IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
THURSDAY, THE 7TH DAY OF JUNE 2012/17TH JYAISHTA 1934
CRL.A.No. 416 of 2004 (C) ------------------------SC.251/1999 of I ADDL.D.C (ADHOC-I),KOLLAM CP.147/1998 of J.M.F.C.-I, KOLLAM
APPELLANT/ACCUSED.: -------------------
SHAJI KUMAR, S/O.SADHASIVAN, ANIL BHAVANAM VEEDU, NEAR KUNDARA PALLIMUKKU, KANJIRACODE CHERRY, MULAVANA VILLAGE.
BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL
RESPONDENT/COMPLAINANT AND STATE.: ----------------------------------
STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. HYMA S.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/-
## **P.S.GOPINATHAN, J.**
**---------------------------------------Crl.A.NO. 416 OF 2004 ---------------------------------------Dated this the 7[th] day of June, 2012**
## **J U D G M E N T**
The Additional Sessions Judge (Adhoc-I), Kollam in Sessions Case No.251/1999 found the appellant guilty for offence under Section 55 (a) of the Abkari Act. Consequently, he was convicted and sentenced to rigorous imprisonment for five years and a fine of Rs.1,00,000/- with a default sentence of simple imprisonment for a further period of one year. Assailing the above conviction and sentence this appeal is preferred.
2. I have heard the learned counsel appearing for the appellant besides the learned Government Pleader. The judgment impugned and the evidence on record were perused.
3. The prosecution case is that on 27/7/1997 at about 7.30 P.M. while PW3, the Sub Inspector of Police Kundara on moving petrol duty, got information that somebody was selling illicit liquor
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behind a pan shop of one Sadasivan near the railway gate. PW3 and party proceeded to the spot and found the appellant putting something in a hurry to a plastic cover and to escape. The appellant was intercepted. The contents in the plastic cover were examined and found that there were 25 packets of 100ml capacity with full of illicit liquor. The contents of the packets were tested by smell and taste and convinced that the liquid contained in the packets was nothing but illicit liquor. The appellant was arrested. The material objects were seized. A jerry can was purchased from the nearby shop. All the plastic packets were opened and the contents were taken in the jerry can. 250ml was taken in a sample bottle. The jerry can and the sample bottle were sealed. The plastic packets with the plastic cover were seized. Exhibit P1 mahazar was prepared wherein PW1, an independent witness is the attester. Returning the police station a case as Crime No.364/1997 for offence under Section 55 (a) of the Abkari Act was registered for which Exhibit
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P2 First Information Report was prepared. He proceeded with the investigation and filed the charge sheet.
4. PW1, though admitted his signature in Exhibit P1 would deny of witnessing the arrest of the appellant or the seizure of the contraband. He would further depose that when he affixed his signature the paper was blank.
5. PW2 is a Police Constable attached to Kundara Police Station. He would give evidence in support of the evidence adduced by PW3. PW3, the Detecting Officer would depose that, while he moving on petrol duty on 27/7/1997 at 7.30P.M., he got information that somebody was selling illicit arrack behind the pan shop and that soon he proceeded the spot. The appellant was found putting something into a plastic cover and hurried to escape from the spot. He was intercepted. The contents in the plastic cover was examined and
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found that it contained 25 polythene packets each containing 100ml of illicit arrack. The nature of which was tested by smell and taste. He arrested the appellant and the contraband was seized. He would prove Exhibit P1 Mahazar, Exhibit P2 First Information Report, Exhibit P3 property list and Exhibit P4 report of the Chemical Examiner. Exhibit P4 would show that on analysis, it was found that sample contained 25.40% by volume of ethyl alcohol. Though PWs1 and 2 were subjected to searching cross-examination, the defence could not shake the veracity of the testimony of their evidence.
6. The learned counsel for the appellant, relying on the testimony of PW1 and Exhibit P3 property list, would submit that the evidence of PW1 regarding the forwarding of the material objects and sample to the court is not believable and there is every possibility for tampering the sample and material objects. It was also argued that there is inordinate delay in producing the sample before the
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committal court and therefore the appellant is entitled to acquittal atleast on benefit of doubt. In support of his argument the learned counsel would rely upon the decisions of this court in Ravi v. State of Kerala [2011 (3) KLT 353] and the decision in Sasidharan v. State of Kerala [2007(1)KHC 275] wherein the delay in forwarding the sample was found fatal and acquitted the accused.
7. In the chief examination of PW3 there is no mention as to when the sample and other material objects were forwarded to the court or as to who took the material objects to the court. When crossexamined, PW3 would depose that on the same day the material objects were forwarded to the court. But it was returned since the Section Clerk was on leave and thereafter he was keeping the same in his custody. Going by Exhibit P3, I find that the material objects were produced before the court on 12/8/1997 only. After retaining the sample, the other material objects were returned to the
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Investigating Officer for the reason that there was no space in the thondy room. Thereafter when MO1 series were produced back before the committal court is not known. Regarding that there is no evidence on record. The arrest and seizure were at 7.30 P.M. Therefore, the evidence of PW3 in crossexamination that the material objects were sent to the court on the same day and it was returned since the Section Clerk was on leave is not believable. On the other hand, Exhibit P3 would show that the material objects were produced only on 12/8/1997 before the committal court. If that be so, regarding the custody of the material objects, from the date of seizure till its production before the committal court on 12/8/1997, there is no convincing evidence. In the above circumstance, in the light of the decisions referred by the learned counsel, I find some merit in the argument advanced by the learned counsel for the appellant. The evidence of PW3 regarding the forwarding of the material objects to the court or the keeping of the same in his safe custody is not
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believable. Possibility for tampering cannot be ruled out. Therefore, I find that the appellant is entitled to the benefit of doubt.
In the result, this appeal is allowed. While setting aside the conviction and sentence under challenge, the appellant would stand acquitted. The fine amount, if any deposited, shall be refunded.
Sd/- **P.S.GOPINATHAN, JUDGE**
/TRUE COPY/
P.A.TO JUDGE
DSV/-
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