Shanen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2013/3RD ASWINA, 1935** **CRL.A.No. 506 of 2005 (C) --------------------------** **AGAINST THE JUDGMENT IN SC 294/2004 of ADDITIONAL DISTRICT & SESSIONS COURT(AD HOC)III, KOLLAM, DATED 10-02-2005** **APPELLANT(S)/ACCUSED::** **----------------------** **SHANEN,** **S/O.KUTTAPPAN, SHINY BHAVANATHIL, KOTTACKUPURAM, KULASEKHARAPURAM VILLAGE KARUNAGAPPALLY, KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT(S)/COMPLAINANT::** **---------------------------** **STATE OF KERALA EXCISE RANGE INSPECTOR, KARUNAGAPPALY, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR ADV.SMT.M.T.SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 506 of 2005 ----------------------------------------** Dated this the 25[th] day of September, 2013 ## **J U D G M E N T** Challenging the judgment dated 10.2.2005 in S.C.No.294 of 2004 of the court of the Additional District and Sessions Judge, (Adhoc-III), Kollam, the appellant/the sole accused therein preferred the above appeal since he is convicted and sentenced for the offence under Section 55(a) of the Abkari Act. 2. The prosecution case is that while the Preventive Officer and party attached to the Excise Range Office, Karunagappally were on patrol duty on 8.3.2002 in the evening, they found the accused in Vallikkavu Public Market Road in Kulasekharapuram Village, Karunagappally Taluk, to the north-west of the printing press of one Joseph Kutty, carrying in his hand MO1 white plastic bottle of 750 ml. containing arrack and he was stopped for questioning and on inspection of the bottle, the content of the same was identified as Crl.A.No.506 of 2005 **==> picture [21 x 9] intentionally omitted <==** illicit arrack. Thus, according to the prosecution, the accused has committed the offence punishable under Section 55(a) of the Abkari Act and Crime No.45 of 2002 was registered in the Karunagappally Excise Range for the said offence. 3. On completing the investigation in the above case, a report was filed, based upon which finally S.C.No.294 of 2004 was instituted in the Sessions Court, Kollam and the said case is finally made over to the present trial court for disposal. On appearance of the accused, after hearing both the prosecution and the defence, a formal charge was framed against the accused for the offence punishable under Section 55(a) of the Abkari Act, which when read over and explained to the accused, he denied the same and pleaded not guilty. Thus, the trial proceeded further during which Pws.1 to 6 were examined and Exts.P1 to P5 were produced. MO1 is also identified as material object. The trial court finally found that the accused has committed the offence punishable under Section 55(a) of the Abkari Act and Crl.A.No.506 of 2005 :-3-: accordingly, he is convicted thereunder and on such conviction, he is sentenced to undergo rigorous imprisonment for one year and to pay a fine of rupees one lakh and in default, he is directed to undergo rigorous imprisonment for six months. Set off is allowed. Assailing the above finding, the order of conviction and the sentence, the accused therein preferred the present appeal. 4. I have heard Sri. B.Mohan Lal, learned counsel appearing for the appellant and Smt.M.T.Sheeba, the learned Public Prosecutor for the State. 5. To prove the prosecution allegation, though Pws.1 and 2, who are attestors to Ext.P1 seizure mahazar and independent witnesses, were examined, they turned hostile to the prosecution. Therefore, the prosecution heavily relying upon the evidence of Pws.3,4,5 and 6, attempted to substantiate their allegation against the accused. PW3 is the Preventive Officer then attached to Karunangappally Excise Range, who detected the crime and PW4 was Crl.A.No.506 of 2005 **==> picture [21 x 9] intentionally omitted <==** the then Excise Guard attached to the same Excise Range, who accompanied PW3 at the time of the detection of the crime. When Pws.3 and 4 were examined, they have deposed in terms of the prosecution allegation. When PW3 was examined, Ext.P1 seizure mahazar and Ext.P2 arrest memo were marked. Both Pws.3 and 4 identified MO1 bottle, which is said to have seized from the possession of the appellant. According to Pws.3 and 4, while they were on patrol duty on 8.3.2002 and when reached the north-west of the printing press of one Joseph Kutty along with Vallikkavu Public Market Road in Kulasekharapuram Village in Karunagappally Taluk, they saw the accused carrying in his hand MO1 white plastic bottle of 750 ml. containing arrack and he was intercepted and questioned. When the bottle was opened in the presence of independent witnesses, the