Simon s/o Varghese and Johny s/o Mathew v. State of Kerala

Crl.Appeal.111/2008 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **CRL.A.No.111 OF 2008** **AGAINST THE JUDGMENT IN SC 183/2006 DATED 14-12-2007 OF ADDITIONAL SESSIONS COURT-III (ADHOC-1), THODUPUZHA** ## **APPELLANTS/ACCUSED:** **1 SIMON,S/O.VARGHESE, MANGALASSERIL HOUE, 8TH ACRE BHAGAM, KALLAR KARA, ANAVIRATTY VILLAGE** **2 JOHNY,S/O.MATHEW, NJARALAKKATTU HOUSE, UDUMBANNOOR KARA, UDUMBANNOOR VILLAGE, THODUPUZHA.** **BY ADVS. SRI.K.K.CHANDRAN PILLAI SRI.A.S.SAJUSH PAUL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REP.BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.** **SMT. MAYA M N, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-022020, THE COURT ON 26-02-2020 DELIVERED THE FOLLOWING:** Crl.Appeal.111/2008 2 ## **JUDGMENT** ## **Dated this the 26[th] day of February 2020** The appellants are accused Nos.1 and 2 in S.C.No.183/2006 on the file of 3[rd] Additional Sessions Judge (ADHOC-I), Thodupuzha. Both appellants were tried for charges under Section 55 (a) and (i) and Sec.64 A of Abkari Act (for short 'the Act'). The first accused was found guilty of offence punishable under Section 55(a) alone and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rupees one lakh followed by default sentence of another simple imprisonment of six months. He was acquitted of the offence punishable under Sec.55(i) of the Act. 2. The second appellant was convicted for the offence punishable under Section 64 A of the Act and sentenced to pay fine of Rs.25,000/- with default sentence of simple imprisonment of six months. 3. The appellants were charge sheeted by the Sub Inspector of Police, Adimaly, on the allegation that Crl.Appeal.111/2008 3 the first accused stored, for sale, 20 liters of toddy in MO1 Can, on 26.03.2006 at 6 pm, in a building bearing Door No. PP 10/398 situated in 8[th] Acre, 60[th] Mile Panchayat Road in a coffee plantation close to the road, occupied by second accused and with his permission against the provisions of the Act. 4. The prosecution case is that the patrol party consisting of CW12, the Sub Inspector of Police, Adimaly and PW1 and PW10, Assistant Sub Inspectors of Police attached to the same police station along with others came to the building upon receipt of reliable information of unauthorized use of the building and found the 1[st] accused being present in possession of MO1 Can containing 20 litres of toddy. 5. In the presence of independent witnesses, PWs 2 and 3 claimed to have subjected the liquor to smell and taste test and samples were simultaneously collected in three bottles of 375ml each by CW12, the detecting officer, who later passed away before the commencement of the trial of the case. Since CW12 was satisfied that the toddy seized was stored and sold in an unlicensed premises occupied by the 2[nd] accused and Crl.Appeal.111/2008 4 without the 1[st] accused possessing necessary licence or permit for sale of toddy, he was arrested at 6 pm on 26.03.2004. MO1 Can was taken into custody along with bucket, cups and other utensils seen in the building itself under Ext.P1 Mahazar prepared on the spot itself. Currency notes indicating sale of toddy were also seized from the possession of the 1[st] accused. Sample bottles were labelled in accordance with law and MO1 Can was also labelled and sealed along with the sample bottles. 6. CW12 prepared Ext.P7 _suo motu_ report and conducted preliminary investigation. He prepared Ext.P8 property list and Ext.P9 forwarding note and produced them before the committal court. The arrestee was also produced before the concerned court in accordance with law. Later part of the investigation was taken over by PW9, Sub Inspector of Police, Adimaly. He submitted final report before the committal court from where the case was made over to Court of Sessions, Thodupuzha from where it came to be tried before the 3[rd] Additional Sessions Court (ADHOCI), Thodupuzha, where the charge was framed against Crl.Appeal.111/2008 5 appellants for offences punishable under Sections 55(a)(i) and 64A of the Abkari Act. 7. On the appellants denying charge against them, the prosecution examined PWs 1 to 10 and marked Exhibits P1 to P10 and Mos 1 to 10. While the appellants were questioned under Section 313 Cr.PC, they submitted that they were falsely implicated in the crime. The 1[st] accused said that liquor was seized while he was transporting it in a Can received from DW3 a toddy tapper, about a few yards away from T.S.No.5/2003-04, where he was employed as a toddy worker. He regularly used to collect toddy tapped from DW3 who is a tapping worker. The 2[nd] accused denied that the building from where the contraband liquor was seized either belonged to him or was it ever occupied by him at any point of time. On the side of the appellants, DWs 1 to 4 were examined and exhibits D1 to D6(a) were marked. 