the accused. The appellant was arrested as per Ext.P4 mahazar prepared by PW1. He identified the first accused as the person who was arrested from the spot and Mos 1 to 5 were also identified. During cross-examination, he has stated that the seal was affixed as 'NS'; but the impression is not seen on the bottle. 11. PW3 is the occurrence and independent witness. He has admitted the signature of Ext.P4 mahazar. According to him, he has not given any statement before police. Accordingly, he was declared hostile to the prosecution. PW5, who is the Excise Inspector, interrogated the witnesses and filed a charge sheet against the accused. PWs 1 and 2, who are the official witnesses, supported the prosecution. According to Crl.A. No.2/2010 -7- PW1, on getting information that the arrack was being sold in the house of Sugathan, S/O. Yasodharan, he reached Munduchira house at Naduvile on 07.04.2005 at 8.45 a.m. 12. MOs were produced belatedly and the delay was not explained by the prosecution. The MOs were seen to have produced before the Court on 07.04.2005, i.e, on the same day itself. Another contention is that the forwarding note was also not produced before court. Ext.P9 is the office copy of the chemical requisition form, which was produced before court on 07.04.2005 itself. I have gone through Ext.P9 forwarding note dated 07.04.2005 and found that it was accepted by the court on 07.04.2005 itself. Ext.P8 is the property list which was produced before court on 07.04.2005 at 6.45 p.m. and there is an endorsement to produce the sample before the Judicial First Class Magistrate Court, Thiruvalla on 08.04.2005 at 11 a.m. When PW1 was examined in reexamination, it is stated that Ext.P8 property list was produced before the court on 07.04.2005 at 6.45 p.m. and except the sample and money, all contraband articles were returned to keep it in the safe custody. Nowhere it is stated that the sample bottle and the money were kept by the court on 07.04.2005 and returned the rest of the items to the Excise Officer on 07.04.2005 to produce it on 08.04.2005. Nowhere it is stated that those contraband articles were produced before court on 08.04.2005. In Ext.P8, there is an endorsement to the effect Crl.A. No.2/2010 -8- that there is no sufficient space to keep the Mos (item Nos.1 to 3). Hence it may be returned to E.I, Thiruvalla for safe custody. That order was written on 11.04.2005. On the same day itself, the Magistrate has returned item Nos. 1 to 3 for safe custody. On cross-examination, PW1 has stated that there is a direction of the court to produce the thondi articles on 08.04.2005 and it was subsequently produced on 11.04.2005. He could not say as to who was in the custody of the thondy articles on those days. There is no evidence to prove that those thondy articles were produced before court on 08.04.2005. Moreover, it was written that item Nos. 1 to 4, 5 and 6 were sealed and labelled. Nowhere it is stated that the appellant/accused has signed on the label affixed on the sample as well as on the can. Eventhough it is stated that the label contained the signature of the appellant, the MOs produced before court did not contain any labels. Ext.P10 is the chemical analysis report. The only question is whether the sample of the contraband articles were properly produced before court. It is true that the properties were produced before court on the date of detection itself and it was returned for production on the next day itself. But there is no evidence to prove that on the next day, the contraband articles and samples were produced before court and the case of the prosecution is that on 11.04.2005, the entire articles, except the sample bottle and money alleged to have seized from the accused, were returned to the Crl.A. No.2/2010 -9- Investigating Officer. From the clarification of PW1, it is evident that the sample and money was kept by the court and except the sample and money, all other contraband articles were returned to the Investigating Officer. But this fact has not been seen in Ext.P8 property list. There is no evidence to prove that the sample and the contraband articles were produced before Court on 08.04.2008. Moreover, there is delay in producing the same before court. The prosecution has failed to produce the same on the next day itself. The prosecution, in a case of this nature, can succeed only if it is proved that the contraband articles which was allegedly seized from the accused were produced before court in a tamper proof condition. The prosecution has failed to explain as to who was in the custody of the contraband articles till it were produced in court. 13. 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. 14. In such circumstances, when there is delay in producing the contraband articles in court and there is no evidence as to who was in Crl.A. No.2/2010 -10- the custody of the contraband articles and whether the contraband articles were kept in safe custody till they were produced in court, the possibility of tampering with the sample cannot be ruled out. In the result, this appeal is allowed and the conviction and sentence passed against the appellant in S.C. No. 697 of 2006 on the file of the Additional Sessions Court (Adhoc), Fast Track Court-I, Pathanamthitta is hereby set aside. He is set at liberty forthwith. The bail bond, if any, executed by the appellant shall stand cancelled. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl.A. No.2/2010 -11-