Shaji @ Kakkassery Goerge v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** ## **CRL.A.No.392 OF 2007** **AGAINST THE JUDGMENT IN SC 116/2005 OF ADDITIONAL SESSIONS COURT (ADHOC), THALASSERY** ## **AGAINST THE JUDGMENT IN CP 208/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,MATTANNUR** ## **APPELLANT/ACCUSED:** ## **SHAJI @ KAKKASSERY GOERGE,** **S/O. KUNHOONHU, AGED 34 YEARS, KOKKAD, VAYATHUR AMSOM DESOM.** ## **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 SUB INSPECTOR OF POLICE, ULIKKAL POLICE STATION.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **SRI SANTHOSH PETER SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-07-2020, THE COURT ON 13-07-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.392 OF 2007** **2** ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.392 of 2007 -----------------------------------------Dated this the 13[th] day of July, 2020 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.116/2005 on the file of the Court of the Additional Sessions Judge, Thalassery. 2. The prosecution case is that, on 23.01.2003, at about 16.45 hours, at a public road at the place Kokkadu, PW1 Sub Inspector found the appellant/accused having in his possession a plastic bag containing 25 packets of arrack, each packet of the capacity of 100 ml. 3. The trial court framed charge against the accused for the offence punishable under Section 55(a) of the Abkari Act, 1077. The appellant/accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P7 documents. No evidence was adduced by the accused. 5. The trial court found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him **CRL.A.No.392 OF 2007** **3** thereunder and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of fifteen days. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard the learned counsel for the appellant and also the learned Public Prosecutor. Perused the records. 8. PW1 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW4 is the police constable who was in the police party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. PW3 is the independent witness examined by the prosecution to prove the occurrence. He denied having seen the incident. But, he admitted his signature in Ext.P2 seizure mahazar. PW2 is the Sub Inspector who conducted the investigation of the case. 9 Ext.P6 is the chemical examination report received in respect of the sample of liquid which was forwarded for analysis. It shows that the sample of liquid contained 34.51% by volume of ethyl alcohol. **CRL.A.No.392 OF 2007** **4** 10. On perusing the evidence adduced by the prosecution and the judgment of the trial court, I find that conviction of the appellant by the trial court cannot be sustained for several reasons. 11. PW1 has given evidence that he arrested the accused at the spot of the occurrence. Ext.P1 is the arrest memo allegedly prepared by PW1 at the spot of the occurrence on arresting the accused. The date and time of the arrest are shown in Ext.P1 arrest memo as 23.01.2003 at 16:50 hours. 12. PW1 has given evidence that, on returning to the police station, he registered case against the accused. Ext.P3 is the first information report registered against the accused as Crime No.19/2003 of Ulikkal police station. It shows that the case was registered at 17.45 hours on 23.01.2003. 13. Ext.P1 arrest memo allegedly prepared by PW1 at 16:50 hours on 23.01.2003, on arresting the accused at the spot of the occurrence, bears the crime number of the case which was registered at 17:45 hours on that day. The prosecution has not offered any explanation for this anomaly. 14. When the prosecution case is that the seizure was effected and the accused was arrested prior to the registration of the first information report, presence of the crime number of the case in the **CRL.A.No.392 OF 2007** **5** arrest memo prepared by the detecting officer at the spot of the occurrence, in the absence of any explanation offered by the prosecution, seriously reflects upon the veracity of the prosecution version of the incident and it creates a good deal of doubt about seizure of the contraband substance in the manner alleged by the prosecution. It creates a deep dent on the veracity of the case put forward by the prosecution (See **Rafeeque v. Sub Inspector : 2020** ## **(3) KHC 715 : 2020 (4) KLT 188)** . 15. PW1 has given evidence that he produced the sample before the court on the next day of the occurrence. There is no record of it in evidence. The list of properties, which should have been prepared by PW1 for producing the sample in the court, is not tendered in evidence and marked by the prosecution. 