Santhosh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 1ST DAY OF JANUARY 2014/11TH POUSHA, 1935 CRL.A.No. 839 of 2003 ---------------------[AGAINST THE ORDER IN SC 71/2000 of ADDITIONAL DISTRICT & SESSIONS COURT-I (ADHOC), PATHANAMTHITTA DATED 26-05-2003] APPELLANT(S/ACCUSED: -------------------- SANTHOSH, S/O.ACHUTHAN, AGED 39, MOOZHIKKAL VEEDU, KIZHAKKE MAMPRA, KAKKAD MURI, PERINAD VILLAGE, RANNI TALUK, PATHANAMTHITTA. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): -------------STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 839 of 2003 ----------------------------------------** Dated this the 1[st] day of January, 2014 ## **J U D G M E N T** Challenging the judgment dated 26.5.2003 in S.C.No.71 of 2000 of the court of the Additional District and Sessions Judge, (ADHOC) Court-I, Pathanamthitta, the appellant/the sole accused therein preferred this appeal as he is aggrieved by the conviction and sentence imposed on him for the offences under Sections 55(a) and (g) of the Abkari Act. 2. The prosecution case is that on 21.9.1997, when the S.I. Of Police, Peunadu Police Station was on patrol duty accompanied by PW4 and other police party and when they reached Kizhakke Mampara, they got an information that the accused is selling illicit arrack and storing apparatus for the purpose of distilling illicit arrack in his house and on the basis of that information, when they reached near the house of the accused, they saw the accused running with Crl.A.No.839 of 2003 :-2-: MO1 can in his hand. But, he was apprehended and when on inspection of the can, the liquid contained therein is identified as illicit arrack by smelling and tasting and on further enquiry, they detected certain implements being kept for distilling illicit arrack and the accused as well as the contraband article and the implements were seized. Thus, according to the prosecution, the accused has committed the offences punishable under Sections 55(a) and (g) of the Abkari Act. 3. On the basis of the above allegation, crime No.129 of 1997 was registered in the Perunadu Police Station for the said offences and on completing the investigation, a report was filed and when the accused appeared before the trial court, after perusal of the prosecution materials and after hearing both the prosecution as well as the defence, a formal charge was framed against him for the offences punishable under Sections 55(a) and (g) of the Abkari Act, which when read over and explained to the accused, he denied the same and Crl.A.No.839 of 2003 :-3-: pleaded not guilty. Consequently, the prosecution adduced its evidence by examining Pws.1 to 5 and producing Exts.P1 to P9 documents. From the side of the defence, DW1 was examined and produced Ext.D1. Besides the above, from the side of the prosecution, Mos.1 to 5 are identified as material objects. On the basis of the above evidence and materials, the trial court has found that the appellant/accused was in possession of arrack and distilling apparatus as alleged by the prosecution and accordingly, he was found guilty for the offences under Sections 55(a) and (g) of the Abkari Act and accordingly, he was convicted thereunder. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for one year and to pay fine of `1 lakh on each count and in default, he was directed to undergo three months more simple imprisonment and while allowing set off under Section 428 of the Cr.P.C., the substantive sentence is ordered to be run concurrently. It is the above finding, the order of conviction and sentence challenged in this Crl.A.No.839 of 2003 :-4-: appeal. 4. Though altogether the prosecution has examined five witnesses, except Pws.4 and 5, who are official witnesses, all other independent witnesses turned hostile to the prosecution. Pws.1 and 2 are the attestors to Ext.P4 seizure mahazar and they turned hostile and on cross-examination, their contradictory portion of their 161 statement are respectively marked as Exts.P1 and P2. Similarly, PW3 another occurrence witness, when turned hostile and during his crossexamination, Ext.P3 contradictory portion of their 161 statement is marked. PW4 is the then Police Constable attached to Perunadu Police Station, who accompanied PW5 at the time of detection of the crime and PW5 was then working as S.I. Of Police of Perunadu Police Station, who detected the crime. But, when Pws.4 and 5 were examined, they had deposed in terms of the prosecution allegation and according to them, when they were on patrol duty on 21.9.1997 and when they reached at Kizhakkemambra, they have got information Crl.A.No.839 of 2003 :-5-: about the illicit sale of arrack and storing of apparatus for illicit distillation in the house of the accused and accordingly, they proceeded to the spot and on reaching the spot, they saw the accused running with MO1 can, but he was intercepted and the illicit arrack contained in MO1 was seized in the presence of witnesses and according to them, the entire proceedings including the detection of the crime, the seizure of the contraband article as well as the implements for distillation of illicit arrack, arrest of the accused etc. are elaborately recorded in a mahazar and on completing the above proceedings, they returned to the Police Station. It is the further case of the prosecution that on arriving in the Police Station, the case in Crime No.129 of 1997 of Perunadu Police Station was registered against the accused for the offences punishable under Section 