Sreenivasan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** ## **CRL.A.No. 1569 of 2006** **AGAINST THE JUDGMENT IN SC 249/2005 of ADDITIONAL DISTRICT COURT (ADHOC), PALAKKAD DATED 07-06-2006** ## **APPELLANT/ACCUSED:** **SREENIVASAN,S/O.GANGADHARAN, ACHANAMCODE VEEDU, NENMENI P.O., KOLLENGODE, PALAKKAD.** **BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOLLENGODE, POLICE STATION, KOLLENGODE, PALAKKAD,, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **OTHER PRESENT:** **PP. SMT. MAYA M.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.No. 1569 of 2006** **2** ## JUDGMENT This appeal is directed against the judgment dated 07.06.2006 of the Additional Sessions (Fast Track Court-I), Palakkad (for short 'the court below') in SC No.249/05. The appellant herein is the sole accused involved in the aforesaid case. He was found guilty by the court below for the offence under Section 8(1) punishable under Section 8(2) of the Abkari Act (for short 'the Act') and convicted and sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.1,00,000/and to undergo rigorous imprisonment for six months as default sentence. Aggrieved thereby, the accused has approached this Court in the captioned appeal. 2. Sri.Sajan Varghese, the learned counsel advanced arguments on behalf of the appellant and Smt.Maya M.N., learned Public Prosecutor advanced arguments on behalf of the State. 3. Before adverting to the rival contentions advanced by the respective counsel, it is relevant to have a discussion of the prosecution case in brief : At 8.45 p.m. on 14.10.2002 the appellant was found by the Circle Inspector of Police, Kollengode Police Station transporting **CRL.A.No. 1569 of 2006** **3** 20 litres of arrack in two sacks in a TVS 50 Motorcycle bearing registration No.TN 41-D 9800 at Kuthiramooli situated in Govindapuram-Kollengode road in Kollengode 1 Village of Chittur Taluk. The Official was there on patrol duty alongwith other policemen. The sacks were examined and found to contain two Cans. The two Cans were opened and the liquor contained therein was examined by smelling and tasting and convinced as illicit arrack. Samples have been drawn from the liquor in two bottles. The Cans containing remnant liquor as well as the bottles containing samples were sealed in the presence of independent witnesses available there. The accused was arrested after preparing arrest memo and arrest notice. The arrest notice was served on the brother of the accused. A seizure mahazar was prepared from the spot. The accused alongwith the properties seized and seizure mahazar were produced before the Station House Officer of Kollengode Police Station and Crime No.272/02 was registered. Property list and forwarding note were prepared and the properties alongwith the documents and the accused were produced before the Judicial First Class Magistrate Court, Chittur. The court received those. The accused was remanded to **CRL.A.No. 1569 of 2006** **4** judicial custody. The samples received by the Court were forwarded to the Chemical Examiner's Laboratory for analysis. Certificate of analysis was obtained therefrom. Investigation was conducted by the Station House Officer of Kollengode Police Station. The witnesses were questioned and their statements were recorded. Concluding the investigation, a final report was prepared and laid before the Judicial First Class Magistrate Court, Chittur, which received the same on file. Having found that the offence involved is triable by a Court of Sessions, by committal proceedings No.166/04, the case was committed to the Court of Sessions, Palakkad. The Court of Sessions, Palakkad made over the case to the court below for trial. The accused entered appearance on process being served on him. Preliminary hearing was held and a charge was framed for the offence under Section 8(1) punishable under Section 8(2) of the Act. The charge was read over and explained to the accused, to which he pleaded not guilty. Accordingly, trial was held. 4. The prosecution had examined PWs 1 to 4 and marked Exts.P1 to P7 and MO1 series. On closure of the evidence of the prosecution, the accused was questioned with reference to **CRL.A.No. 1569 of 2006** **5** incriminating circumstances brought in evidence by the prosecution. He denied all the incriminating questions put to him and pleaded false implication. Though called upon to enter on defence, the accused failed to adduce any evidence. 5. The learned Public Prosecutor and the counsel representing the defence were heard. Evidence, both oral as well as documentary adduced by the prosecution have been appreciated and the court below found the accused guilty of the offence punishable under Section 8(2) of the Act and convicted and sentenced him by the impugned judgment. Aggrieved thereby, the accused approached this Court in the captioned appeal. For the sake of convenience the parties to this appeal will be referred to hereinafter as the accused and the prosecution. 