Sreethakumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 7TH DAY OF NOVEMBER 2012/16TH KARTHIKA 1934 CRL.A.No. 194 of 2007 (D) ------------------------SC.865/2001 of ADDL.S.C.FOR THE TRIAL OF ABKARI ACT CASES,NEYYATTINKARA APPELLANT/ACCUSED: -------------------- SREETHAKUMAR,S/O.SREEDHARAN, PANAPPAZHYNJY PUTHEN VEEDU, PAYATTU VILLA, KOTTUKAL VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADVS.SRI.G.JANARDHANA KURUP (SR.) SRI.JOHN K.GEORGE SRI.K.S.ARUN KUMAR SRI.E.C.BINEESH SRI.N.K.SHYJU ## RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.A.No.194 of 2007** ## **---------------------------------------------Dated this the 07[th] day of November, 2012** ## **JUDGMENT** Challenging the judgment dated 24/01/2007 in S.C.No.865 of 2001 of the court of the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara, the sole accused therein preferred this appeal against his conviction and sentence for the offence under Section 58 of the Abkari Act. 2. The prosecution case is that at about 3.10 a.m., while the police party was on patrol duty, which started at 11 p.m. on 08/12/1999, found the accused transporting 192 bottles of kingfisher premium larger beer in 16 baseboard boxes in an ambassador car bearing registration No.KRT 9826 at Bypass road near Thiruvallom Junction at Thiruvallom Desom, Thiruvallom Village and thereby the accused has committed the offence punishable under Section 58 of the Abkari Act. Crl.A.No.194/2007 : 2 : On the basis of the above allegation Crime No.121 of 1999 was registered in Thiruvallom Police Station for the said offence and on completing the investigation a report was filed in the Judicial First Class Magistrate Court-II, Neyyattinkara wherein C.P.No.410 of 2000 was instituted and the learned Magistrate by its order in the above proceedings subsequently committed the case to the Sessions Court where S.C.No.865 of 2001 was instituted and thereafter made over the same to the present trial court for disposal. 3. When the accused appeared, after hearing the prosecution as well as the defence, the learned Judge has framed a formal charge against the petitioner for the offence punishable under Section 58 of the Abkari Act which, when explained and read over to the accused, he denied the same and pleaded not guilty. Consequently trial was proceeded further, during which PWs.1 to 7 were examined from the side of the prosecution and Exts.P1 to P7 documents were produced. From the side of the defence, though no document was produced, DW.1 Crl.A.No.194/2007 : 3 : was examined. MO.1 series of beer bottles, 192 in numbers, were identified as material object. The trial court finally found that the accused was seen with unauthorised possession of 192 bottles each containing 650 ml. of Kingfisher Premium Larger Beer and thereby he committed the offence punishable under Section 58 of the Abkari Act and accordingly he is found guilty and thus convicted thereunder. On such conviction, the accused/ appellant is sentenced to undergo rigorous imprisonment for a period of 4 years and to pay a fine of `1,00,000/- in default, he is directed to undergo rigorous imprisonment for a period of six months. It is the above finding, order of conviction and sentence that are challenged in this appeal. 4. I have heard Sri. John K. George, learned counsel for the appellant and Smt.S.Hyma, the learned Public Prosecutor. 5. Out of the seven prosecution witnesses PWs.1 and 2 are independent witnesses who are attesters to Ext.P1 seizure mahazar. PWs.3 and 4 are the police Crl.A.No.194/2007 : 4 : officials involved in the detection of the crime. PW.5 is a witness cited and examined to prove the ownership of the car. PW.6 is the official who conducted the investigation and finally laid the charge. PW.7 is the thondi clerk attached to the Judicial First Class Magistrate Court-II, Neyyattinkara through whom the extract of the thondi register of that court marked as Ext.P7. 6. Though PWs.1 and 2 were cited and examined as independent witnesses to prove the seizure, both of them turned hostile and the prosecution has got marked Ext.P1 through PW.2, since he admitted his signature in Ext.P1 mahazar. 7. PW.3 is the then Head Constable attached to Thiruvallom Police Station, who accompanied PW.2 the then S.I. of Police who detected the crime. When PW.3 was examined, he had deposed in terms of the prosecution allegation and MO.1 series is marked through PW.3. The deposition of PW.3 will be considered later. Crl.A.No.194/2007 : 5 : 8. PW.4 is the then S.I. of Police attached to Thiruvallom Police Station who detected the crime and when he was examined, he had deposed in terms of the prosecution allegation. According to PW.4, himself and party including PW.3 were on patrol duty with effect from 11 p.m. on 08/12/1999 and while they were examining vehicles at the bypass road near Thiruvallom Junction at about 3.30 a.m., he found a white ambassador car bearing registration No.KRT 9826, which was directed to stop and when questioned the driver, he said that the vehicle contained beer bottles which were being transported to Kollam Tourist Centre for sale. According to PW.4, on further examination of the vehicle he had detected 16 boxes each having 12 beer bottles of 650 ml. According to PW.4, the accused was arrested then and there and the contraband articles with the car were seized as the accused failed to show any authority for transporting such a huge quantity of beer. According to PW.4, after the seizure and arrest of the accused, they proceeded to the Station whereupon Ext.P2 FIR was Crl.A.No.194/2007 : 6 : registered. He had also deposed that he had produced the accused in the court with Ext.P3 remand report and contraband articles as per Ext.P5 thondi list. Ext.P5 chemical analysis report was also marked through PW.4. As I indicated earlier, PW.3 who accompanied PW.4 also deposed more or less in the same manner of PW.4. 