55(a) and (g) of the Abkari Act and thereafter, the properties seized from the possession of the accused were produced before the court by filing a property list and the accused was also produced by filing a remand Crl.A.No.839 of 2003 :-6-: application. According to the prosecution, PW5 prepared a forwarding note for sending the samples for chemical analysis report and obtained a report as well. Thus, when PW4 was examined, Ext.P4 seizure mahazar was marked through him. He had also identified Mos.1 to 5, among which MO1 is the five litre capacity can which contained the illicit arrack and Mos.2 to 5 are various implements meant for illicit distillation of arrack. Similarly, when PW5 was examined, Ext.P5 F.I.R., Ext.P5(a) F.I.statement, Ext.P6 property list, Ext.P7 remand application, Ext.P8 forwarding note and Ext.P9 chemical analysis report were marked through him. The memorandum of evidence in the present case consists of the defence evidence such as Ext.D1 sketch and the testimony of DW1. It is on the basis of the above evidence, the trial court discarded the defence plea and found that the accused was found in possession of contraband article and the apparatus meant for using distillation of illicit arrack. Crl.A.No.839 of 2003 :-7-: 5. I have heard Sri.M.V.S.Nampoothiry, the learned counsel for the appellant and the learned Public Prosecutor. 6. Learned counsel for the appellant vehemently submitted that in the present case, absolutely no independent evidence is available to corroborate the evidence of official witnesses and the trial court is not justified in convicting the appellant, solely on the basis of the evidence of the official witnesses, whose evidence is not free of doubt, discrepancies and infirmities. It is also the contention of the counsel that by adducing defence evidence, the accused has succeeded in establishing that the prosecution allegation with respect to the alleged arrest and seizure of contraband article etc. are false, but the trial court did not consider those vital defects particularly in the light of the discrepancies occurred in the evidence of Pws.4 and 5. So, according to the learned counsel, the judgment of the trial court is liable to be set aside and the appellant is entitled to get an acquittal. 7. On the other hand, the learned Public Prosecutor Crl.A.No.839 of 2003 :-8-: submitted that the evidence of Pws.4 and 5 the official witnesses, who involved in the detection of the crime, positively proved the prosecution allegation against the accused and even though there are some discrepancies in the evidence of Pws.4 and 5, the same are not sufficient to reject the entire prosecution allegation against the appellant. According to the learned Public Prosecutor, the investigation in this case is conducted effectively and properly and contraband article and the accused were produced before the court on the next day of the occurrence and there was absolutely no delay. It is the further contention of the learned Public Prosecutor that as the evidence of Pws.4 and 5, on material particulars are intact, the hostile approach of Pws.1 to 3 will not affect the core of the prosecution case. So, no interference is warranted, according to the learned Public Prosecutor. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor Crl.A.No.839 of 2003 :-9-: and I have perused the evidence and materials on record. 9. In the light of the contentions advanced by the counsel for the appellant as well as the learned Public Prosecutor and in view of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offences under Sections 55(a) and (g) of the Abkari Act. 10. At the outset, it is to be noted that according to the prosecution, on getting information about the sale of illicit arrack and storing of apparatus for illicit distillation of arrack, Pws.4 and 5 went to the house and on their arrival, they saw the accused running with MO1 can, but he was intercepted and the can was inspected and thereafter, on further enquiry, detected the implements. In this case, it is relevant to note that though according to Pws.4 and 5, the information received by them about the sale of illicit arrack and storing of implements for the purpose of illicit distillation of arrack in Crl.A.No.839 of 2003 :-10-: the house of the accused, no search memorandum is prepared and absolutely no explanation is forthcoming from PW5 for the above failure. In view of Section 30 of the Abkari Act and in view of the provisions contained in the Cr.P.C., it is the duty of PW5 to get permission from the court for conducting search in the house of the accused since the information was to the effect that the sale of illicit arrack and storing of implements were in the house of the accused. If there was no possibility to conduct search after getting permission from the court, PW5 ought to have prepared a search memorandum at the spot at which he received the information and send the same to the court in advance and thereafter to proceed to conduct the search of the house of the accused. But, in the present case, none of this procedure was adopted by PW5. Such failure from the part of PW5 itself is sufficient to doubt the veracity of the prosecution case particularly when the independent witnesses did not support the prosecution case. 11. Ext.P4 is the first document came into existence in the Crl.A.No.839 of 2003 :-11-: present case, particularly with respect to the seizure of the contraband article and the apparatus and also