6. According to Sri.Sajan Varghese, the learned counsel the trial in the case is vitiated for four reasons. The first reason projected by the learned counsel was that the case was detected by the Circle Inspector of Police, Kollengode, whereas the investigation was conducted by the Station House Officer, Kollengode, inferior in rank to him. The learned counsel has relied on **Johnson v. State of Kerala** [2001 (1) KLT SN 4 (Case **CRL.A.No. 1569 of 2006** **6** No.5)] to rest his contention that the trial is vitiated for the reason. The second argument advanced was with regard to the delay in production of the properties seized from the spot, before the court. According to the learned counsel, the production was delayed by five days, but was not explained by the investigating officer with cogent reasons and therefore the trial is bad. The third argument put forth by the learned counsel was with reference to lack of evidence to establish that the properties have been produced before the Court in a tamper proof condition. According to him, the property list is a contemporaneous document to evidence the manner in which the properties have been produced before the court and the failure of the prosecution to produce and mark the same in evidence would defeat the case of the prosecution. In a case where evidence is totally lacking to establish the condition in which the properties reached the court, the plea that it was produced in a tampered condition cannot be ruled out. Fourthly it is contended by the learned counsel that there was inordinate delay for the samples drawn from the contraband to reach the Chemical Examiner's Laboratory. According to him, more than four months was there for the **CRL.A.No. 1569 of 2006** **7** samples to reach the Chemical Examiner's Laboratory and the reason for it is not explained by the prosecution. It is contended by the learned counsel that the unexplained delay is a material factum to vitiate the trial. The last and final contention to which the attention of this Court was drawn by the learned counsel was that independent evidence was totally lacking to support the prosecution case. According to him, PW1, the detecting officer has deposed in the court that labels wherein signatures of independent witnesses, the accused and the official witnesses had been procured were affixed on the properties seized from the spot. According to PW1, an arrest memo was also prepared from the spot and independent witnesses were made to attest it. But, there was total omission on the part of the prosecution to examine any of those independent witnesses. Moreover, the label claimed by the official witness as affixed on the properties seized from the spot were not available on those at the time of examination. When there is total want of evidence to explain the reason for the disappearance of the label from the properties, it can be discerned that either those were not affixed or that the properties were not kept in safe custody. According to the learned **CRL.A.No. 1569 of 2006** **8** counsel, for want of independent evidence, the prosecution case is totally defeated and every justification is there for this Court to interfere with the impugned judgment. 7. On the contrary, the learned Public Prosecutor has contended that the case of the prosecution is well established from the oral as well as documentary evidence on record. According to her, all the formalities mandated by the Act are also complied with and there is no scope for any interference as submitted by the learned counsel for the accused. 8. Bearing the rival contentions in mind, this Court has ventured to analyse the evidence on record. It is true that the investigation in the case was conducted by the Station House Officer of Kollengode Police Station, an officer subordinate in rank to the detecting officer, who had conducted the investigation. The detection of the case was at about 8.45 p.m. on 13.10.2002 while the C.I. Of Police, Kollengode Police Station was on patrol duty in Kuthiramooli situated by the side of Kollengode-Govindapuram road, Kollengode-I village. While proceeding through the road, he had come across with a Motorcycle bearing registration No.TN-41D-9800 ridden by the accused and it was intercepted. The **CRL.A.No. 1569 of 2006** **9** contraband liquor was seized. Samples were drawn therefrom. The C.I. Of Police was examined before the Court as PW1. Undoubtedly, he being the Circle Inspector of Police, Kollengode Police Station was superior in rank to the Sub Inspector of Police, Kollengode Police Station, who had been instrumental in conducting the investigation in the case on hand. Section 4 of the Abkari Act empowers the Government to issue notification appointing certain categories of officials as Abkari officers to conduct search, seizure and investigation in cases involving Abkari offences. In exercise of the power conferred by Section 4 of the Act, the Government has issued SRO No.321/96 appointing all Police Officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the general executive branch of the Police Department to be Abkari Officers under their respective jurisdiction for the purpose of Sections 31 to 35, 38, 40 to 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers in the aforesaid Sections. Therefore, there cannot be any doubt with respect to the fact that officials of and above the rank of Sub Inspector of Police of the above referred category are empowered **CRL.A.No. 1569 of 2006** **10** to transact as Abkari Officer. In the case on hand, it is true that PW1 is the Circle Inspector of Police, Kollengode Police Station. He being an officer superior in rank to Sub Inspector