16. PW1 has given evidence that he had affixed label, bearing his signature and the signature of the witnesses and the accused, on the sample bottle. The description of the sample given in Ext.P5 forwarding note does not show that there was any such label on the bottle containing the sample which was forwarded for analysis. The specimen of the seal which was allegedly affixed by PW1 on the bottle containing the sample is provided in Ext.P5 forwarding note. But, PW1 has not given any evidence as to the nature of the seal affixed by him **CRL.A.No.392 OF 2007** **6** on the sample bottle. The specimen of the seal used by him is also not given in Ext.P2 seizure mahazar. 17. In the aforesaid circumstances, there is no reliable evidence to find that the very same sample allegedly drawn by PW1 at the spot of the occurrence was produced in the court and forwarded for chemical analysis and that Ext.P6 chemical analysis report relates to that sample itself. 18. Mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** ). Credible evidence shall be adduced by the prosecution to prove that the sample tested related to the very same substance seized from the accused (See **Hanif Khan @ Annu Khan v. Central Bureau of Narcotics : 2019 SCC OnLine SC 1810** ). 19. The bulk quantity of arrack allegedly seized from the possession of the accused was not produced before the court. Of course, if the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband substance need not be produced before the court [See **State of Rajasthan v. Sahi Ram : AIR 2019 SC 4723** and **Than Kunwar v. State of** **CRL.A.No.392 OF 2007** **7** **Haryana : 2020 (1) KLD 476 (SC) : 2020 (2) KLT OnLine 1135 (SC)** ]. But, this is a case in which the seizure of the bulk quantity of arrack from the possession of the accused is not proved otherwise by reliable evidence. 20. The prosecution case is that, instead of producing the bulk quantity of arrack before the court, it was produced before the Assistant Excise Commissioner and that certificate of inventory was obtained from the Magistrate concerned. Ext.P4 is the inventory prepared by the Assistant Excise Commissioner. The Magistrate concerned has made the endorsement “verified and found correct” on it. The article produced before the Magistrate for verification was a sealed plastic bag which allegedly contained 23 packets of arrack. There is no evidence to find that the Magistrate had opened the plastic bag after breaking the seal on it and verified the contents. In such circumstances, the certificate made by the Magistrate that “verified and found correct” cannot be accepted as primary evidence of the offence as envisaged under Section 53A(5) of the Abkari Act. 21. When there is infirmity in the inventory certificate issued by the Magistrate, non-production of the bulk quantity of the contraband substance before the trial court, affects the credibility of the prosecution case regarding seizure of such substance from the **CRL.A.No.392 OF 2007** **8** ## possession of the accused (See **Balakrishna Rai v. State of Kerala : 2020 (3) KHC 286: 2020 (3) KLT 727** ). 22. There is yet another infirmity in the prosecution case. The investigation of the case was conducted by PW2 who was the Sub Inspector of Aralam police station. The offence was allegedly committed within the limits of Ulikkal police station. As per the notification issued by the Government as G.O(P)No.69/96/TD dated 29.03.1996 (SRO No. 321/96), police officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the general executive branch of the police department have been designated as Abkari Officers, to exercise the powers conferred upon such officers under the Abkari Act, under their respective jurisdiction only. Therefore, PW2 had no authority to conduct the investigation of the case. He has given evidence that he conducted the investigation of the case as per the direction of the Circle Inspector. The Circle Inspector had no authority under the Abkari Act to empower PW2 to conduct the investigation of an offence under the Abkari Act which was committed outside the area of his (PW2) jurisdiction. Appointment of Abkari Officer under Section 4(d) of the Abkari Act can only be made by the government. 23. A police officer in the rank of Sub Inspector, who is invested **CRL.A.No.392 OF 2007** **9** with the powers of an 'Abkari Officer', has authority to exercise such powers only within the area of his jurisdiction (See **Narayanankutty** **v. State of Kerala : 2015 (1) KHC 702, Rajappan v. State of Kerala : 2016 (3) KHC 356, Velutha v. Sub Inspector of Police : 2016 (4) KHC 206: 2016 (3) KLT 846, Mahesh v. State of Kerala : 2017 (1) KHC 120 and Kunhanna Poojari v. State of Kerala: 2019 (4) KHC 292 : 2019 (4) KLT 91** ). When the investigation of the offence is made by an officer, who is not empowered as per the provisions of the statute concerned, the trial is vitiated (See **Roy v. State of Kerala : AIR 2001 SC 137** ). Conviction recorded against the accused in such a case cannot be sustained. 24. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 55(a) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. ## **R.NARAYANA PISHARADI, JUDGE** jsr