Unnikrishnan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 31ST DAY OF JULY 2014/9TH SRAVANA, 1936 CRL.A.No. 46 of 2006 (B) ------------------------- AGAINST THE JUDGMENT IN SC 391/2005 of ADDITIONAL SESSISONS COURT (ADHOC) FAST TRACK COURT NO. 1, THRISSUR DATED 29-11-2005 CP 20/2005 of JUDICIAL FIRST CLASS MAGISGTRATE COURT,IRINJALAKUDA ## APPELLANT/ACCUSED:: UNNIKRISHNAN, S/O. CHATHAN, PULLAN VEETTIL HOUSE, KUNNATHARA DESOM, MURIYAD. BY ADV. SRI.C.HARIKUMAR ## RESPONDENT/COMPLAINANT:: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF, KERALA ERNAKULAM. R1 BY PUBLIC PROSECUTOR SRI. C.K. JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 46 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 31[st] day of July, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-III, Thrissur, for the offence under Section 58 of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1 lakh and, in default of payment of fine, to undergo simple imprisonment for three months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. CRL.A. 46/2006 2 3. The prosecution case is briefly stated as follows : PW2, the Excise Preventive Officer, Excise Range Office, Irinjalakkuda, and his party were on patrol at Muriyad in Muriyad Village, at about 6.00 p.m. on 19-07-2003. While so, the appellant was seen coming from the opposite side carrying a five litre black jerrycan in his right hand. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by the excise party. On examining the jerrycan, it was found that it contained full of illicit arrack. Since the appellant had committed an offence under the Abkari Act, PW2 arrested him then and there preparing an Arrest Memo. He had drawn 200 ml. of arrack in a 375 ml. bottle as sample from the bulk contained in the jerrycan. Both the sample and the jerrycan containing arrack were sealed and seized them by PW2 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW2 reached the Excise Range Office, Irinjalakkuda, with the CRL.A. 46/2006 3 appellant, contraband and the records and entrusted them to PW4, the Excise Inspector. PW4 had registered Crime No.41 of 2003 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report thus prepared by PW4. He had produced the appellant and the properties before the court on the next day. He had also produced the Forwarding Note before the Court for subjecting the sample of arrack to chemical analysis. He had gone to the place of occurrence and prepared Ext.P4 Scene Mahazar. Ext.P5 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. PW4 had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court, Irinjalakkuda. 4. The learned Magistrate committed the case to the Court of Session, Thrissur, and, from there, it was made CRL.A. 46/2006 4 over to the Additional Sessions Court (Adhoc)-III, Thrissur. The court below framed a charge against the appellant alleging the offence under Section 58 of the Abkari Act. He had pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P5 and MO.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. PW2 is the Detecting Officer. PW3, an Excise Preventive Officer, accompanied PW2 at the time of detecting the CRL.A. 46/2006 5 offence. PWs.2 and 3, by and large, supported the prosecution version of occurrence. But, both these witnesses had not specifically identified the appellant in court. No endorsement had been made by the court below that they had identified the accused in the deposition of these witnesses. PW4, the Investigating Officer, also had not specifically identified the appellant in court. CWs.3 and 4 were cited by the prosecution as occurrence witnesses. CW4 was examined as PW1. He did not support the prosecution case. CW3 was not examined by the prosecution. Therefore, one of the independent occurrence witnesses cited by the prosecution was not examined and the other witness cited did not support the prosecution case. Now the only evidence in support of the prosecution version of occurrence is the evidence given by PWs.2 and 3. Whether relying on the evidence given by PWs.2 and 3, a conviction can safely be entered against the appellant is the CRL.A. 46/2006 6 question to be considered and answered. 6. It is the case of the prosecution that the appellant was found in possession of 5 litres of illicit arrack in a 5 litre jerrycan on 19-7-2003. PW2 had drawn a sample of 200 ml. of arrack in a 375 ml. bottle from the bulk contained in the jerrycan. Both the sample bottle and the jerrycan containing arrack were sealed by PW1. PW4 had produced those contraband items before the court on the next day along with a List of Property. The List of Property so produced along with the contraband items was not marked. The List of Property is available among the records of the case. It can be seen from this document that the properties were produced before the court on 20-7-2003. But, as could be seen from the endorsement on the reverse side of the List of Property, the properties thus produced by PW4 were verified and taken into the custody of the court giving a number only on 1-8-2003. Moreover, another order CRL.A. 46/2006 7 issued by the learned Magistrate also appears on the reverse side of the List of Property. This is to the effect that, except the sample of the contraband, the bulk of the contraband produced as item No.1 in the List of Property was directed to be entrusted to the Excise Inspector, Excise Range Office, Irinjalakuda, for safe custody. The Excise Inspector so referred to in this order is none other than PW4. The prosecution does not have a case that the bulk of the contraband so directed to be kept under safe custody was not taken into custody by PW4. So, one question arises here. Where that bulk of the contraband was kept after it was so returned from the court? None of the official witnesses including PW4 examined in this case did not give any explanation on that matter. 7. Another aspect also has to be considered along with this. The property described as item No.2 in the List of Property is 200 ml.of arrack drawn in a 375 ml. bottle as CRL.A. 46/2006 8 sample. It was kept in the court itself from 20-7-2003 to 1-8-2003 when both the items were verified and taken into the custody of the court giving a number. Where the contraband including the sample were kept in the court from 20-7-2003 to 1-8-2003? Was it under the safe custody of anybody else? By the order entrusting the bulk of the contraband to PW4 indicates that sufficient space was not available in the court for keeping that contraband safely. Who was the custodian of these contraband items in the court? Neither the property clerk nor any other official who was in charge of keeping the contraband items in court was examined in this case. Therefore, it cannot be found that the contraband items including the sample were safely kept under the custody of some responsible person in the court. Moreover, there is no answer to the question as to under whose custody the bulk of the contraband was remaining after it was returned to PW4. CRL.A. 46/2006 9 ## 8. In **Narayani v. Excise Inspector(2002(3)KLT** ## **725),** a learned Judge of this Court observed as follows: “...... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out......” Therefore, in that case, the accused was found to be entitled to the benefit of doubt. In the case on hand also, for the reasons already stated, such a benefit is to be extended to the appellant. 9. This Court in **Sasidharan v. State of Kerala [2007 (1)KLT 720]** has held that when the sample changed hands before reaching the Chemical Examiner the CRL.A. 46/2006 10 Prosecution had to necessarily examine the various persons who were in custody of the sample to prove that while in their custody the seal on the sample had not been tampered with. Here, as already found, nobody from the court was examined by the prosecution. In **Sasidharan's case (supra)** also held that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from the accused had reached the hands of the Chemical Examiner in a fool proof condition. In the absence of any proof regarding the safe custody of the sample or bulk in the court, there is no assurance that the sample taken from the contraband liquor seized from the appellant had, in fact, reached the hands of the Chemical Examiner. These facts throw shadow of doubt regarding the prosecution case. 10. The occurrence in this case had allegedly taken place on 19-7-2003. But, the investigation conducted in CRL.A. 46/2006 11 this case was a delayed one. Ext.P4 Scene Mahazar was prepared only on 6-12-2004 i.e., nearly 1½ years after the occurrence. Even though Ext.P4 was prepared in the presence of witnesses, none of them was examined for proving the same. It can be seen from the records of the case that PWs.2 and 3 were questioned by PW4 only on 7-12-2004 and 6-12-2004 respectively. The prosecution has not offered any explanation for the delay so occurred in conducting the investigation of the case. 11. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows: “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1) Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the CRL.A. 46/2006 12 Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of the Code of Criminal Procedure, 1973(Central Act 2 of 1974).” Section 50 of the Abkari Act shows that investigation into the offence shall be completed without delay. As soon as the investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection (2) of Section 173 of Cr.P.C to the concerned Magistrate. This mandate of the statute was ignored by the investigating agency in this case. What was the reason? No explanation was forthcoming from any of the official witnesses examined in this case. 12. For the foregoing reasons and discussions, entering a conviction against the appellant for a serious offence under Section 58 of the Abkari Act purely based on the CRL.A. 46/2006 13 testimony of PWs.2 and 3 will be unsafe. The appellant, at least, is entitled to the benefit of doubt. Therefore, the conviction and sentence passed against him are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him. 13. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 58 of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. **Sd/BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. TO JUDGE CRL.A. 46/2006 14