Surendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942** ## **CRL.A.No.2498 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 400/2004 DATED 14-11-2006 OF ADDITIONAL DISTRICT COURT (ADHOC), ALAPPUZHA** **AGAINST THE ORDER/JUDGMENT IN CP 25/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS , KAYAMKULAM** **APPELLANT/ACCUSED NO.1:** **SURENDRAN, S/O KOCHUKUNJU, SHEEBA BHAVAN, PATHIYOOR MURI, PATHIYOOR VILLAGE.** **BY ADVS. SRI. K.SHAJ SRI.B.BALRAJ SRI.SAJJU.S** **RESPONDENT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY SRI. M.S. BREEZE, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-02-2021, THE COURT ON 05-02-2021 DELIVERED THE FOLLOWING:** Crl.Appeal No.2498/2006 2 ## **JUDGMENT** This is an appeal preferred under Section 374 of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging the legality and correctness of the judgment of the Additional Sessions Judge, Fast Track-1, Alappuzha, in Sessions Case No.400/2004. The precise allegation by the prosecution is that on 17-11-2002 at 3.00 p.m. accused persons were found dealing with arrack on the eastern courtyard of the house by name 'Sheeba Bhavanam' of the 1[st] accused, the appellant herein, in ward No.III of Pathiyoor muri in Pathiyoor panchayath within Kareelakulangara Police Station limits. The crime was detected by the Sub Inspector of police, Kareelakulangara Police Station and party; the appellant was arrested from the spot itself and Crime No.313/2002 of that Police Station was registered alleging offence punishable under Sections 8 (1) and (2) and 55(a)(i) of the Abkari Act. After investigation, the charge sheet was laid before the Judicial First Class Magistrate, Kayamkulam; after completing the procedural formalities the case was committed to the Sessions Court, Alapppuzha from where the matter was made over to the Sessions Court for trial. 2. After hearing counsel on both sides, when the charge alleging offence punishable under Sections 8 (1) and (2) and 55(a)(i) of the Abkari Crl.Appeal No.2498/2006 3 Act was framed, read over and explained, the accused pleaded not guilty. They were on bail. They were defended by a counsel of their choice. 3. The prosecution charge sheet contains seven witnesses. However, only four of them were examined as PWs 1 to 4 and the remaining witnesses were given up. Exts.P1 to P5 were also marked. Material objects were identified and marked as M.Os.1 to 3. On conclusion of prosecution evidence when examined under Section 313 (1)(b) Cr.P.C., they denied all the incriminating circumstances. According to them, they have no connection whatsoever with the material objects. 4. As it was not a fit case for acquittal under Section 232 Cr.P.C., the learned Sessions Judge, called upon them to enter on their evidence in defence. However, no evidence was adduced by them. After hearing counsel on both sides, by the impugned judgment, the learned Sessions Judge, found the appellant, the 1[st] accused guilty of offence punishable under Section 8(1) and (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/(Rupees One Lakh only), in default to undergo simple imprisonment for six months. The 2[nd] accused was acquitted under Section 235 (1) Cr.P.C. The 1[st] accused now challenges his conviction and sentence imposed as afore stated. 5. I heard the learned counsel for the appellant and also the Crl.Appeal No.2498/2006 4 learned Public Prosecutor. According to the learned counsel for the appellant, the conviction and sentence are bad since the prosecution had failed to produce and prove the arrest memo and the forwarding note. The independent witnesses have turned hostile to the prosecution, that there are material contradictions in the testimony of PWs 3 and 4, the official witnesses. According to the counsel in this setting, the conviction cannot sustain. He also relied on the decision reported in **Vijayan @ Pattalam Vijayan and Another v. State of Kerala (2018(2) KHC 814)** . 6. Before considering the arguments of the learned counsel, the prosecution evidence can be set out in a nutshell. PW1 Sasi and PW2 Gopalakrishnan are independent occurrence witnesses who had allegedly attested the Ext. P1 seizure mahazar. Both of them admitted their signatures found on the document but denied having witnessed the seizure, as alleged by the prosecution. They have also stated that they are not aware of the contents of the document. Thus both were declared hostile to the prosecution and were cross examined by the Public Prosecutor. PW3 Pushpa Ghosh is the Police Constable who had accompanied the Sub Inspector while detecting the offence; PW4 Baburaj is the Sub Inspector who detected the offence, arrested the appellant, registered the crime and conducted investigation. Both PWs 3 and 4 supported the prosecution case. According to PWs 3 and 4 they were engaged in the investigation of Crime Crl.Appeal No.2498/2006 5 Nos. 311 and 312 of 2002, when they reached Pathiyoor, the Sub Inspector received information about illegal vending of arrack in the residence of the appellant; thus they parked the jeep at some distance and proceeded to the residence of the appellant by foot through the northern side of the house; when they reached the property of Gopalakrisha Pillai, on the northern side of the house