Suresh v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939** **CRL.A.No. 1418 of 2004** **AGAINST THE JUDGMENT IN SC 1242/2002 ON THE FILES OF THE COURT OF ADDL.SESSIONS JUDGE ( FAST TRACK -I), THIRUVANANTHAPURAM** **APPELLANT/2ND ACCUSED** **SURESH, S/O NEELAKANDA PILLAI, ANITHA BHAVAN, NEAR NALANCHIRA PANAVILA JUNCTION,, CHENCHERI MURI, ULLOOR VILLAGE.** **BY ADV.SRI.V.N.ACHUTHA KURUP (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.Appeal No.1418 OF 2004** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of February, 2018 ## **JUDGMENT** This appeal is preferred against the judgment of conviction and sentence in S.C.No.1242/2002 on the files of the Court of Additional Sessions Judge ( Fast Track – I), Thiruvananthapuram. The conviction is under Section 55(a) of the Abkari Act. Originally there were three accused. As the first accused was absconding, his case was not committed. The second accused who filed this appeal was tried and convicted. The third accused in the crime was acquitted. 2. The prosecution case in a nut shell is that on 1.9.1998 at about 1.15 p.m., the appellant herein along with the acquitted accused were found transporting 139 litres of illicit Indian Made Foreign Liquor in 16 cardboard boxes in a Tata Sumo car bearing Reg.No.KL 02 F 2142. The vehicle was chased by the police 2 Crl.Appeal No.1418/2004 party in the leadership of PW6. The above said Tata sumo car hit against a tree and stopped. When the appellant herein along with another person alighted from the vehicle, the appellant was allegedly arrested by the Police party. The other person ran away. The crime was registered. Prosecution altogether examined seven witnesses and Exts.P1 to P7 were marked. Ext.D1 was also marked. On the side of the defence, DWs 1 and 2 were examined. After appreciating the evidence, the court below convicted the appellant herein and acquitted the third accused in the crime. 3. When the appeal came up for hearing, the learned counsel for the appellant vehemently argued before this court that here is a case where the prosecution miserably failed to prove the ingredients of the offence. It is the submission of the learned counsel that a perusal of the appendix will show that no property list was marked. There is nothing before the court to show that at that point of time actually the contraband was produced before the court. It is also a fact that MO1 series will show that 640 numbers Crl.Appeal No.1418/2004 3 of bottles alone were marked. As per the prosecution case, originally there were 672 bottles and a report was filed by the ASI, Kazhakkoottam that 32 bottles were broken and lost. The relevancy of this fact is that when the property list is missing and when only a lesser quantity of bottles allegedly seized alone were produced before the court, it can be only said that the prosecution failed to produce the evidence regarding the actual production of the alleged contraband before the court. There is nothing before the court to show that these 640 bottles were actually seized from the spot. Thus on these grounds alone the appellant is entitled for acquittal. 4. The next point argued is regarding non-production of forwarding note. The learned counsel submitted before this court that as per the dictum laid down by this court in **Gopalan v. State of Kerala ( 2016 (2) KLD 469)** , it can be seen that in the absence of forwarding note made available before it, it can be said that prosecution failed to establish the link connecting the accused with Crl.Appeal No.1418/2004 4 the contraband seized and the sample analysed in the laboratory. Going by the dictum laid down therein, it can be seen that in this case also the prosecution failed to establish the link in between the analysis report and the alleged seized contraband. On this ground also the appellant is entitled for acquittal. Apart from the said decision, the learned counsel also highlighted the fact that even such a forwarding note should contain the specimen seal impression. In this regard learned counsel pointed out the decision of this court in **Jose v. State of Kerala ( 2016 (3) KHC 789).