Sathyaseelan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 26TH DAY OF JULY 2019 / 4TH SRAVANA, 1941** ## **CRL.A.No.876 of 2008** **AGAINST THE ORDER OF CONVICTION AND SENTENCE IN SC 609/2002 of THE ADDITIONAL SESSIONS JUDGE, KOTTARAKKARA (ABKARI CASES) DATED 06.05.2008** ## **APPELLANT/ACCUSED:** **SATHYASEELAN, S/O.SADANANDAN, CHARUVILA HOUSE, KUDAVATTOOR MURI, ODANAVATTOM VILLAGE.** **BY ADVS. SMT.MEENA.A. SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR SRI.VINOD RAVINDRANATH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR SMT.MAYA.M.N** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2019, THE COURT ON 26.07.2019 PASSED THE FOLLOWING:** Crl.A.No.876/2008 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.876 of 2008 --------------------------------------------Dated this the 26[th] day of July, 2019 ## **J U D G M E N T** The appellant is the accused. The appeal is filed by him assailing the verdict of guilty, conviction and sentence in a prosecution under Section 55(a) of the Abkari Act, 1077. 2. The prosecution case is that, on 28.04.2000, at about 06.05 hours, MO1 can which contained 25 litres of arrack was found concealed under the firewood kept at the courtyard of the house of the appellant at the place Odanavattom. PW3 Sub Inspector seized the can containing arrack as per Ext.P1 mahazar. He took samples of the liquid from the can. He arrested the appellant who was standing near the firewood. He returned to the police station and registered Crime No.118/2000 of Pooyapally police station under Sections 55(a) and 55(i) of the Abkari Act. After completing the investigation of the case, he filed Crl.A.No.876/2008 3 chargesheet against the appellant. 3. The trial court framed charge against the appellant for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The appellant denied commission of the offences alleged against him. Thereupon the prosecution examined PW1 to PW3 and marked Exts.P1 to P4. MO1 and MO2 were also marked. During the examination under Section 313 Cr.P.C, the appellant took up the plea that it is a false case. DW1 was examined on the side of the appellant to prove this plea. 4. After appreciating the evidence adduced in the case, the trial court found the appellant not guilty of the offence punishable under Section 55(i) of the Abkari Act but found him guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder. The trial court sentenced the appellant to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. Crl.A.No.876/2008 4 5. Heard learned counsel for the appellant and the learned Public Prosecutor. 6. PW1 is the independent witness examined by the prosecution to prove the occurrence. He did not support the prosecution case. He even denied the signature in Ext.P1 mahazar. 7. PW3 is the Sub Inspector who detected the offence. PW2 is the police constable who was accompanying PW3. They have given evidence regarding the occurrence. Their evidence is more or less consistent with regard to the particulars of the occurrence. Learned Sessions Judge has found that their testimony regarding the occurrence is reliable and trustworthy. 8. On a close scrutiny of the evidence of PW2 and PW3, I find that implicit reliance cannot be placed upon their testimony to find that MO1 can containing any liquid was seized from the possession of the appellant. Mere consistency in the evidence of two witnesses is not sufficient to render it reliable and trustworthy. There are infirmities in the evidence of PW2 and PW3 which go to the root of the prosecution case against the Crl.A.No.876/2008 5 ## appellant. 9. The evidence of PW2 and PW3 is that the appellant was found standing near the firewood kept at the courtyard of the house. Even if it is accepted that MO1 can containing arrack was found concealed under the firewood, the mere fact that the appellant was found standing near the firewood does not mean that he was in possession of the contraband liquor. There is no documentary evidence adduced by the prosecution to prove that the house or the property concerned belonged to the appellant or that the house or the property was in his possession. 10. PW3 has given evidence that it was as per the statement made by the appellant that MO1 can containing the liquid, which was concealed under the firewood, was seized. The exact statement made by the appellant to PW3 is not in evidence. Therefore, it cannot be found that it was the information furnished by the appellant which led to the recovery of MO1 can which was concealed under the firewood. 11. It is stated that after seizure of the can containing arrack, PW3 arrested the appellant. However, no arrest memo is Crl.A.No.876/2008 6 seen marked in the case. PW3 Sub Inspector has not even given any evidence that he prepared arrest memo at the time of arresting the accused. Absence of the arrest memo in evidence makes the alleged arrest of the appellant from the scene of the occurrence doubtful. 12. Ext.P3 property list is dated 28.04.2000. However, MO1 can containing the liquid and the sample were produced before the court concerned only on 09.05.2000. PW3 Sub Inspector has not given any satisfactory explanation for the delay in producing the material objects before the court. He has stated that the delay occurred due to pressure of work. This explanation given for the delay is not convincing. There is also no evidence forthcoming as to the person who was in custody of the can containing the liquid and the samples during the period from 28.04.2000 to 09.05.2000. Inordinate delay in the production of the material objects before the court and absence of proper explanation for such delay are sufficient grounds to acquit the accused in a case of this nature (See **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353)** . Crl.A.No.876/2008 7 13. There is also another lacuna in the prosecution evidence. The forwarding note prepared by the investigating officer for sending the sample for chemical examination is not marked in the case. The prosecution, in a case of this nature, can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamperproof condition. No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See **Ravi v. State of Kerala: 2011 (3) KHC 121: 2011 (3) KLT 353** ). Mere seizure of liquor alone is not sufficient to prove that the accused had committed the offence. The link between the accused and the alleged contraband article has to be established by the prosecution. It has to be established that the chemical analysis report relates to the representative sample said to have been taken from the contraband liquor seized from the Crl.A.No.876/2008 8 possession of the accused (See **Harijan Pala v. State of Kerala : 2015 KHC 997** ). In the absence of specimen impression of the seal used for sealing the article having been produced in court and in the absence of producing and marking the forwarding note which is expected to contain the specimen impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the article was produced in court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of the contraband liquor alleged to have been seized from the possession of the accused. If this is not proved to the satisfaction of the court, then it cannot be said that the prosecution has succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused (See **Prakasan v. State of Kerala :** Crl.A.No.876/2008 9 ## **2016 KHC 96** ). 14. The abovementioned aspects were not considered by the trial court while appreciating the prosecution evidence. In the said circumstances, the order of conviction and sentence passed against the appellant cannot be sustained. 15. The appellant had got a plea before the trial court that the case was one foisted upon him by PW3 Sub Inspector due to his personal animosity towards him. It is alleged that there was a protest campaign in the locality to remove a toddy shop owned by one Shafi from the premises of a temple and that the appellant was the leader of the protest campaign. It is alleged by the appellant that Shafi was a relative of PW3 Sub Inspector and it is the reason for PW3 to implicate him in a false case. DW1 was examined by the appellant to prove the aforesaid plea. However, in view of the lacunae in the prosecution case which have been adverted to earlier, it is not necessary to consider whether the plea of the appellant is true or not. 16. In the result, the appeal is allowed. The order of conviction and sentence passed against the appellant is set aside. Crl.A.No.876/2008 10 The appellant is found not guilty of the offence punishable under Section 55(a) of the Abkari Act and he is acquitted. The bail bond executed by the appellant stands cancelled and he is set at liberty. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/25/07/2019 True Copy PS to Judge