of the appellant, they witnessed the appellant pouring some liquid from a bottle to a tumbler held by a person, standing on the eastern courtyard of his house and the 2[nd] accused collecting money from the person who received the liquid in the tumbler. Seeing the police party which rushed to the spot, the 2[nd] accused and the other person who received the liquid took to their heels. Though the police party chased them, they could not be nabbed; the appellant who was standing on the courtyard was apprehended and the content of the bottle carried by him was tested by smelling and tasting and it was found arrack. It contained 600 ml of arrack. At some distance from the spot another bottle of 750 ml capacity was found concealed under the bushes. That also was found containing arrack. Samples were collected from both the bottles and the contraband was seized under the Ext.P1 mahazar prepared at the spot. The appellant was arrested from the spot. Everything was done in the presence of independent witnesses. With the appellant and the material objects the party reached back the station house and Ext.P2 crime was registered on the same day. Crl.Appeal No.2498/2006 6 The appellant and the material objects were produced before court on the following day. Till that time the material objects were kept in the safe custody of the Sub Inspector. 7. According to PW4, he himself conducted investigation, but the charge sheet was laid before court, after verification of records by CW7. He had produced a forwarding note, along with the material objects, to the court. During the course of investigation, the name and address of the 2[nd] accused was also revealed following which Ext.P4 report was submitted to the court. PW4 also proved the chemical examination report which is marked as Ext.P5 which suggests that the samples contained 26.17 and 27.37 percent by volume of ethyl alcohol. 8. No doubt there are contradictions in the versions of PW3 and PW4. Their testimony as to when the police party had started from the police station that day, who all had chased the 2[nd] accused and the other man, in which direction they had run away seeing the police party etc. do not go together. However, the learned Sessions Judge found their version convincing and on that basis and taking into account the totality of circumstances found the appellant guilty and imposed sentences as mentioned earlier. 9. Even though various contentions were urged before this Court, I am of the view that the argument that there is no forwarding note Crl.Appeal No.2498/2006 7 produced or proved by the prosecution can be borne out from records. Though PW4 Sub Inspector had testified that he had produced the forwarding note along with the Ext.P3 property list on 18-11-2002, such a document is not seen produced or marked for the prosecution. It is true that Ext.P5 report contains a usual observation that 'the seals on the bottles were intact and found tallied with the seal provided', we are incapacitated to verify what exactly was the sample seal provided to the court and the chemical examiner. It is also true that such an argument was neither raised before the trial court nor incorporated among the grounds in the appeal memorandum, still in a criminal proceedings such technical aspects have no place. 10. The importance of a forwarding note in such a setting need not be overemphasized. What is important is whether there is any correlation between the item allegedly seized from the possession of the offender and the chemical examiner's report relied on by the prosecution. Such a correlation could be established only if the forwarding note or requisition made by the investigating agency to the chemical examiner, routed through the committal court is produced and proved. Here, such a vital document is missing. The PW4 has claimed that he had produced such a document before court on 18-11-2002. That means he was aware of the importance of the document. Still it is not forthcoming. That means even though the Crl.Appeal No.2498/2006 8 Ext.P5 contains incriminating report which confirms that the contraband is arrack, possession of which is _ipso facto_ an offence, in the absence of connecting link, the prosecution is not justified in implicating the appellant for allegedly possessing an offensive article. 11. In umpteen number of decisions this Court has held that in the absence of forwarding note, the prosecution is bound to fail. In the circumstances, the above ground alone is sufficient to give benefit of doubt to the appellant. 12. The contention that the non-production of the arrest memo is material, does not assume importance since there are materials to prove that the appellant was arrested on 17-11-2002 and produced before court on 18-11-2002. The contradictions highlighted by the learned counsel need not be gone into in the above back drop. In the light of the above discussion, the appellant is entitled to get benefit of doubt. In reversal of the finding of guilt made by the trial court he is found not guilty and acquitted under Section 386 (b) (i) of Cr.P.C. His bail bond shall stand cancelled and he shall be set at liberty. Fine amount, if any, collected shall be refunded. ## Appeal allowed as above. **Sd/-** **K. HARIPAL JUDGE** SSK/04/02