Varghese, S/o. Chellayyan Nadar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 23RD DAY OF SEPTEMBER 2014/1ST ASWINA, 1936** ## **CRL.A.No. 2007 of 2003 ( )** **--------------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 1905/2001 of ADDITIONAL SESSIONS COURT (FAST TRACK-I), THIRUVANANTHAPURAM DATED 12-11-2003.** ## **APPELLANT/ACCUSED:** **----------------------------------** **VARGHESE, S/o. CHELLAYYAN NADAR, T.C.35/1786-A, KARIMPIL KATTAKKAL MEKE VEEDU, MYTHRI NAGAR, VALIYAVILA WARD, THIRUMALA VILLAGE.** ## **BY ADV. SRI.G.SUDHEER KARAKKONAM** ## **RESPONDENT/COMPLAINANT:** **-------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SS** K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl. A. No. 2007 of 2003 --------------------------------------------------------------------Dated this the 23[rd] day of September, 2014 ## J U D G M E N T Accused in S.C.No.1905/2001 on the file of the Additional Sessions Judge (Fast Track-I), Thiruvananthapuram, is the appellant herein. 2. The appellant was charge-sheeted by the Sub Inspector of Police, Poojappura police station in Crime No.184/2000 under Section 55(a) of the Abkari Act. 3. The case of the prosecution in nut shell was that, on 12.12.2000 at about 5.00 p.m., the accused was found to be in possession of five bottles of illicit arrack, each containing 750 ml., in a plastic bag for the purpose of sale, in the property situated one meter north from the north western corner of the house by name Karimpinkattakkal Mekkethattu Veedu, House No.T.C. 35/1786-A, Mythri Nagar, in Valiyavila Ward, Thirumala Village, in violation of the Provisions of the Abkari Act and Crl.A. 2007/2003 2 thereby he had committed the offence punishable under Section 55(a) of the Abkari Act. 4. After investigation, final report was filed before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram, and the learned Sessions Judge has committed the case to the Court of Sessions, where it was taken on file as S.C.1905/2001 and thereafter made over to the Additional Sessions Court (Fast Track-I), Thiruvananthapuram, for disposal. 5. When the appellant appeared before the court below, after hearing the Additional Public Prosecutor and the learned counsel appearing for the appellant/accused, the learned Additional Sessions Judge framed charge under Section 55(a) of Abkari Act, against the accused and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P4 and Mos 1 and 2 were marked on the side of the prosecution. After closure of the prosecution evidence, the Crl.A. 2007/2003 3 accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence and he had further stated that, he had not committed any offence and no article was seized from his possession and he has been falsely implicated in the case. He had further stated that, while he was coming after his work at 2.30 p.m., he was taken to the police station and he has been falsely implicated in the case. Further he was a Marxist party worker earlier and later he joined congress party and on account of that political enmity, he has been falsely implicated. Since the evidence in the case did not warrant acquittal under Section 232 of the Code of Criminal Procedure, the learned Additional Sessions Judge directed him to enter upon his defence, but no defence evidence was adduced on his side. After considering the evidence on record, the court below found that, the appellant was guilty under Section 55(a) of Abkari Act and convicted him thereunder and sentenced him to undergo rigorous Crl.A. 2007/2003 4 imprisonment for two years and also to pay a fine of ₹1,00,000/-, in default to undergo rigorous imprisonment for one year more. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below. 6. Heard the learned counsel for the appellant and leaned Public Prosecutor. 7. The learned counsel for the appellant submitted that, independent witnesses examined did not support the case of the prosecution and except the interested testimony of police officials, there is no other evidence adduced on the side of the prosecution to prove the seizure. Further there are contradicting evidences of PWs 1 and 4 regarding this aspect. So it cannot be said that, prosecution has proved the seizure of contraband article from the possession of the accused beyond reasonable doubt. Further the alleged seizure was on 12.12.2000 but it was produced before the court only on 23.12.2000 and there is no explanation forthcoming for the Crl.A. 2007/2003 5 same. Further there was no spot sample taken from the contraband article from the spot and there is no evidence adduced on the side of the prosecution to prove from where the sample was taken and the chemical analysis report relates to the representative sample of the article alleged to have been seized from the possession of the accused. The absence of such evidence, the court below was not justified in convicting the appellant for the offence under Section 55 (a) of the Abkari Act. 8. On the other hand, the learned Public Prosecutor submitted that, the evidence of PW2 will go to show that, the articles were entrusted to the writer of the police station to produce before the court and the delay occurred on his side and the admission of PWs 2 and 4 regarding their signature, it can be safely concluded that, the prosecution has proved the case against the accused beyond reasonable doubt and the court below was perfectly justified in convicting the appellant for the said offence and that finding does not called for any interference. Crl.A. 2007/2003 6 ## 9. The points that arise for consideration are: I. Whether the court below was justified in convicting the appellant for the offence under Section 55(a) of Abkari Act ? II. If so, the sentence imposed is proper and legal? 10. Point No.I. The case of the prosecution as emerged from the prosecution witnesses was that, on 12.12.2000 at 5.00 p.m., while PW4 along with PW1 and others were doing patrol duty, they got information that the accused was selling arrack from an open ground near the house by name Karimpinkattakkal Mekkethattu Veedu, with number T.C.No.35/1786-A, Mythri Nagar, in Valiyavila Ward, and immediately he went to that place and saw the accused standing there with MO2 bag and on seeing the police party, he tried to go away from that place. So he intercepted him and examined MO2 bag and found that it contained five bottles with 750 ml., liquid in each bottle. He examined the contents of the same and satisfied that, it was illicit arrack. He convinced the witnesses PWs 1 to 4 and other police officials with him that it was arrack and thereafter sealed the same and seized the same as per Crl.A. 2007/2003 7 Ext.P1 mahazar in the presence of PW2 and 3 and arrested the accused and came to the police station and registered Ext.P3 first information report as Crime No.184/2000 of Poojappura police station, against the appellant under Section 55(a) of Abkari Act. Thereafter he himself has conducted the investigation. He sent the articles to court. As per his request, the samples were sent for chemical analysis and Ext.P4 chemical analysis report obtained, which shows that, the samples contained 28.85, 54.54, 43.93, 21.46, 36.59% by volume of ethyl alcohol. He completed the investigation and submitted final report against the accused. 