T. V. Prathapan and Sukumaran v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 21ST DAY OF JUNE 2012/31ST JYAISHTA 1934 CRL.A.No. 837 of 2005 ( ) ------------------------SC.599/2004 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY APPELLANT(S)/ACCUSED: ----------------------------------- ## 1. T.V.PRATHAPAN, S/O.NARAYANAN, AGED 29 YEARS, THEROTH HOUSE, CHITTADI, RAMANTHALI, KANNUR. ## 2. SUKUMARAN, S/O.RAGHAVAN, AGED 31 YEARS, KOYILERI HOUSE, NEAR VATTASSERI GOPURAM, KANKOL. BY ADV. SRI.M.V.AMARESAN ## RESPONDENT/COMPLAINANT: ----------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT A. LOWSY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- ## **P.S.GOPINATHAN, J.** ## **---------------------------------------Crl.A.NO. 837 OF 2005 ---------------------------------------Dated this the 21[st] day of June, 2012** ## **J U D G M E N T** The appellants are accused 1 and 2 in Sessions Case No.599/2004 on the file of the Additional Sessions Judge (Adhoc-II), Thalassery. The Station House Officer, Payyannur Police Station prosecuted the appellants and another alleging offence under Section 8(2) of the Kerala Abkari Act, with a plea that on 21/1/2003 the then Sub Inspector of Police, who was examined as PW1, got information that illicit arrack was transported in an autorickshaw bearing Registration No. KL/13/F-8187 at Echilamvayal in Vellur amsom. PW1 with party proceeded to the spot and intercepted the autorickshaw. The appellants were found inside the autorickshaw driven by another who was arrayed as the third accused. On inspection, it was found that the autorickshaw was carrying three black jerry cans of ten litres capacity, each containing eight litres of illicit arrack. The contraband was seized. Sample was taken. The appellants and the other Crl.A.NO. 837 OF 2005 2 accused were arrested. Seizure mahazar was prepared. After returning the Police Station, a case was registered. The investigation was entrusted to the Additional Sub Inspector of Police, who was examined as PW3. Appellants and other accused were later released on bail. PW3, after completing the investigation submitted the charge sheet before the Judicial Magistrate of the First Class, Payyannur accusing offence under Section 8(2) of the Kerala Abkari Act. Since the offence alleged is exclusively triable by a Court of Session, after complying with requisite procedures, the case was committed to the Court of Session, Thalassery. From there, it was made over to the Additional Sessions Judge. In to the response process issued, the appellants entered appearance. The third accused was reported absconding. Therefore, the case against the third accused was split up. Appellants and the prosecution were heard. A charge for the above said offence was framed. When read over and explained, the appellants pleaded not guilty. Therefore, they were sent for trial. On the side of the prosecution, Crl.A.NO. 837 OF 2005 3 PWs 1 to 3 were examined. Exhibits P1 to P6 and MO1 series were marked. After closing the evidence for the prosecution, the appellants were questioned under Section 313 of the Code of Criminal Procedure. They took a defence of total denial. were called to enter their Though they upon defence, no defence evidence was let in. The learned Additional Sessions judge, on appraisal of the evidence, arrived at a conclusion of guilty. Consequently, appellants were convicted and sentenced to rigorous imprisonment for two years and a fine of Rs.1,00,000/- with a default sentence of simple imprisonment for six months. Assailing the above conviction and sentence, this appeal is preferred. 2. I have heard Adv. Sri M.V.Amaresan, the learned counsel appearing for the appellants, besides the learned Government Pleader Smt. A. Lowsy. The judgment impugned and the evidence on record were perused. Crl.A.NO. 837 OF 2005 4 3. PW1 would depose that at 8 A.M., on 21/1/2003, he got information that illicit arrack was transported in an autorickshaw bearing Registration No.KL/13/F-8187. He rushed to the spot along with the Police party and the autorickshaw was intercepted. The appellants were sitting inside the autorickshaw driven by the third accused. On examination of the autorickshaw, it was found that there were three jerry cans each of them containing eight litres of illicit arrack. The appellants and the other accused were arrested. The contraband was seized. From the liquid contained in the jerry cans 375ml was taken in three sample bottles which were sealed then and there. Exhibit P1 seizure mahazar was prepared. Returning to the Police Station with the accused and the material objects a case as Crime No.47/2003 was registered for which Exhibit P2 First Information Report was prepared. Exhibit P3 was identified as the arrest memo. MO1 series are the jerry cans containing illicit arrack less the quantity taken as sample. PW2, an independent witness would depose that he had seen the Police Crl.A.NO. 837 OF 2005 5 party seizing arrack from the autorickshaw. He would admit his signature in Exhibit P1 and P3 arrest memo whereby the accused were arrested. 