8. The court below after hearing both parties and on appreciating evidence on record, found that there was enough evidence to prove that the 2[nd] accused was in occupation of building bearing No.PP.10/398 Crl.Appeal.111/2008 6 from where MO1 allegedly containing toddy and other materials were seized. It also found that the 1[st] accused was arrested from the building and he stored toddy without obtaining necessary licence or permit under the provisions of the Act from the concerned authorities. The court below did not accept the allegation of the prosecution that the toddy stored was proved to be for sale and accordingly 1[st] accused was absolved of charge under Section 55(i) of the Act. Absolution of 1[st] accused from the said charge has become final in as much as the State has not come up in appeal challenging the same. **==> picture [390 x 12] intentionally omitted <==** correctness of the finding of the court below as to whether the 1[st] and 2[nd] accused are guilty of offence punishable under Section 55(a) and under Section 64A of the Act respectively. **==> picture [390 x 9] intentionally omitted <==** appellants and also the learned Public Prosecutor. 11. The learned counsel for the appellants submitted that the 1[st] accused was not arrested nor the contraband seized from his possession but he was taken Crl.Appeal.111/2008 7 to police custody at a time when he was transporting liquor in a Can to T.S.No.5/2003-04, where he had been employed as a toddy worker and he had no connection with the 2[nd] accused or the building from where the liquor was allegedly seized. It was submitted that the seizure mahazar, _suo motu_ report, property list as well as forwarding note relied on by the court below were not legally proved in as much as CW12, the author of these documents was not available for examination at the time of trial following his demise. It is one of his contentions that the samples of toddy alleged to have been kept in MO1 Can were not sealed at all. Nor the seals claimed to have been affixed on the samples were convincingly proved or substantiated. It was submitted that the detecting officer failed to prepare arrest records and this has rendered the prosecution case of arrest and seizure highly improbable. In this respect, he relied on a decision reported in **Ramankutty v. Excise Inspector [2013 (3) KLT (SN) 83]** . It is also one of his contentions that there was inordinate delay in production of Material Objects in court, which is not explained at all by the Crl.Appeal.111/2008 8 prosecution and in this respect he relied on a decision reported in **Ravi v. State [2019(1) KLJ 31]** . The learned counsel for the appellants argued that the alleged search was conducted without search memo mandated by provisions of law being prepared and forwarded to the Court. For all these reasons, according to the learned counsel, prosecution case of alleged seizure of toddy from unlicensed premises cannot be regarded as trustworthy. As regards the alleged occupation of building, it was contended that no convincing evidence was available on record to connect 2[nd] accused. 12. On the other hand the learned Public Prosecutor sought to sustain the impugned order of conviction and sentence relying on the testimonies given by PWs 1 and 10, the Sub Inspectors of Police attached to Adimaly Police Station, who accompanied the detecting officer CW12, who later passed away before the commencement of trial. It was contended that Ext.P7 report, Ext.P8 property list as well as Ext.P9 forwarding note sufficiently proved that samples were properly sealed and adequate safeguards Crl.Appeal.111/2008 9 were taken by the detecting officer to ensure that the sample bottles reached the committal court in a tamper free condition. It was argued that there was no delay at all in production of the Material Objects and the appellants could not take advantage of purported delay at all. It was further submitted that non-preparation of search memo was not fatal when entire evidence on record was considered in as much as the totality of evidence was sufficient to establish that prosecution case of seizure of contraband from the unlicensed premises was reliable and trustworthy. It was also submitted that the records prepared by CW12 were proved through PW9 who succeeded CW12 in investigation. Relying on the testimonies given by PWs 5 and 6 and Ext.P4 Mahazar as well as Ext.P5 ownership concerning building No.PP.10/398, it was contended that these materials would adequately connect the 2[nd] accused with occupancy of the building. 13. After hearing both sides, I find my way hard to accept the case of the 2[nd] appellant that he has no connection with the building bearing No.PP 10/398 situated in 8[th] Acre, 60[th] Mile Panchayat Road in the Crl.Appeal.111/2008 10 coffee plantation close to the road. Ext.P4 Mahazar prepared by the detecting officer and proved through Ext.P9, discloses that there was a rental arrangement made as between 2[nd] accused and PW4 though the rent deed was not produced in court. PW4 said that he let out the building to the 2[nd] accused on a monthly rent of 500/-. It appears that in fact the building was₹ assessed in the name of PW5, the brother of PW4 as is proved by Ext.P5 certificate issued by PW7 Secretary of Pallivasal Grama Panchayat. PW5 came and said that though the building was in his name, the property belonged to his younger brother, PW4. After having gone through the evidence let in by prosecution, I have reason to agree with the court below that on the date of occurrence, building from where the alleged liquor was seized was in occupancy of 2[nd] appellant. Therefore, if there is evidence to establish that the contraband liquor was seized from the building proved to be in the occupancy of 2[nd] appellant, the conviction issued under Section 64A is incapable of interference. In this context, the evidence let out by prosecution to establish the arrest of 1[st] appellant and also Crl.Appeal.111/2008 11 seizure of MO1 from his alleged possession is also worthy of consideration as well as of much relevance. 