** 5. The next point argued by the learned counsel is regarding sampling. Admittedly, the detecting officer did not open any of the bottles from the place of seizure or smelled or tasted the same. Surely, when the seizure is in respect of sealed bottles, it cannot be said that the article contained liquor. The only way in which it can be established by the prosecution is to take sample of the contents in a separate bottle and seal the same and separate 5 Crl.Appeal No.1418/2004 impression of the seal should be given in the forwarding note by which the article was forwarded for analysis. In this regard the learned counsel highlighted the earlier referred decision in **Jose's** case ( supra). More over the learned counsel brought to the notice of this court the decision in **Balakrishnan v. State of Kerala ( 2007 (1) KLD (Crl.) 27), Prakasan and another v. State of Kerala ( 2016 (1) KLD 311), Nalinakshan v. State of Kerala ( 2012 (4) KHC 464).** It is also the submission of the learned counsel that the specific case of the appellant is that he was taken into custody due to mistaken identity. His name happened to be Suresh. He went towards the gathering or the assembly of people, who was watching the seizure of liquor from a Tata sumo car. The name of the licencee of a liquor shop, who was connected with accused No.3 as well as that of accused No.1 happened to be one Suresh and on a mistaken identity, this appellant was taken into custody and was implicated in this case. The specific case of the prosecution is that the vehicle allegedly driven by this appellant Crl.Appeal No.1418/2004 6 dashed against a standing tree. But prosecution got no case that the appellant sustained any injury in that accident. It is a clear indication that he was not involved in the crime. Thus the submission of the learned counsel is that prosecution failed to prove the case beyond reasonable doubt. It is the further submission of the learned counsel that when there is a reasonable doubt regarding the involvement of the appellant in the alleged crime, he is entitled for benefit of doubt. The learned counsel concluded his submission by submitting that when no sampling was done from the spot and when there is no material before the court as to when the alleged recovered article was produced and when there is nothing to rule out tampering and further when there is nothing before the court to show that the sample forwarded for analysis was actually taken from the allegedly seized article and when there is nothing to show how or when sample for analysis was forwarded, it can be only said that prosecution failed to prove the case beyond reasonable doubt. Crl.Appeal No.1418/2004 7 6. The learned Public Prosecutor submitted before this court that here is a case where large scale transportation of Indian made foreign liquor involved and the prosecution got a case that the liquor seized are seconds. There is nothing to interfere with the conviction entered into by the court below. 7. The evidence in this case is as follows : PW1 deposed before the court that he is a coolie by profession and he know the accused and the incident was on 1.9.1998 at about 1 noon. He further deposed that while he was standing in front of MES block office at Kazhakkoottam, he saw the incident. A tata sumo vehicle came from Kazhakkoottam to Attingal and it was followed by a police jeep. A Tata sumo car turned to right and hit against a tree. Thus, the police jeep came and stopped in front of the Tata sumo. A person alighted from the vehicle and ran away. He identified the person who ran away from the car as Accused No.3. He however deposed that the person who was driving the Tata sumo was caught by the police. He identified 8 Crl.Appeal No.1418/2004 the person as second accused. He also deposed that Police found foreign liquor in the car. Police prepared a mahazar for the same and he signed therein and the mahazar is marked as Ext.P1. He further deposed that there was about 672 bottles. He marked the bottles as MO1 series. The bottles were kept in 16 cardboard boxes. During cross examination, he deposed that one person ran away and the other person was arrested, while he alighted from the jeep. A question was put “ ന�ങൾ എത ക�സ�ൽ സ�ക�യ�ണ� ഇത�ന� മമ� ഒര ക�സ�ല� സ�ക�യ�യ�ട�ല. PW2 deposed that he is the brother-in-law of Chandran known as Manichan (his wife's brother). He deposed that he is conducting a foreign liquor shop at Muttathara during 1998-99 period. He further deposed that he is not aware of the Tata Sumo bearing Reg.No. KL 02 F 2142. He further expressed his ignorance regarding the connection of the said vehicle with one Sunildath. He also deposed that Accused No.3 is the brother of his Crl.Appeal No.1418/2004 9 brother-in-law Manichan. He was declared hostile and was cross examined. PW3 is the alleged owner of the Tata Sumo bearing Reg.No. KL 02 F 2142. During examination, he expressed his ignorance regarding the ownership of the said vehicle. PW4 is an abkari business man. He deposed that first accused Sunildath as well as Ambily are his brothers. He further expressed his ignorance regarding the seizure in this case. He was also declared hostile. PW5 is a Police Constable. He deposed that while he was doing duty on 1.9.1998, he saw a Tata Sumo car turning from a patrol bunk and going towards Attingal. The Circle Inspector and the Police party followed the said vehicle and the said vehicle hit against a tree near to block office at Kazhakkoottam. The driver was restrained and was questioned. From the vehicle, 16 cardboard boxes filled by liquor bottles were seized. He identified the same as MO1 series. A mahazar was prepared. He identified Crl.Appeal No.1418/2004 10 Accused No.2 as the person who was driving the said vehicle. A body search was also conducted and articles including the rings and chain were seized. PW6 is the Circle Inspector who detected the crime. He also deposed that he got a secret information regarding the transportation of Indian made foreign liquor. He was checking the vehicles coming from Attingal side. A Tata Sumo came and turned from a petrol bunk nearby. The said vehicle was chased. The Tata sumo hit against a tree and stopped therein. The driver was arrested. The contraband was seized. He deposed that in 16 cardboard boxes 672 bottles of Rum was found. He further deposed that 258 bottles were Western Superior XXX rum containing 180 ml. each, 258 bottles containing 180 ml. each of Old Port XXX Rum and there was 96 bottles of Old Port XXX Rum containing 380 ml. each. He further deposed that a mahazar was prepared and along with arrested accused and mahazar they reached the police station and Crime No.199/98 under Section Crl.Appeal No.1418/2004 11 55(a) of the Abkari Act was registered and the FIR is marked as Ext.P5. He further deposed that he conducted the investigation. The thondi articles and the documents as well as the accused were produced before the court on 2.9.1998. The further investigation as well as the charge was filed by CW12. He further deposed that he can identify the illicit liquor and he identified MO1 as illicit liquor. PW7 deposed that he conducted the further investigation and analysis report was marked as Ext.P7 and he filed the charge in this case. 8. The main point argued by the learned counsel is regarding the failure of the prosecution to show that seized contraband was liquor. The forwarding note, the property list and sampling are relevant to show that the seized article was liquor. In this case Ext.P7 is the analysis report. As per Ext.P7 the analysis report signed by Joint Chemical Examiner, Government of Kerala, which is admissible under Section 293 of Cr.P.C, without examination of the signatory shows that analysed article contained Crl.Appeal No.1418/2004 12 alcohol. As per the said document, it is categorically certified that the following articles are received with the covering letter of Judicial First Class Magistrate No.III, Thiruvananthapuram. “ Three sealed bottles marked 1 to 3 in the laboratory containing the following foreign liquor samples involved in Crime No.199/98 of Kazhakuttom police station for chemical analysis. 1. 180 ml. of clear and brown coloured liquid alleged to be western superior xxx rum 2. 180 ml. of clear and brown coloured liquid alleged to be old Port XXX rum 3. 375 ml. of clear and brown coloured liquid alleged to be Old Port XXX rum.” 9. It can be seen that after analysis of the above referred articles, it is certified that ethyl alcohol detected in all the samples. From the above certification of the chemical examiner, it can be Crl.Appeal No.1418/2004 13 seen that the samples with the description given therein are tallying with the description of article seized in Crime No.199/1998 of Kazhakkuttom police station. The Sessions Court took cognizance of the offence after getting the file as per the committal proceedings No. 74/1999 of the Court of Judicial First Class Magistrate Court III, Thiruvananthapuram. There, it is categorically written that the charge sheet was laid by the Circle Inspector of Police, Kazhakkuttom in Crime No.198/1999. Thus what comes out is that the sessions case arose from Crime No. 198/1999 of Kazhakkuttom police station and the sample analysed by the analyst is also relating to Crime No.198/1999. 10. Now, let us further examine whether the identify of the contraband allegedly seized in Crime No.198/1999 was actually analysed by the analyst. PW6 deposed before the court on oath that he seized 672 bottles of rum and the description of the said rum is given as 258 bottles containing western superior XXX Rum each bottle containing 180 ml. and 258 old port XXX rum each Crl.Appeal No.1418/2004 14 bottle containing 180 ml. And also 96 bottles of Old Port each containing 380 ml. Ext.P1 is the mahazar prepared by PW6 at the time of seizure of the arrack. The description given in the mahazar is shown as follows : “ 1 മതൽ 6 വര" ര#ട��ള�ൽ WESTERN SUPERIOR XXX RUM എന ക&ബൽ കപ�യര+ മദ.ഭ�ഗര1�ട�ച� അ+പ�ന� മ�ള�ൽ എക5സ� �മ7ഷണർ ഒപ�ട പ�നഡ� സ7ൽ ഒട�ചതമ�യ 180 ML വ7ത� അ+ക� രCയ 288 കപ��ൾ 6 ��ർടൺ ര#ട��ള�&�യ� 48 കപ��ൾ വ7ത� അ+ക�വച��ണന. 7 മതൽ 12 വര" ര#ട��ള�ൽ OLD PORT XXX RUM എന ക&ബൽ കപ�യര+ മദ.ഭ�ഗര1�ട�ച� അ+പ�ന� മ�ള�ൽ എക5സ� �മ7ഷണർ ഒപ�ട പ�നഡ� സ7ൽ ഒട�ചതമ�യ 180ML വ7ത� അ+ക� രCയ 288 കപ��ൾ 6 ��ർടൺ ര#ട��ള�&�യ� 48 കപ��ൾ വ7ത� അ+ക� വച� ��ണന. 13 മതൽ 16 വര" ര#ട��ൾ #"�കT�ധ�ചത�ൽ Crl.Appeal No.1418/2004 15 OLD PORT XXX RUM എന ക&ബൽ കപ�യര+ മദ.ഭ�ഗര1�ട�ചത� എക5സ� �മ7ഷണറര+ ഒപ� പ�ന� രCയ�ടള സ7ൽ ഒട�ചതമ�യ 375 ML അ+ക� രCയ 96 കപ��ൾ 4 ര#ട��ള�&�യ� 24 എണ� വ7ത� അടക� വച��ണന.” 11. Thus, a further perusal of the mahazar will show that it was initialed by the Judicial officer on 2.9.1998 itself which gives assurance to act upon the said mahazar regarding the seizure. A mahazar was prepared contemporaneously and the said mahazar was produced before the court immediately. PW6 deposed before the court that he produced the articles and he identified the same as MO1 series. He got a case that he requested the court for analysis of the same. Analysis report shows that along with the sample a request was received from the Magistrate and analysis was conducted and Ext.P7 was issued. The nature of the bottles received by the analyst is also detailed in the said analysis report. There, the same description of bottles seen in the seizure mahazar Crl.Appeal No.1418/2004 16 can be seen. Thus, what comes out is that in this case identity established by the prosecution beyond reasonable doubt. When such an identity is established by the prosecution, then the nonproduction of the property list, forwarding note, letter of request, non-mentioning of the name of the guard who took the article to the analyst etc. will not have any consequence in the case in hand. Thus it can be only said that the prosecution succeeded in proving the case beyond reasonable doubt. There is nothing to interfere with the conviction entered into by the court below. 12. The only question is that of sentence. The prosecution case seems to be that it was Indian made foreign liquor without the seal of the Beverages Corporation. But actually no evidence adduced or collected in this regard. The prosecution got a further case that the vehicle in which the contraband was seen belongs to an abkari licencee. But the prosecution was not successful in proving that aspect. It is also relevant to note that as per the prosecution case, he did not run away from the spot. Thus, what Crl.Appeal No.1418/2004 17 comes out is that when the prosecution has not adduced an iota of evidence to show that the article was “ seconds”, it may not be proper to come to a conclusion that they were actually “seconds” ( Tax evaded contraband). Thus, what comes out is that he was in possession of Indian made foreign liquor in excess of the quantity that can be possessed by a person. Since the quantity involved is large, conviction under Section 55(a) can be maintained. Thus, conviction is upheld. But considering the totality of the case, the sentence imposed on the appellant is reduced and modified as rigorous imprisonment for three months and to pay a fine of Rs.1,00,000/- with default simple imprisonment for two months. With the above modification on the side of the sentence, the appeal is partly allowed. Sd/- **K.P.JYOTHINDRANATH JUDGE** sv.