9. The purpose of prosecution in examining PW.5 was to prove the ownership of the vehicle in question, but PW.5 turned hostile. The investigation was undertaken by PW.6 who questioned the witnesses and finally laid charge. In the present case the bottles covered by Ext.P6 were sent from the court. PW.7 the then thondi clerk attached to the Judicial First Class Magistrate Court-II Neyyattinkara was examined by the prosecution to prove Ext.P7 which is the extract of the thondi register maintained in the said court. As per Ext.P6 chemical analysis report, chemical examiner has reported that alcohol was detected in all the samples and the percentage of ethyl alcohol in each bottles was specifically mentioned in Ext.P6 report. These are the Crl.A.No.194/2007 : 7 : evidences and materials referred to and relied on by the learned Judge in support of his finding and convicting the appellant. 10. The learned counsel for the appellant vehemently submitted that the entire prosecution case is rendered as doubtful because of the discrepancies and infirmities contained in the documents relied on by the prosecution and the contradiction among the evidence of prosecution and according to the learned counsel the prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt. It is the specific submission of the learned counsel that going by the materials and evidence of the prosecution the alleged seizure was effected really on 09/12/1999 but Ext.P2 F.I.R. was registered at about 5.30 a.m. on 08/12/1999 and in all documents the incident is shown to have taken place on 08/12/1999. Therefore, the very existence of Ext.P2 F.I.R. is under shadow of doubt. Another important point raised by the learned counsel for the appellant is that PWs.3 and 4 have no claim that the Crl.A.No.194/2007 : 8 : bottles were separately sealed and labeled but as per Ext.P6 chemical analysis report the bottles were with specific seal. The above observation and report of the chemical analysis are against the evidence of PWs.3 and 4. It is also pointed out by the learned counsel for the appellant that, though according to PWs.3 and 4, 16 boxes each contained 12 bottles of beer were recovered from the possession of the appellant, the prosecution has not produced those 16 boxes and what produced was only 9 boxes which do not contain the seal and label of the prosecution. It is also contented by the learned counsel that PW.3, during his cross-examination, has deposed that he is not able to depose before the court that what produced before the court as the material object, is the one which was recovered from the possession of the appellant. According to the learned counsel PW.4 has also failed to identify the contraband article. Thus, according to the learned counsel, the prosecution has miserably failed to prove its allegation against the appellant. Crl.A.No.194/2007 : 9 : 11. The learned Public Prosecutor for the State submitted that the contraband articles reached the hands of the chemical analyst safely and Ext.P6 chemical analysis report revealed that the seal of the bottles were intact and the said report is fully justifying the prosecution allegation especially when PWs.3 and 4 deposed before the court that the beer bottles seized from the possession of the appellant contained company seals. According to the learned Public Prosecutor, in all other respects the evidence of PWs.3 and 4 remain intact and nothing brought on record to disbelieve them. Therefore, the learned Public Prosecutor submits that no interference is warranted with the findings of the court below and the conviction and sentence imposed on the appellant. 12. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have gone through the judgment of the trial court as well as the evidence and materials on record. Crl.A.No.194/2007 : 10 : 13. In view of the rival contentions advanced and in the light of the evidence and materials on record, only point to be considered is, whether the trial court is justified in its finding and convicting the appellant. The specific allegation of the prosecution against the accused is that, while PWs.3 and 4 on patrol duty with effect from 11 p.m. on 08/12/1999 the accused was found transporting 192 bottles of beer packed in 16 cardboard boxes kept in an ambassador car bearing registration No.KRT9856 and the same were recovered from the possession of the appellant/accused from the Bypass road near Thiruvallom Junction, Thirvuallom desom. The defence has denied the entire prosecution allegation, and the argument advanced by the learned counsel for the appellant is that the prosecution has miserably failed to prove that the samples, which have been subjected to chemical analysis as per the Ext.P6 chemical analysis report, do not represent the contraband articles which were allegedly seized from the possession of the appellant. According to me, the above contentions are Crl.A.No.194/2007 : 11 : not baseless or not without any force and therefore the same requires a close scrutiny with reference to the evidence and materials on record. 