14. We do not have the advantage of the evidence of CW12 who detected the crime since he is reported dead. The only evidence available to prove seizure and arrest are the testimonies of PWs 1 and 10. Their testimonies show that the 1[st] accused was arrested on 26.03.2004 at 6 pm and MO1 containing toddy was seized from his possession. In this context, it is significant to note that arrest records were admittedly prepared by the detecting officer. Irrespective of the question whether in strict sense of law preparation of search memo was necessary or not in the facts of the present case, the conduct of the patrol party conducting search of the premises without previous preparation of search memo is a matter to be taken serious notice of. 15. Even assuming that there was seizure of contraband liquor from the place of occurrence also, the material question for consideration is whether the alleged contraband was proved to be toddy as claimed by the prosecution. It is true that Ext.P10 chemical Crl.Appeal.111/2008 12 report has proved that the samples forwarded to chemical laboratory was nothing but toddy. This conclusion may be factually correct also. But the larger question is whether the alleged samples taken from MO1 Can were kept in a tamper free condition and whether necessary safeguards were taken to ensure that the samples were collected from MO1 Can itself. Appellants do not admit that liquor seized from first accused was kept in MO1. It is in this context, the contention of the learned counsel for the appellant that seals were not affixed on sample bottles becomes relevant. No evidence was brought forth to prove that the samples that reached the laboratory were those collected from MO1. 16. Looking at Ext.P1 Mahazar, it is transparently clear that the sample bottles were not sealed by the detecting officer; even though there is sufficient mention of seal in the documents subsequently prepared. Ext.P8 property list mentioned that the sample bottles were sealed. Ext.P9 forwarding note also contains impression of the seal used to seal the sample bottles. But it is worth noticing that Crl.Appeal.111/2008 13 Exts.P8 and P9 reached the court only on 02.04.2004 after an intervening delay of seven days. This delay stands unexplained by the prosecution. In my opinion, on going through these materials, there is nothing to ensure that the sample bottles containing seals reached the chemical laboratory in tamper free condition, since there is nothing in Ext.P1 to disclose that sample bottles were sealed in accordance with law. The mere mention of affixture of seal on the sample bottles in Exts.P8, P9 and subsequent documents is not sufficient to confirm the reliability of prosecution case. Ext.P1 being the foremost document prepared first in a point of time simultaneously with the alleged seizure of liquor, it should clearly have recited that the seals were affixed on the sample bottles. In the absence of mention of such a material fact in Ext.P1 seizure Mahazar, the necessary inference could only be to the effect that the prosecution failed to establish that the sample bottles were produced before the Court in a tamper free condition. This has materially affected the reliability of prosecution case and in my opinion the Crl.Appeal.111/2008 14 appellants are entitled to get at least benefit of reasonable doubt. 17. Since prosecution has failed to prove that MO1 contained contraband liquor as contended, the 1[st] appellant cannot be fastened with any criminal liability under Section 55(a) of the Act. In the event of the charge of seizure failing, the benefit of doubt will ensure in favour of 2[nd] accused also notwithstanding the fact that he was proved to be the occupier of the building. The Court below failed to appreciate these material aspects and it simply assumed without evidence that sample bottles were sealed in accordance with law and they were forwarded to chemical laboratory for examination in tamper proof state. Therefore, impugned order of conviction and sentence require to be interfered with and appellants to be found not guilty of offences punishable under Sections 55(a) and 64A of the Act. 18. In the result, appeal succeeds and order of conviction and sentence are set aside and they are acquitted of offences punishable under Sections 55(a) and 64A of the Abkari Act. They are set at liberty Crl.Appeal.111/2008 15 forthwith and the bail bond executed by them will stand cancelled. **Sd/-** **T.V.ANILKUMAR** DG **JUDGE**