of Police is undoubtedly an Abkari Officer empowered under the Act as per notification referred supra. It was PW1 who had detected the offence and conducted the search and seizure. It is relevant to notice from the oral evidence of PW1 that after the detection, search, seizure and sampling, the properties have been produced by him to the Station House Officer, Kollengode Police Station and handed over to him. The Station House Officer referred to above was examined as PW3. It is discerned from the oral evidence of PW1 that PW3 was directed to conduct the investigation. Therefore, apart from the authorisation by Section 4 of the Act, PW3 had also gained authority to investigate, from PW1, his superior officer. Moreover, unlike in other cases, the investigating officer in an abkari offence has only limited role to play after the seizure of the properties. Therefore, investigation held in the case on hand is not liable to be thrown out as vitiated. 9. Indisputably inordinate delay was occurred for the properties to reach the Judicial First Class Magistrate Court, **CRL.A.No. 1569 of 2006** **11** Chittur. The seizure was on 13.10.2002. PW3 has also spoken about production of the seized properties before the Station House Officer, Kollengode on the day itself. According to PW1, the properties have been produced before the Court only on 17.10.2002. Therefore, it is evidenced that the properties were produced before the Court on the 5[th] day from the date of seizure. Neither PW1 nor PW3 has stated any reason for the delayed production of the properties before the court. PW1 has stated that the properties after entrustment with him by PW3, were kept in his safe custody. The version of PW3 on safe custody of the properties was not controverted by the accused. Though, property list was claimed as prepared by PW3 from his office, it was not produced and marked in evidence. Therefore, the condition in which those were received by the court is not known. The Thondi Clerk of the court who received the properties was also not examined. Apart from the oral evidence of PW3, other evidence is not forthcoming to establish that the properties reached the court on 17.10.2002. On a glance at Ext.P5, the certificate of chemical analysis, it is relevant to notice that the sample drawn from the liquor in dispute was produced before the **CRL.A.No. 1569 of 2006** **12** Chemical Examiner's Laboratory only on 27.02.2003, delayed by more than four months. The Thondi Clerk is the person, who will in normal circumstances, receive the properties in court on its production by the investigating officer. He will also be responsible for forwarding the samples for analysis to the Chemical Examiner's Laboratory. The Thondi Clerk as stated earlier was not made a witness and examined by the prosecution. Such being the circumstances, the delay occurred cannot be viewed lightly and failure of the officials to explain the same by cogent reason undoubtedly has a material impact on the reliability of the prosecution case. It is true that the forwarding note is produced and marked in evidence as Ext.P4. Neither PW1 nor PW3 has spoken about affixture of personal seal of any of them on the properties either from the spot of seizure or from the office. Forwarding note is marked in evidence, but the space provided therein for affixture of sample seal is kept blank. A seal is found impressed in the forwarding note, which was identified as the seal of PW3 in his capacity as the Station House Officer of Kollengode Police Station. It cannot be stated to be a personal seal impression of the said official. There is total want of evidence to **CRL.A.No. 1569 of 2006** **13** establish the time at which such a seal was affixed on the properties. In the backdrop, the report of the Chemical Examiner that the seal on the packets were in tact and found tallied with the sample seal impression is liable to be viewed with suspicion. Therefore what was the sample seal impression taken for verification and identification purpose by the Chemical Examiner is not known. 10. As rightly put forth by the learned counsel there is total want of independent evidence in the case on hand. PW1, the Circle Inspector of Police, by whom the detection and seizure were made, during the course of examination, has deposed that Ext.P2 arrest memo was prepared and got attested by an independent witness and a label wherein signatures of independent witnesses have been procured was affixed on the properties seized. But, any of the so called independent witnesses was not examined before the Court. The attestation of Ext.P1 seizure mahazar was not proved. Eventhough labels containing signature of independent witnesses were claimed as affixed on the properties, those were not found on the properties during trial. Therefore, it is difficult to rely on the version of PW1 **CRL.A.No. 1569 of 2006** **14** on those aspects. When viewed in the backdrop, the prosecution case is liable to be defeated. 11. For the forgoing reasons, the trial held in the case on hand is vitiated and the judgment under challenge is liable to be set aside. In the result, the appeal stands allowed. The judgment under challenge is set aside. The bail bond of the accused is cancelled and he is set at liberty forthwith. ## **Sd/-** **MARY JOSEPH** **JUDGE** ttb