content of the same was realised as illicit arrack. So, according to them, the accused was arrested then and there and sample was collected from the contraband article and sample was sealed and Crl.A.No.506 of 2005 :-5-: labelled in the presence of independent witnesses and the entire proceedings are recorded in Ext.P1 mahazar. According to Pws.3 and 4, on completing the proceedings, they returned to the Excise Range Office and thereafter,the accused as well as the material objects and other documents were handed over to PW5. Further, it is the claim of PW5 that on receipt of the materials and the accused, he had preferred Ext.P3 occurrence report and produced the accused and other articles before the court on the very next day. According to PW5, he had prepared Ext.P4 forwarding note requesting the court to send the sample for chemical analysis and consequently received the chemical analysis report which is marked as Ext.P5 through PW6. It is on the basis of the above evidence and materials, the trial court found that the appellant/accused is guilty of the offence under Section 55(a) of the Abkari Act. 6. Learned counsel appearing for the appellant vehemently submitted that the contraband article involved in the present case is Crl.A.No.506 of 2005 :-6-: illicit arrack and not any foreign liquor and therefore, no offence under Section 55(a) would attract against the accused. It is also the contention of the learned counsel for the appellant that there is substantial delay in producing the sample and the material objects before the court for which there is no proper explanation, but the trial court did not consider those vital, legal and factual issues and erroneously convicted the appellant. Thus, according to the learned counsel for the appellant, 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 argued that though Pws.1 and 2 turned hostile, the evidence of PWs.3 and 4 positively proved the seizure of the contraband article from the possession of the appellant and other contemporary documents including Exts.P1 and P2 strengthen the evidence of Pws.3 and 4. According to the learned Public Prosecutor, the investigation in the case has been conducted properly and on the next day to the arrest of Crl.A.No.506 of 2005 **==> picture [21 x 9] intentionally omitted <==** the appellant, he was produced before the court and the contraband articles including the sample were also produced before the court and the contemporary documents Exts.P3 and P4 and evidence of Pws.5 and 6 proved the above facts. Hence, according to the learned Public Prosecutor, the trial court is correct and justified in convicting the appellant and therefore, no interference is warranted. 8. I have carefully considered the arguments advanced by the counsel for the appellant as well as the learned Public Prosecutor. I have also perused the evidence and other materials on record. 9. One of the contentions raised by the counsel for the appellant is that as the contraband article involved in the present case is illicit arrack, Section 55(a) of the Abkari Act is not attracted and therefore, the findings of the court below and the conviction recorded are not justified. A learned Judge of this Court in the decision reported in **Jose** v. **State of Kerala** [2007(2) KLT 202] has observed that the specific penal provision pertaining to arrack that contained in Crl.A.No.506 of 2005 **==> picture [21 x 9] intentionally omitted <==** Section 8 of the Abkari Act came into effect from 3.6.1997 and there cannot be any dispute that arrack consists of alcohol, namely Ethyl Alcohol. So arrack is liquor the possession of which incidental to transportation will squarely attract Section 55(a) of the Abkari Act. Consequently, it was held that conviction could have been recorded under any of the penal provisions, viz., 8(2),55(a) or 58 of the Abkari Act. So, according to me, in the light of the above decision, the first point raised by the counsel for the appellant cannot be approved. 