Shobha, Valsala and Devi v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 ``` ``` CRL.A NO. 982 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 03.04.2006 IN S.C. NO.643/2005 ON THE FILES OF THE ADDITIONAL DISTRICT COURT AND SESSIONS JUDGE, FAST TRACK (ADHOC-I), KOZHIKODE ``` ## **`APPELLANT/ACCUSED:`** ``` 1SHOBHA W/O SREEDHARAN, OTHAYOTH MEETHAL (HOUSE), KUNNATHARA,(PO), KOZHIKODE (DIST). ``` - **`2 VALSALA W/O.KUNHIRAMAN CHAMMIL MEETHAL (HOUSE), KUNNATHARA (PO),KOZHIKODE (DIST).`** ``` 3DEVI, W/O.VELUKUTTY PARAKANDY MEETHAL (HOUSE), KUMMATHARA (PO), KOZHIKODE (DIST). ``` ``` BY ADV SANTHARAM.P ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`BY ADV`** ``` SRI. SUDHEER GOPALAKRISHNAN - PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2022, THE COURT ON 03.03.2022 DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 982 OF 2006 ``` ``` 2 ``` ## **`JUDGMENT`** The appellants 3 in numbers are the accused Nos. 1 to 3 in S.C. No.643/2005 on the file of the Additional Sessions Judge, Fast Track (Adhoc I), Kozhikode. The aforesaid case arises from Crime No.25/2003 of Vadakara Excise Range Office which was registered against the appellants herein for the offences punishable under Section 55(a) of Abkari Act. 2. The prosecution case is that on 10.07.2003 while the Excise Inspector, Nadapuram and his party were conducting vehicle checking in front of Azhiyur Government L.P.School, nearby Azhiyur check post on 7.40 a.m., they stopped a bus bearing No.KL-13/B 1 coming from Thalassery to Calicut. On searching the bus, they found the appellants sitting immediately behind the driver’s seat with one big-shopper bag each in their possession. On examination of the said bags, they found a total number of 172 bottles of various quantities of Indian Made Foreign Liquor were found. As the appellants were not having any documents authorizing their possession and transportation of Indian made foreign liquor at the such huge quantity, they were ``` CRL.A NO. 982 OF 2006 ``` ``` 3 ``` arrested with the help of two Women Police Constables of Vadakra Police Station. One bottle each from the aforesaid bags were opened by the inspection team for identifying it as Indian made foreign liquor and the said bottles were taken as samples by affixing seals on the same. Thereafter the accused persons along with the contraband articles were brought to Vadakara Excise Office and a case was registered against them. The appellants and the articles were produced before the Judicial First Class Magistrate Court, Vadakara on the same day. 3. After completing investigation, the Excise Inspector, Vadakara submitted final report before the Judicial First Class Magistrate Court, Vadakara where it was taken into file as C.P. No.57/2005. Upon completing procedural formalities, the case was committed to Court of Sessions, Kozhikode from where it was made over to Additional Sessions Court Fast Track (Adhoc – I), Kozhikode where it was tried as S.C. No.643/2005. 4. In order to substantiate the prosecution case, PWs 1 to 6 were examined, Exts.P1 to P6 were marked and material objects 1 to ``` CRL.A NO. 982 OF 2006 ``` ``` 4 ``` 11 were identified. After completion of prosecution evidence, appellants were examined under Section 313 Cr.P.C. and the incriminating materials brought out during the course of trial were put to them. All of them denied the same and pleaded innocence. No defence evidence was adduced from the side of the appellants. 5. After appreciating materials available on record, the learned Sessions judge arrived at the conclusion that the appellants are guilty of the offences and accordingly they were sentenced to undergo rigorous imprisonment for 2 years each and to pay a fine of Rs.1 lakh each with default sentence of rigorous imprisonment for six months each. This appeal is filed by the appellants challenging the aforesaid finding of conviction and consequential sentence. 6. Heard Sri.Santharam P., learned counsel for the appellants and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State. 7. Learned counsel for the appellants contends that the prosecution could not establish the guilt of the accused beyond reasonable doubt. It is pointed out that the articles were found in ``` CRL.A NO. 982 OF 2006 ``` ``` 5 ``` front of the seats where the appellant persons were sitting. There is nothing to indicate conscious possession of the appellants over the aforesaid articles. The bus is a public conveyance where a large number of passengers were there and in the absence of any specific evidence connecting the appellants with the articles seized, it is not possible to convict the accused. It is also pointed out that the prosecution failed to establish the fact that the sample allegedly collected from the appellants were forwarded to the chemical examiner in a tamper proof condition. In such circumstances, it is not possible to conclude that the sample which was subjected to chemical analysis is drawn from the liquor allegedly seized from the possession of the appellants. In such circumstances, interference in the order of conviction passed by the learned Sessions Judge is sought for. 8. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. It is pointed out that the evidence in the form of PWs 1 and 2 coupled with the contemporaneous documents such as Exts.P1, P2, P3 and Ext.P6 analysis report would ``` CRL.A NO. 982 OF 2006 ``` ``` 6 ``` clearly establish the guilt of the appellants. By relying upon the said materials, it was prayed that the appeal is only to be dismissed. 9. The first contention put forward by the learned counsel for the appellants is that the conscious possession of the appellants is not proved by the prosecution. Ext.P2 is the seizure mahazar. In the aforesaid document it is mentioned that when PW1 – detecting officer along with PW2 inspected the vehicle, the appellants were found in possession of three big-shopper bags containing bottles of Indian made foreign liquor. As per the said document, the aforesaid bottles were purchased by the appellants from Mahe, which comes under Pondicheri, and were being transported to Kerala without any documents authorizing them to do so. However, in the chief examination of PW1, he has stated that when they inspected the bus three big shopper bags were found in front of seats where the appellants were sitting. The aforesaid seats were located immediately behind the driver seat. In cross-examination he has stated that when they conducted inspection, the appellants were holding their big shopper bags which were placed in front of them. The aforesaid ``` CRL.A NO. 982 OF 2006 ``` ``` 7 ``` statement is not there in Ext.P1 mahazar. PW2 is the other witness who is the Preventive Officer accompanied PW1 while conducting the inspection. His evidence is that the appellants were found in possession of the big shopper bags during the course of inspection. Whether it was placed in front of them or they were holding the same is not clear from the deposition of PW2. It is discernible from the evidence of PW1 that at the time of inspection there were passengers sitting on all the seats. Another witness examined by the prosecution to prove the seizure of the articles from the appellants is PW4 who is the conductor of the bus. He turned hostile to the prosecution, even though he admitted his signature in Ext.P2. However, he has stated that 2 or 3 ladies were arrested on that day from the bus, but according to him they were standing on the bus at the relevant time. It also a fact that the prosecution did not adduce any material to indicate that the appellants got into the bus from Mahe from where the articles were allegedly procured. From the evidence of PW4 it is evident that the aforesaid bus was plying in the route Parassinikadavu to Kozhikode and Mahe is a place in between. Thus there is no ``` CRL.A NO. 982 OF 2006 ``` ``` 8 ``` evidence available on record indicating that the appellants got into the bus from Mahe. Considering the nature of inconsistency as mentioned above with regard to the exact place where the articles were found and the doubt as to whether the appellants were actually holding the big shopper bags, the benefit of doubt is to be given to the appellants. It is also a relevant fact that the prosecution could not produce the bus tickets indicating their travel from Mahe and there are no other evidence showing that the accused got into the bus from Mahe. 10. There is yet another aspect which indicates a serious lacuna in the prosecution case. Ext.P5 is the forwarding note by which the samples were forwarded to the chemical examiner. On perusal of the same it can be seen that name of the Excise Guard with whom the sample was entrusted with for handing over the same to the chemical examiner is not mentioned. The column specified for the same is kept blank. Even though it contained an endorsement made by the Magistrate concerned, indicating the forwarding of the sample to the chemical examiner, there also, the name of the Excise ``` CRL.A NO. 982 OF 2006 ``` ``` 9 ``` Guard was kept blank. Apart from the above, the said endorsement does not contain the date on which the said sample was forwarded for examination. In **Kumaran P. v. State of Kerala and Another [2016 (5) KHC 632]** this Court considered the impact of non-mentioning of name of Excise Officer through whom the samples were forwarded for chemical examination. It was observed that in the said decision that in the absence of name of the Guard mentioned therein, the Thondi Clerk of the court or the Excise Guard ought to have been examined before the court. In the absence of such materials, it cannot be concluded that the samples were forwarded to the chemical examiner in a tamper proof condition. The aforesaid view is reiterated by this Court in **Jayakumar v. State of Kerala [2018 (1) KLT SN 65 (case No.88)]** and **Thomas @ Joy v. State of Kerala [2021 (5) KHC 410].** Thus in the light of the aforesaid principles also, the appellants are entitled for benefit of doubt. 11. In such circumstances, the irresistible conclusion possible is that prosecution failed to establish the guilt of the accused. The appellants are entitled for benefit of doubt due to the reasons ``` CRL.A NO. 982 OF 2006 ``` ``` 10 ``` mentioned above. In the result, this appeal is allowed, judgment dated 03.04.2006 in S.C. No.643/2005 passed by the Additional District and Sessions Judge, Fast Track Court (Adhoc – I) Kozhikode is hereby set aside and the appellants are acquitted of all the charges. Their bail bonds shall stand cancelled. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` SCS