doubt the arrest of the accused. When Pws.4 and 5 were examined, they have claimed that when PW5 had drawn the sample, the sample bottle was affixed with a seal. But, in the testimony of Pws.4 and 5, there is no description about the seal used and affixed on the sample bottle. Suffice to say, in Ext.P4 seizure mahazar also, there is no description about the seal used and affixed on the sample bottle and no specimen seal impression is affixed on Ext.P4. So, as per the evidence on record, we do not know, what kind of seal has been affixed on the sample bottle. In this juncture, it is relevant to note that Ext.P8 is the forwarding note prepared by PW5 and submitted before the court for sending the sample for chemical analysis. But, in Ext.P8 also, no sample seal is provided. So, this Court failed to understand on what basis the Chemical Examiner in Ext.P9 report has certified that the seal on the sample bottle was tallied with the seal provided. Crl.A.No.839 of 2003 :-12-: 12. In this juncture, it is also relevant to note that neither in Ext.P4 seizure mahazar nor in the deposition of Pws.4 and 5, the actual quantity of sample taken by PW5 is mentioned. It is true, in Ext.P4 as well as in the deposition of Pws.4 and 5, it is stated that the sample was taken in a bottle having the capacity of 375 ml. But about the exact quantity of sample taken, absolutely there is no evidence. In this juncture, it is pertinent to note that in Ext.P8 forwarding note, the quantity of sample originally seen recorded is 180 ml. against column Nos.4 and 5, but the same is seen scored and it is corrected as 375 ml. But, in Ext.P6 property list, item No.2 is described as “ 375 ml. ഉള���ള�വ�ന �വള�ത ക�പ�യ�ല വ��ജ ച�ര�യ� മ���ല ഭ�ഗതത�ള� ഉള സ�ല �ചയ�� ക�പ�.” If the above prosecution document is taken as true and correct, the sample bottle which was having the capacity of 375 ml. was not containing full of illicit arrack as sample. If the sample contained therein is three-fourth of that bottle, which may come 280 ml. But, in Ext.P9 chemical analysis report, the quantity of sample received by Crl.A.No.839 of 2003 :-13-: the Chemical Examiner recorded as 375 ml. of clear and colourless liquid. So, the prosecution documents viz., Ext.P6 property list, Ext.P8 forwarding note and Ext.P9 chemical analysis report contradict each other and no reliance can be placed upon the prosecution allegation about the sampling of contraband article. A Division Bench of this Court in the decision 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 contraband liquor seized from the accused which had reached in the hands of Chemical examiner in a fool proof condition. In the present case, as I indicated earlier, about the seal used on the sample bottle, there is no cogent and satisfactory evidence. The difference in the quantity of sample seen on comparison of Exts.P6,P8 and P9 prosecution documents would show that the claim of prosecution is incorrect and as such, there is no guarantee that the sample, which reached in the hands of Chemical Examiner, is the sample drawn from the contraband article allegedly Crl.A.No.839 of 2003 :-14-: seized from the possession of the accused. So, the above factual input of the case shows that the prosecution has miserably failed to withstand the test laid down by this Court in the above decision. 13. Besides the above vital defect in the prosecution case, it can also be noted that there are glaring contradictions and discrepancies in the evidence of Pws.4 and 5 about the arrest of the accused and the seizure of the apparatus. When PW4 says that the accused was intercepted by PW5, PW5 stated that the accused was intercepted by some other person. In the light of the defence evidence brought on record, it is proved that the claim of prosecution that the accused was seen within a distance of 25 metres from the Mambra Maniyar Road, is false. As per the evidence of DW1, it is brought on record that the house of the accused cannot be seen from any part of the above mentioned road. DW1 is the then Village Officer of Perunadu Village, who is more familiar and conversant with the location. In the absence of any search memorandum timely prepared Crl.A.No.839 of 2003 :-15-: by PW5 and in view of the discrepancy occurred in the evidence of Pws.4 and 5, according to me, it is not safe to convict the appellant, especially in the absence of any independent evidence, simply relying upon the evidence of Pws.4 and , who are the official witnesses. 14. In the light of the above discussion and in view of the evidence and materials referred to above, according to me, the trial court is not justified and correct in convicting the appellant for the offences under Sections 55(a) and (g) of the Abkari Act and the evidence available on record are not sufficient to convict the appellant. Therefore, I am unable to approve the conviction recorded by the trial court against the appellant and accordingly, the conviction of the appellant for the offences under Sections 55(a) and (g) of the Abkari Act is set aside. In the result, this appeal is allowed setting aside the judgment dated 26.5.2003 in S.C.No.71 of 2000 of the court of Additional District and Sessions Judge, (ADHOC) Court-I, Pathanamthitta and Crl.A.No.839 of 2003 :-16-: the appellant is acquitted of all the charges levelled against him and the bail bond, if any, executed by the appellant shall stand cancelled and he is set at liberty. MBS/ **V.K.MOHANAN, Judge** Crl.A.No.839 of 2003 :-17-: