## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE P.UBAID**
**WEDNESDAY, THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939**
**CRL.A.No. 253 of 2011 ( ) --------------------------**
**AGAINST THE JUDGMENT IN SC 221/2009 of ADDL.DISTRICT & SESSIONS COURT (ADHOC)FAST TRACK COURT-II, PATHANAMTHITTA DATED 20-01-2011**
**APPELLANTS/ACCUSED :-**
**--------------------**
**1. SIVAN PILLAI, AGED 53 YEARS, S/O.PERUMAL PILLAI, NALLAVEETIL PUTHEN VEEDU, MALAYALAPPUZHA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.**
**2. SURENDRAN, AGED 42 YEARS, S/O.DAMODARAN, MALAMCHARUVIL VEEDU, MALAYALAPPUZHA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.**
**BY ADVS.SRI.V.SETHUNATH SRI.PRAKASH KESAVAN**
**RESPONDENT/RESPONDENT :-**
**-------------------------**
**THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**R BY SRI.C.M.KAMMAPPU, PUBLIC PROSECUTOR**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **P.UBAID, J.**
============================
## **Crl.Appeal No.253 of 2011**
============================ Dated this the 24[th] day of May, 2017
## **JUDGMENT**
The appellants herein are the two accused in S.C.No.221/2009 of the Court of Session, Pathanamthitta. They faced prosecution before the court below on the allegation that at about 5.00 p.m. on 08.03.2001, they were found transporting a quantity of 20 litres of arrack contained in two black plastic cans, in the Autorickshaw No.KL2 8192. The offence was detected by the Excise Inspector of the Pathanamthitta Excise Range. He arrested the two accused on the spot, and the contraband articles were seized as per mahazar. The accused and the properties were produced at the Excise Range Office, where another Excise Inspector registered the crime and occurrence report. Another Excise Inspector investigated the case, and submitted final report in Court. After complying with the procedural formalities, the learned Judicial First Class Magistrate's Court-II,
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Pathanamthitta committed the case to the Court of Session from where it was made over to the learned Additional Sessions Judge,(Adhoc-II), Pathanamthitta for trial and disposal. Final report was submitted by the Excise Inspector under Sections 8(1) and (2), and also under Section 67B(1) of the Kerala Abkari Act(the Act).
2. The two accused appeared before the trial court, and pleaded not guilty to the charge framed against them under Sections 8(1) and (2) of the Act. The prosecution examined four witnesses, and proved Exts.P1 to P9 documents. MO1 and MO2 plastic cans were also identified during trial. When examined under Section 313 Cr.P.C. the two accused denied the incriminating circumstances, and projected a defence that they have nothing to do with the plastic cans produced and identified in Court. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the two accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for two years each, and to pay a fine of Rs.1,00,000/- (Rupees One lakh only) each by judgment
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dated 20.01.2011. Aggrieved by the judgment of conviction, the accused have come up appeal.
3. When this appeal came up for hearing on the previous occasion, the learned counsel for the appellants submitted that what is identified in Court during trial is a different property, and the appellants have nothing to do with the said property identified during trial. MO1 and MO2 properties identified in Court are two white plastic cans, whereas the detection mahazar shows that the cans seized by the Excise Inspector are black in colour. This Court directed the trial court on 06.04.2017 to examine the material objects personally, and report to Court whether the cans identified in Court are black in Colour, or white in colour. Accordingly, the learned trial Judge submitted a report to Court to the effect that at present, the cans are not available for personal examination because, the two cans are “irretrievably” lost. However, on verification of the entries in the property register, the learned trial Judge reported that the plastic cans received in Court are two black plastic cans. The said report is on the basis of the
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property register entries, and not on verification of the property. Anyway, it is a fact that the properties seized by the Excise Inspector, and produced in Court are two black plastic cans containing some liquor. But the properties identified during trial are in fact two white plastic cans. The report of the learned trial Judge does not show that the colour of the plastic cans was mistakenly shown in the appendix to the judgment. This means that what is identified is really white plastic cans.
4. PW1 is the Excise Inspector who detected the offence, and PW2 is the Preventive Officer who assisted the Excise Inspector in the process of detection. Both the witnesses have given evidence regarding the seizure of two black plastic cans from the possession of the two accused. Their evidence, and also the mahazar shows that two samples each were collected from the two plastic cans. If so, there must be four sample bottles. But, in Court only two sample bottles were produced, and those two bottles were forwarded for analysis. Ofcourse, the report of analysis in the case will show that the liquid contained in the sample
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bottles was identified as arrack. But the question is whether the said sample liquid examined at the laboratory was in fact taken from the liquid carried by any of the accused in this case. Whatever be the evidence proving detection, the Court can convict the accused only if it is proved that the property identified in Court was in fact seized from their possession, and that on examination at the laboratory, the sample taken from the said property was identified as arrack. The judgment shows that what the witnesses identified in Court are two plastic cans of white colour, whereas the materials including the evidence of the material witnesses will show that the plastic cans seized by the Excise Inspector were black in colour. There is yet another infirmity that only two sample bottles were produced in Court whereas the mahazar shows that the Excise Inspector had collected four samples; two each from the two cans. It is not in evidence, from which can those two samples were taken. Thus, I find that there is much confusion or doubt regarding the exact identity of the property involved in this case. No sample was taken from the white cans identified
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during trial. Practically and legally, the effect is that there is absolutely no material to prove that any quantity of arrack was seized from the possession of these two accused.
5. The learned counsel cited the decision of this Court in **Krishnan H. v. State [2015(1) KHC 822]** . The seizure mahazar in this case, or the copy of the forwarding note does not contain the specimen of the seal affixed by the detecting officer on the properties including samples. The decision in Krishnan's case is very much applicable to this case. It is not known what exactly was the seal affixed by the officer on the sample bottles and the other properties. No material contains any description regarding the sample seal. This is also a very serious infirmity, the benefit of which must go to the accused. There is nothing to identify the property alleged to have been seized from the hands of the accused. I find that the conviction is liable to be set aside.
In the result, this appeal is allowed. The appellants are found not guilty of the offence under Section 8(2) of the Kerala Abkari Act. Accordingly, they are acquitted of the
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said offence in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against the appellants in S.C.No.221/2009 of the court below will stand set aside, and the bail bond, if any, executed by them will stand discharged. The amount, if any, deposited by the appellants in the court below as a condition for suspension of sentence will be released.
Sd/- **P.UBAID, JUDGE**
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P.A. TO JUDGE