14. It is beyond dispute that PWs.3 and 4 have no claim that they have seized 192 bottles beer from the possession of the accused by separately mentioning in Ext.P1 seizure mahazar and each of the beer bottles were separately sealed. For not adopting such a course, the explanation of PWs.3 and 4 are to the effect that these 192 beer bottles were packed in 16 cardboard boxes and the beer bottles contain company seals and therefore, while seizing these bottles, they have affixed labels on each of the cardboard boxes. Ext.P4 chemical analysis report which is a vital document, pressed into service by the prosecution shows that the seals of the bottles were intact and tallied with the samples provided. The said report is diametrically opposed to the claim and evidence of PW.3 and PW.4. The prosecution has not explained under what circumstance the chemical analyst has reported in such a passion. As I indicated earlier, PWs.3 Crl.A.No.194/2007 : 12 : and 4 have no case that the bottles were sealed separately and the same were sealed separately. As the prosecution rely upon Ext.P6 we need not disbelieve Ext.P6. If that be so, the only conclusion that can be arrived is that Ext.P6 is not a report with respect to the contraband article alleged to have been seized from the possession of the accused/appellant. A learned Judge of this Court has held in the decision reported in **Sasidharan** vs. **State of Kerala** [2007(1) KLT 720] that the prosecution has got a duty to see that what reached the hands of the chemical analysis is the sample drawn from the contraband article allegedly seized from the possession of the accused and the same reached in a fool proof condition without any room for tamper. So the evidence of PWs.3 and 4 and the vital document of prosecution namely Ext.P6 contradict each other and same cannot go together. Therefore, the prosecution has miserably failed to prove that Ext.P6 chemical analysis report, is valid and correct document to show that the same contain the analysis report of the contraband article Crl.A.No.194/2007 : 13 : ## seized from the possession of the appellant. ## 15. PW.3 during his cross-examination has stated ## that, “MO.I series ന� കണ�ല അത�ണ� എന� ഇപ��ള പറയ�ന പറ�ന�ല Police ന�ത�യ�ട�ളള അടയ�ളങള MO.I series ല ക�ണ� ന�ല. 16 case കള എന� ന#യ�ത� (Q) അവ�നട വച� ക���കള�മ�യ� seal ന#യ�ത� P.S. ല നക�ണ� വന� (A) അവയ�തല (Q) ഇത�ണത� എന� പറയ���വ�ന�ല. ക�രണഠ 12 ക���കള നക�ള�ന പപപത,ക- case കള�യ�ര�ന� പ�ട�ചട�തത�(A) ഒപര അളവ�ല�ള നപട�കള ആയ�ര�ന� പ�ട�ചത�. വ�വ�ധ size കള�ല�- വ�വ�ധ company കള�പടയ�നപട�കള�ണ� ഇന� MO.I series ആയ� ക�ണ3നത�. _”_ Though during the chief examination of PW.4, he had stated about the details with respect to the seizure of the contraband article, he did not identify the properties produced before the court as the properties which were seized from the possession of the accused/appellant. So, on a close consideration of the prosecution evidence and materials and on a perusal of the Ext.P6 chemical analysis report and deposition of PWs.3 and 4 shows that the material objects produced before the court and the chemical analysis report-Ext.P6 are not with respect to the contraband article alleged to have been seized from Crl.A.No.194/2007 : 14 : the possession of the accused/appellant. 16. It is in this context, the contention of the counsel with respect to Ext.P2 F.I.R. is to be examined. Though PWs.3 and 4 are specific in their deposition, that they went for patrol duty at about 11 p.m. on 08/12/1999, and claimed to have seized the contraband articles from the possession of the petitioner at 3.10 a.m., the F.I.R. is seen registered at about 5.30 a.m. on 08/12/1999 and for that reason alone no evidentiary value can be attached to Ext.P2 F.I.R. If actually any seizure was effected on the early morning of 09/12/1999, the time of the occurrence should have been mentioned as at 3.10 a.m. on 09/12/1999 and consequently the F.I.R. should have been registered as at 5.30 a.m. on 09/12/1999. No explanation is forthcoming from PWs.3 and 4 for registering Ext.P2 F.I.R at 5.30 a.m. on 08/12/1999, if actually the alleged occurrence has taken place on the early morning of 09/12/1999. Coupled with the discrepancies that I have pointed out with respect to the contraband articles and the chemical analysis report and the evidence of PWs.3 Crl.A.No.194/2007 : 15 : and 4 and Ext.P2 F.I.R., I am of the view that the entire prosecution case is not free of doubt and it is not safe to convict the accused, especially when the prosecution failed to remove the shadow of the doubt. But the learned Judge of the trial court has miserably failed to consider the above aspect and therefore I am unable to concur the conviction recorded by the trial court. According to me the accused/appellant is entitled to get the benefit of doubt and extending that benefit he is entitled to get an acquittal. Accordingly, the conviction recorded against the appellant is set aside. In the result, this appeal is allowed setting aside the judgment dated 24/01/2002 in S.C.No.865 of 2001 of the court of the Additional Sessions Judge for the trial of the Abkari Act cases, Neyyattinkara and the accused is acquitted of all the charges leveled against him and the bail bond, if any, executed by him, stand cancelled and he is set at liberty. ## **V.K.MOHANAN, JUDGE** skj