Sunny s/o John and Joseph s/o Vareed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 9TH DAY OF MARCH 2017/18TH PHALGUNA, 1938** ## **CRL.A.No. 1357 of 2004 ( )** ## **---------------------------** ## **AGAINST THE JUDGMENT IN SC 337/2002 of III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK COURT NO.I, THRISSUR DATED 22-07-2004** ## **APPELLANT(S)/ACCUSED::** **---------------------** **1. SUNNY, S/O. JOHN, PALLIYIL HOUSE, KUTTICHIRA VILLAGE, MARAMKOD DESOM.** **2. JOSEPH, S/O. VAREED,** ## **POTTEKKARAN HOUSE, KUTTICHIRA VILLAGE, MARAMKODU DESOM.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** ## **RESPONDENT(S)/COMPLAINANT::** ## **---------------------------** **STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF** **KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1357 of 2004** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of March, 2017** ## **J U D G M E N T** This appeal is preferred against the judgment and sentence dated 22.7.2004 made in S.C.No.337/2002 on the file on the III Additional Sessions Judge (Adhoc) Fast Track Court No.I, Thrissur. The conviction is under Section 58 of the Abkari Act. The sentence imposed is rigorous imprisonment for one year each and to pay a fine of Rs.1 lakh each with a default rigorous imprisonment for three months each. 2. When the appeal came up for hearing, the learned counsel for the appellants submitted before me that the case of the prosecution is that on 20.7.2000 at about 6.15 p.m. at a forest area in Maramkode desom in Kuttichira village, the appellants herein were found in possession of 17 litres of arrack. It is the submission made by the learned counsel that the appellants are jointly tried. The original prosecution case is that the accused No.1 was seen pouring arrack from a can to another can held by the second Crl.A.No.1357 of 2004 2 accused. Thus, the prosecution case was that the accused No.1 was in possession of a can containing illicit arrack having a capacity of 25 ltrs. whereas the second accused was in possession of a can having a capacity of 10 ltrs. wherein the alleged possession was 7 ltrs. It is the submission of the learned counsel that a common intention was introduced to try both the accused together. It is also the case of the prosecution that they were seen from a distance of about 20 mtrs. and thereafter arrested. 3. The question to be considered is that at the time of arrest or when the accused were arrested whether they were in possession of illicit arrack. If it was seen pouring from one can to other, it can be only considered as possession by both. The crucial aspect to be considered is that at the time of arrest whether the accused was in possession of contraband article. When the allegation of the prosecution is that both the accused were in possession of the liquor, that aspect has to be proved by cogent and reliable evidence. This aspect was dealt by the court below in paragraph No.7 of the judgment wherein point No.1 and 3 Crl.A.No.1357 of 2004 2 were considered. In paragraph No.7, it is stated that both accused were holding jerry cans. The first accused was holding a jerry can having a capacity of 25 ltrs. which contains 10 ltrs of arrack. The second accused was holding a jerry can with 7 ltrs. arrack. This is the fact which invited conviction and sentence. Whether that act was actually proved by the prosecution is the question to be considered in this appeal. It is the submission that as per Ext.P3 mahazar it can be seen that the sampling was done only from the 25 ltrs. capacity can. Surely it is written therein that the Excise official who detected the crime was satisfied that both contained the same liquor. But the satisfaction of the said officer will not be sufficient to warrant a conviction in a sessions trial. If the officer was convinced, that alone will not be sufficient to come to a conclusion by this court that both the cans contained liquor. Now, the next aspect to be considered is that as per the prosecution case itself 180 ml. of liquor was sampled from a can containing 25 ltrs. capacity and the said article was sealed and the crime registered after preparing a seizure mahazar which is Crl.A.No.1357 of 2004 4 marked as Ext.P3. Now, admittedly there are two cans available. The allegation is that of possession. Both the accused are now tried together in a single trial. Whether there will be prejudice caused is a question to be considered by this court. There is only one analysis report in this case. Admittedly, the sample was taken by the detecting officer from a can having capacity of 25 ltrs. Admittedly when there are two cans containing liquor and only from one can the sampling was done and the independent mahazar witnesses allegedly present therein are not supporting the prosecution, the appreciation of the evidence of detecting officer should be with caution. It is also submitted by the learned counsel that in this case the forwarding note is not before the court. It is not clear whether the sample now analysed by the court is the sample collected by the officer or on a request made by the investigating officer to collect and forward liquor from the can available before the court with contraband as alleged by the prosecution. 