10. But the contention raised by the counsel about the delay in producing the contraband article and the sample before the court requires serious consideration. As per the evidence of Pws.3,4 and 5, the alleged seizure was effected on 8.3.2002 and the contraband article and the documents etc. were entrusted with PW5 on the same day, who in turn claimed that the same has been produced before the court on the next day i.e., on 9.3.2002. In this case, it is relevant to note that the property list is not produced and marked during the trial. Crl.A.No.506 of 2005 :-9-: From the property list found along with the case bundle, it is seen received by the court only on 13.3.2002. The further endorsement on the reverse side of the property list shows that the properties were given back to the Excise Authorities for safe custody on 13.3.2002 itself. Had the property been produced on 9.3.2002, there was no necessity for such an endorsement. So, the claim of PW5 that he produced the contraband article and samples before the court on 9.3.2002 is false. From the records, it can be seen that the same were produced before the court only on 13.3.2002. If that be so, it was incumbent upon the prosecution particularly for PW5 to explain the delay that occurred in producing the contraband article and the sample and also to give evidence that he had kept the samples and contraband articles in safe custody. But, absolutely there is no explanation for the delay. In the chief examination, he has stated as follows:- “ ത��ണ� ക��ട��യ�ല പ��കയയ�� ത��ണ�യ�� 9.3.02-ല ഹ�ജര�ക� അ�� വതര ത��ണ� എത� സ�ക�പ�ല�യ�ര�ന�.” Crl.A.No.506 of 2005 :-10-: He had also stated that forwarding note was furnished by him. But during cross-examination, he had admitted that as per the property list, the contraband articles were received in the court on 13.3.2002. The learned Judge, who recorded the deposition of PW5, has recorded that “ പകക ഞ�ന 9.3.02-ല ഹ�ജര�ക�. ഈ interval period -ല property എവ�തടയ�യ�ര�ന� എന& എഴ���യ�ട�കണ�അറ�യ�ല&ല (? A) ” So, absolutely, there is no explanation or evidence for the delay in producing the contraband articles as well as the samples. Since PW5 claimed that he produced the contraband articles on 9.3.2002 itself, the question remained as unanswered is as to who was the custodian of the same till the articles and samples are produced before the court on 13.3.2002. According to me, the above facts and circumstances assume importance in view of Ext.P4 forwarding note. Though PW5 claimed that he produced Ext.P4 forwarding note, there is no endorsement on Ext.P4 as to when it was received by the learned Magistrate and when the same sent for chemical analysis. On a Crl.A.No.506 of 2005 :-11-: perusal of Ext.P4, it is seen that the Excise Inspector, Karunagappally put his signature with date as 9.3.2002. Though there is a tick mark (suppose to be the signature) in the place provided for counter signature, no date is mentioned and the details of the court is not seen mentioned. It is also relevant to note that in the space provided for sample seal, no sample seal is seen affixed. So, according to me, no evidentiary value can be given to Ext.P4 forwarding note, especially when the other documents including the property list reached in the court only on 13.3.2002. It is seen from Ext.P5 chemical analysis report that the seal on the bottle was intact and found tallied with the sample seal provided. In Ext.P4 forwarding note, there is no such sample seal. Thus, the endorsement contained in Ext.P5 is not tallying with Ext.P4. So, Ext.P5 chemical analysis report cannot be treated as report with respect to the sample allegedly drawn as per Ext.P1 mahazar. A learned Judge of this Court in the decision reported in **Sasidharan** v. **State of Kerala** [2007(1) KLT 720] has Crl.A.No.506 of 2005 **==> picture [27 x 9] intentionally omitted <==** held that without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the prosecution cannot be held to have brought home the offence against the appellant. In the present case, though the prosecution has no case that the sample was drawn from the court, the absence of sample seal in Ext.P4 forwarding note, goes against the prosecution and it cannot be said that the sample reached in the hands of the chemical analyst through a tamper proof despatch. Particularly, PW5 has no explanation for the delay and the safe custody of the sample till the same is produced before the court. In the light of the above discussion and the evidence and materials referred to above, I am of the view that the trial court has miserably failed to consider the above serious lacuna in the prosecution case and the insufficiency of evidence to substantiate its Crl.A.No.506 of 2005 :-13-: allegation against the appellant/accused beyond reasonable doubt. So, according to me, the appellant is entitled to get the benefit of doubt and extending the same, the conviction recorded by the trial court is set aside. In the result, the above appeal is allowed setting aside the judgment dated 10.2.2005 in S.C.No.294 of 2004 of the court of Additional District and Sessions Judge (ADHOC-III), Kollam and the appellant/accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him shall stand cancelled and he is set at liberty. **V.K.MOHANAN, Judge** MBS/ ## Crl.A.No.506 of 2005 :-14-: