Thankappan S/o Govindan Nadar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **CRL.A.No.1300 OF 2006** **AGAINST THE JUDGMENT IN SC 810/2001 DATED 02-06-2006 OF ADDITIONAL SESSIONS COURT FOR TRIAL OF ABKARI ACT CASES,NEYYATTINKARA** **CP 380/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA** ## **APPELLANT/ACCUSED:** **THANKAPPAN S/O.GOVINDAN NADAR, SANTHOSH BHAVAN, PERUMKADAVILA VILLAGE,, NEYYATTINKARA TALUK.** **BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA** **REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.MAYA M.N., PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2020, THE COURT ON 01-10-2020 DELIVERED THE FOLLOWING:** Crl.A.1300/06 :2: ## **JUDGMENT** Appellant is the convict in S.C.No.810/2001 of the Additional Sessions Court for the trial of Abkari Act cases, Neyyattinkara. By the judgment dated 02.06.2006 he stands convicted of offence punishable under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh, in default to undergo rigorous imprisonment for six months. The charge sheet was laid by the Excise Inspector, Amaravila Range in Crime No.9/2000 of that Range. The precise allegation against the appellant was that on 18.01.2000 at 9 p.m., while the Excise Inspector of Amaravila and party were on usual patrol duty near Anakkunnu R.C.Church in Nadoorkolla desom in Kollayil village on the Amaravila-Parassala road, the appellant was found moving carrying arrack in a 10 ltr jerrycan. Seeing the excise party he tried to move away; he was intercepted and when the content of the jerrycan was tested by tasting and smelling, it was found filled with arrack. On that basis, in the presence of independent witnesses, the contraband was seized, Crl.A.1300/06 :3: the appellant was arrested and removed to the Excise range office and the crime was registered. On completion of investigation the charge sheet was laid before the Judicial First Class Magistrate Court-II, Neyyattinkara where the case was taken on file as C.P.No.380/2000. After completing the procedural formalities, the case was committed to the Sessions Court, Thiruvananthapuram, from where it was made over to the trial court. The appellant was arrested and produced before court on 19.01.2000 and was in judicial custody. Later he was released on bail. 2. He was defended by a counsel of his choice. After hearing counsel on both sides, when the charge was framed, read over and explained, he pleaded not guilty. Seven witnesses were examined on the side of the prosecution and Exts.P1 to P7 were marked. On completion of prosecution evidence, when examined under Section 313(1)(b) of the Criminal Procedure Code, he denied all the incriminating materials. As the learned Sessions Judge found it not a fit case for acquitting the appellant under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence. Thereafter one witness was examined as DW1. After hearing counsel on both sides, by the impugned judgment, the learned Sessions Crl.A.1300/06 :4: Judge, repelling the pleading of the appellant, found him guilty, convicted and sentenced as aforestated. That finding is now challenged in this appeal preferred under Section 374(2) Cr.P.C. 3. I heard the learned counsel for the appellant and also the learned Public Prosecutor for the respondent State. 4. Even though numerous contentions have been raised in support of the appeal, at the time of argument, the learned counsel has confined to two aspects; firstly, that the prosecution has not produced the alleged forwarding note basing on which the sample was sent for chemical examination report. According to the learned counsel, it is a material irregularity which is fatal to the prosecution. Secondly, it was argued that the sample was not taken from the spot but records are made available to say that sample was collected in the court of Judicial First Class Magistrate, which is illegal. In support of the contention, the counsel relied on the decision reported in **Rajan v. State of Kerala [2013 (3) KLT 654]** and **Smithesh v. State of Kerala [2019 (2) KLT 974]** . On the other hand, the learned Public Prosecutor tried to support the finding of the learned Sessions Judge. Crl.A.1300/06 :5: 5. Evidently, the incident had happened on 18.01.2000 at 9 p.m. on the Amaravila-Parassala public road which is a National Highway in front of the Anakkunnu R.C.Church. Out of the seven witnesses examined on the side of the prosecution, two independent witnesses, PWs 1 and 2, turned hostile to the prosecution. PW1 Haleel, though admitted having attested the seizure mahazar marked as Ext.P1, has turned hostile at the crucial time. Though he admitted his signature on Ext.P1, denied having seen the incident namely detection of the offence, seizure of the contraband from the possession of the appellant and his arrest. PW2 Rajan also turned hostile to the prosecution and even went to the extent of denying his signature shown in Ext.P1. PW3 Gopi is the Excise Inspector who detected the crime, prepared the Ext.P1 seizure mahazar, arrested the appellant and produced him along with the contraband before the Excise Range Officer, Amaravila. Himself and PW4 Varghese, who was in the team of excise party, gave a consistent version which support the allegation of the prosecution. Even though both of them were subjected to rigorous cross-examination, their testimony stand unshaken. Both of them denied that a false case was fabricated against the appellant at the instance of one Crl.A.1300/06 :6: Excise Guard, Mohanadas. The attempt of the defence was that the appellant was arrested from elsewhere as instigated by the said Mohanadas. 6. PW5 Sivarajan is the Excise Range Inspector, Amaravila, who registered the Ext.P3 crime on receipt of the Ext.P1 mahazar; along with Ext.P1 the accused and the contrabands were taken to him. He prepared the Ext.P4 thondi list and produced the accused and material objects before the court on 19.01.2000 along with Ext.P5 remand report. He also proved the Ext.P6 chemical examination report which suggests that the sample contained 21.03% of ethyl alcohol. PW6 N.Subramanian is the Excise Inspector who conducted investigation and laid the charge sheet before court. PW7 Prabhakaran is the Upper Division Clerk of the Judicial First Class Magistrate Court-II, Neyyattinkara, who was examined to prove the receipt of the thondi articles on 19.01.2000. He proved the Ext.P7 certificate. 7. As mentioned earlier, the appellant wanted to convince the court that he was arrested from elsewhere at the instance of one Mohanadas. But, when examined under Section 313 Cr.P.C., he said that the Excise Guard Mohanadas was on inimical terms with him and that the case was Crl.A.1300/06 :7: fabricated at his instance. The mission of DW1 was to say that the appellant was arrested by the excise party at about 9 p.m. from a flour mill at Marayamuttom. According to him, at that time a relative of the appellant was in the excise jeep and the crime was registered falsely at his instance. 8. As stated supra, oral testimony of PWs 3 and 4 Excise officials clearly support the allegation against the appellant. The appellant has no case that these witnesses, who are Excise Inspector and Preventive Officer respectively had any previous acquaintance with him, so that no enmity can be attributed against him. But he wanted to attribute rivalry between Excise Guard Mohanadas, who was in the party, and himself, and on his behalf, such a false case was cooked up. At the same time, when examined under Section 313 Cr.P.C., he mentioned the name of one Mohanadas. These two versions cannot go together. Even otherwise, the allegation that such a serious criminal case was falsely foisted against a layman by responsible officials in the Excise department, on the face of it, does not stand to reason. The testimony of DW1 also can be found as an attempt to create some evidence in support of the version. The learned Sessions Crl.A.1300/06 :8: Judge has disbelieved him, rightly. In other words, from the testimony of PWs 3 and 4 and supporting materials it is quite patent that the appellant was arrested by PW3 and party on being satisfied that he was found illegally possessing and transporting arrack. 9. The prosecution has based upon Ext.P6 Chemical Examination Report to build up the case against the appellant. But, for reasons more than one, it has to be found that it is a very weak pillar and on that weakness the case is bound to fall. Both the contentions raised by the learned counsel for the appellant are strong enough to doubt the veracity of the prosecution case. Firstly, as rightly contended by the learned counsel, no forwarding note is forthcoming for the prosecution. It is supposedly a vital piece of material making a communication by the investigating officer to the Director of chemical laboratory examination, requesting for examining the sample sent for the case. It must bear the seal of the detecting officer, countersigned by the Magistrate who forwards the sample along with the forwarding note. Here, such an important document is wanting. 10. It is the consistent stand of this Court that non-production of Crl.A.1300/06 :9: forwarding note by the prosecution itself can be made a ground for acquitting the accused [see the decisions in _Sadasivan @ Para v. State of Kerala and Another (2020 KHC 478)_ , _Unnikrishnan Nair v. State of Kerala 2020(3) KHC 455_ , etc.) Secondly, both PWs 3 and 4 have confided before court that sample was not collected from the spot itself. It is evident that the material objects were produced before the court on the following day itself, along with the accused. But no sample was collected by the detecting officer. Later, may be on the requisition made by the investigating officer, sample was obtained by an officer of the court and sent it for examination by the chemical examiner. This Court has frowned upon such a procedure, on numerous occasions. As pointed out by the learned counsel, it is none of the business of the court to collect sample on behalf of the investigating officer. The court is not expected to assist the detecting officer or the investigating officer to collect samples. The decisions cited supra are authorities on the point. Even though those are judgments rendered by single Judges, there is no reason to strike a different note. 11. On the above two grounds, it can be concluded that the Crl.A.1300/06 :10: prosecution could not establish that the items allegedly seized from the appellant on 18.01.2000 itself was subjected to examination by the chemical examiner to make an inference that it was arrack that was transported by the appellant. 12. Even though it is not known as to how offence under Section 58 will be attracted in the given facts, in the light of the discussion above, it is not necessary to dilate into such aspects of the matter. In the result, for the two reasons raised by the learned counsel for the appellant which are formidable, the learned Sessions Judge was not right in convicting the appellant. He should have been given the benefit of doubt. Therefore, granting him benefit of doubt, the conviction and sentence are quashed and the appellant is found not guilty and acquitted under Section 386(b)(i) Cr.P.C. His bail bond shall stand cancelled. **Sd/-** **K.HARIPAL JUDGE** okb/28/09/2020 //True copy// P.S. to Judge