4. When the forwarding note is missing especially in Crl.A.No.1357 of 2004 5 a case like this, and further when the sample was taken only from one can and the allegation of the prosecution is that the cans are possessed by the appellants/accused separately and for the said possession the prosecution is launched the prosecution, conviction entered into by the court will not be sustainable. The non-marking of the forwarding note is fatal in a case like this. It will go to the root of the case especially in the light of the decision reported in **Krishnan H. v. State of Kerala [2015 1 KHC 822]** . It is also brought to my notice that there was inordinate delay in filing the report i.e. the incident occurred on 20.7.2000 whereas the final report filed only on 17.4.2002. Thus the submission is that there is a delay of more than 1 ½ years in filing the charge and by virtue of Section 50 of the Abkari Act it is fatal as held by this court in Krishnan's case (supra). 5. In this case, the allegation of the prosecution is that A1 was seen pouring arrack in a can held by A2. At the moment arrack reached in the can in position of A2, he will be also committing an offence for possession of illicit Crl.A.No.1357 of 2004 6 arrack. But there should be cogent and reliable evidence to show that he was in possession of the arrack as alleged. In this case, admittedly, no sample was drawn from the can allegedly in possession of A2. When sample was not taken and the can was forwarded to the court, at least the investigating officer should have been requested the court to draw sample from the same and forward for analysis. That was not done in this case. It should be proved that the contraband possessed is liquor, even if the allegation is that it was transferred to the possession of A2 from an article in the possession of A1 i.e. first it is to be proved that the article possessed by A2 is a liquor then only a conviction under Section 58 of the Abkari Act will lie against him. 6. The next aspect is regarding the commission of offence by A1. There is nothing to show that the prosecution requested the court to send the sample for analysis. The chemical analysis report is marked as Ext.P7. It is true that now there is an analysis report before the court. It is stated as follows: “one sealed bottle containing 180 ml. of clear and Crl.A.No.1357 of 2004 7 colourless liquor alleged illicit distilled arrack involving in crime No.14/2000 of Chalakudy Excise Range recovered for chemical analysis”. It is to be seen that the only aspect highlighted in the analysis report is that it is the sample involved in crime No.14/2000. The main point canvassed upon this is that if this was the article drawn and sent by the court on an application as required under law by chemico-legal analysis rules, then it will be pertaining to accused No.2. When there are two separate cans available there should be positive proof regarding which sample was sent to the analyst. That aspect is missing in this case. On the background of this aspect, the dictum laid down by this court in Krishnan's case (supra) becomes relevant especially when there is an inordinate delay of 1½ years in filing the complaint. The delay is not seen explained by the witnesses. Thus, when the forwarding note is not marked and further when there is inordinate delay in a case like this, and when there are two accused and both of them faced single trial for possession of liquor and admittedly when only one sample was drawn from a can possessed Crl.A.No.1357 of 2004 8 from one among them, the non-marking of the copy of the forwarding note becomes fatal especially when there is inordinate delay in filing. Thus, considering the totality of the case, the conviction and sentence entered into by the court below is hereby set aside. The bail bonds stand cancelled. The appeal is allowed. 7. At this juncture, it is submitted that the appellants/accused deposited Rs.15,000/- each before the trial court at the time of granting bail. Since the conviction and sentence set aside, they are entitled for release of the amount on proper application in this regard before the trial court. Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/