4. PW3 would depose that he took over the investigation of the case. He went to the spot of occurrence and prepared Exhibit P4 scene mahazar. He questioned the witnesses and recorded their statements. The sample bottles were forwarded for Chemical Examination and obtained Exhibit P6 report of the Chemical Examiner wherein it is certified that the samples contained 39.15%, 33.03% and 34.02 % Ethyl Alcohol by volume. Exhibit P5 was identified as the forwarding note. He after completing the investigation laid the charge sheet. 5. On a critical scrutiny of the evidence of PWs 1 and 2, I find little reason to disbelieve their evidence regarding the arrest and seizure. Their evidence is corroborated by Exhibit P1 recovery mahazar on material points. Though PWs 1 and 2 were subjected to searching cross-examination, no Crl.A.NO. 837 OF 2005 6 material was disclosed to disbelieve them. There is no material to show that PW1 was anyway ill motivated to cook up a case against the appellants or PW2, who is an independent witness, was supporting prosecution with any ulterior motive. Therefore, I find that the trial court was correct in believing their testimony. 6. The learned counsel for the appellants would vehemently argue that there is no material evidence on record to come to a conclusion that the samples analysed by the Chemical Examiner are the same seized from the appellants as per Exhibit P1. The property list along with which the material objects were forwarded by the Investigating Officer to the committal court is not produced. Therefore, there is absence of link evidence to connect the appellants with the material objects and the sample; and that there was delay in forwarding the sample to the Chemical Examiner, delay in reaching the sample before the Chemical Examiner and delay in analysing the sample. It was also argued that in Crl.A.NO. 837 OF 2005 7 Exhibit P2 First Information Report, the place of occurrence is reported as 3 ½ KM away from the Police Station. Whereas in Exhibit P3 arrest memo the distance is stated as 6 KM. Therefore, according to the learned counsel, the prosecution evidence is not believable to come to a conclusion regarding the guilt of the appellants. In support of his arguments the learned counsel relied upon decisions reported in State of Rajasthan v. Daulat Ram (AIR 1980 Supreme Court 1314), Dominic v. State of Kerala [1989 (1) KLT 601], Ali v. State of Kerala [2001 (2) KLT 389] and Sasidharan v. State of Kerala [2007 (1) KLT 720]. 7. It is true that the property list along with which the material objects were forwarded to the committal court was not marked in evidence. Going by the evidence of PWs 1 to 3, I find that their evidence regarding the seizure and forwarding of the material objects to the court was not at all challenged. Paragraph 10 of the trial court judgment would show that the same contention was Crl.A.NO. 837 OF 2005 8 argued before the trial court. The trial court had mentioned in the judgment that the property list, along with which material objects were forwarded to the Magistrate, would show that the seized articles were produced before the court on 22/1/2003. That means the material objects were produced before court on the very next day itself. The crossexamination of PW1 would show that after seizure the material objects were in his safe custody. There is no suggestion to PW1 that he had tampered with the material objects or that PW1 had got any axe to grind against the appellants or the third accused so as to falsely foist a case against them. Therefore, there is no proof regarding any malice on the side of the Detecting or Investigating Officer. Despite the vehement argument made by Adv. Sri. M.V.Amaresan, I find little reason to come to a conclusion that the failure of the trial court to mark the property list is any way significant or is a reason to disbelieve the prosecution case. I find no reason to reject the finding of the trial court after verifying the records that the property list was there in the Crl.A.NO. 837 OF 2005 9 records and that as per the property list the articles were produced before the trial court on the next day itself. 8. In the decision in Dominic v. State of Kerala it is evident that there was delay in forwarding the material objects to the court. In the light of what is discussed earlier, in this case, there is no delay in producing the material objects before the court. Therefore, the ruling in Dominic v. State of Kerala has no application. In the decision in Sasidharan v. State of Kerala, no sample was taken by the Investigating Officer and the sample was taken by the court staff. It is in the peculiar factual background, the ruling in Sasidharan v. State of Kerala was delivered. In this case, PW1 had taken the sample from the court itself. Regarding the sampling process and forwarding of the same, there is absolutely no challenge. In the above circumstance, I find that the ruling in Sasidharan v. State of Kerala has also no application to the case on hand. Crl.A.NO. 837 OF 2005 10 9. Going by Exhibit P5 and P6, it is seen that the forwarding note was submitted before the court on 3/2/2003. The sample was forwarded to the Chemical Examiner as Item No.34/2003 dated 23/8/2003 and it was received by the Assistant Chemical Examiner on 24/9/2003. By Exhibit P5 and P6, it is seen that there is some delay in preparing the forwarding note and in forwarding the sample to the Chemical Examiner. But there is no suggestion, either to PW1 or to PW3, that during the intermittent period, either the samples were not in the safe custody of the court or that there was any chance for tampering the samples. So also, no question was put to PW3, who prepared Exhibit P5 Forwarding note and arranged to send the sample for Chemical Examination regarding the delay in forwarding the material objects to the laboratory. In the above circumstance, what is to be presumed is that the delay occurred unintentionally. There was little chance for any mistaken identity of the samples or for any tampering. In the decision in State of Rajasthan v. Daulat Ram, the material object was a Crl.A.NO. 837 OF 2005 11 packet of opium and the evidence on record would show that there was change of hands before reaching the Public Analyst. In the case on hand, as I mentioned earlier, the samples were produced before the court on the next day itself and it is from the court the samples were forwarded. Therefore the ruling in State of Rajasthan v. Daulat Ram has no application to the case on hand. Yet another argument that was advanced is regarding the seal found on the sample bottles. In the decision in Ali v. State of Kerala, it appears that there was change of the colour of the paper with which the material objects were packed and the Chemical Examiner had scrutinised the sample with reference to the specimen impression of the seal of the Court and not with reference to the seal of the detecting officer. Exhibit P5 would show that it contains a specimen impression of the seal. From Exhibit P5, it appears that the specimen impression of the seal is that of the detecting officer. However, there is no challenge before the trial court. There is no change of the paper with which the samples were packed. Crl.A.NO. 837 OF 2005 12 In the above circumstance, the argument now advanced referring to the report in Exhibit P6 regarding the comparison of the specimen impression of the seal is without a contention raised to PW1 when he was in the box and therefore, devoid of merit. On a critical scrutiny of the evidence, I find little reason to come to a conclusion that there was any tampering of the material objects while it was in the custody of the court or while it was forwarded to the Chemical Examiner. The judgment of the court below would show that all the contentions raised the were by appellants meticulously considered and the conclusion arrived by he trial court is in tune with the evidence. It is not at all perverse or contrary to the evidence on record. In the above circumstance, I find no reason to interfere with the finding of the trial court regarding the guilt of the appellants. The conviction under challenge is based on cogent evidence. 10. Having due regard to the quantity of the contraband seized and that the appellants were then Crl.A.NO. 837 OF 2005 13 aged 29 and 31 years respectively and coolies; and that there is no bad antecedent reported, I find that a sentence of rigorous imprisonment for nine months with the minimum fine as imposed by the trial court would meet the ends of justice. In the result, the appeal is allowed in part. While confirming the conviction, the substantial sentence is reduced to rigorous imprisonment for nine months. The minimum fine imposed by the trial court with the default sentence is sustained. The trial court is directed to see the execution of the sentence and report compliance. Sd/- **P.S.GOPINATHAN, JUDGE** /TRUE COPY/ P.A.TO JUDGE DSV/- # Crl.A.NO. 837 OF 2005 14