11. PW2 not only did not support the case of the prosecution regarding the seizure but also denied his signature in Ext.P1, but he had admitted that, he came to know that the accused was arrested by the police and he knew the accused. PW3 had stated that he did not see the incident but denied having stated in Ext.P2. So it is clear from this that, the witnesses are now trying to help the Crl.A. 2007/2003 8 accused on account of their acquaintance with him and that was the reason why they are not supporting the case of the prosecution. 12. PW4 is the detecting officer/investigating officer. He had categorically stated that, on 12.12.2000 at about 4.00 p.m., he was doing patrol duty along with PW1 and others and when he reached near the junction at 5.00 p.m., he got information about the sale of arrack by the accused and immediately he went to that place and saw the accused standing there holding MO2 bag in his hand and on seeing the police party, he tried to go away from that place. So they intercepted him and examined MO2 bag and found MO1 series bottles of 750 ml., each containing some liquid and on examination, he was convinced that it was arrack. So he sealed the same and seized the same as per Ext.P1 mahazar, in the presence of witnesses, arrested the accused and thereafter he came to the police station and registered Ext.P3 crime against the appellant. 13. The police official PW1 who accompanied Crl.A. 2007/2003 9 PW4 corroborated his evidence on this aspect. Though PWs1 and 4 were cross examined at length, nothing was brought out to discredit their evidence regarding this aspect. 14. It is settled law that, merely because the seizure witnesses turned hostile is not a ground to acquit the accused and if the court is satisfied with the evidence of official witnesses, then court can rely on their evidence and convict the accused. So under the circumstances, it can be safely concluded that, the prosecution has proved beyond reasonable doubt that, the appellant was arrested by PW4 along with Mos 1 and 2, which according to the prosecution contained illicit arrack. 15. Mere arrest of the accused with some liquid is not sufficient to convict the accused for the possession of arrack. It must be proved by the prosecution that, the articles seized was arrack. For that purpose, the prosecution relied on the evidence of PW4 and Ext.P4 chemical analysis report, which shows that, the articles Crl.A. 2007/2003 10 contained ethyl alcohol and it is not in tune with the standard provided for the arrack and they wanted to relied on this for the purpose of proving that it is illicit arrack. It must be proved by the prosecution that, the article seized was produced before court without delay without any room for tampering and Ext.P4 chemical analysis report relates to the sample said to have been taken from the contraband article seized from the possession of the accused, so as to convict him for the said offence. In this case PW4 has stated that, after coming to the police station and registering the case, he had entrusted the articles to the writer of the police station to produce the same before the court. But it is seen from the property list that, it reached the court only on 23.12.2000, after nearly 11 days of the seizure. Further no report has been filed explaining the delay by the investigating officer as well. Further there is no spot sample taken and it is not known from where the sample was taken, but there is only an endorsement on 20.01.2001, that sample from items sent for chemical Crl.A. 2007/2003 11 examination on 20.01.2001. It is not mentioned that, sample was drawn from the court and if so, who had drawn the sample as well. 16. In the decision reported in **(2007(1) KLT 720) Sasidharan v. State of Kerala** , this court has held that, without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the chemical examiner with the specimen seal sent separately for tamper proof despatch, the prosecution cannot be held to have brought home the offence against the appellant. The prosecution had a duty to prove that, it was the sample taken from the contraband liquor seized from the accused, which had reached the hands of the chemical examiner in a full proof condition. In the same decision, it has been further observed that, committing magistrates have to take contemporary proceedings evidencing the drawing of the sample and sending the same to the chemical examiner in a tamper proof condition are recorded in the proceedings Crl.A. 2007/2003 12 before the court. The Sessions Judge trying such cases also should ensure that, the concerned member of the staff who had drawn the sample and despatched the same to the chemical examiner duly packed and sealed under the covering letter of the magistrate is examined before the court during trial. The learned Public Prosecutor in charge of the case also had a duty to file an additional witness list for examining the thondy section clerk (property clerk) concerned, so as to establish the nexus between the contraband substance and the accused. 17. Further in the decision reported in ( **2011(3) KLT 353) Ravi v. State of Kerala** , the Division Bench of this court has held that, it is not necessary that, the article seized under Section 34 of the Act should be produced before the magistrate court forthwith either by virtue of Section 102(3) of the Code of Criminal Procedure or any other provisions of the Abkari act or Abkari manuel. But the delay must be explained to the satisfaction of the court. If it is not explained to the satisfaction of the court, then Crl.A. 2007/2003 13 that benefit must be given to the accused. Further the same decision, it has been held that, no conviction can be entered against the accused in a prosecution as the present one, unless it is proved that, the sample which was analysed in the chemical examination laboratory was the very same sample drawn from the contraband liquor, allegedly found in the possession of the accused. 18. In this case, the delay in producing the contraband article has not been properly explained so as to convince the court that, it was produced before the court tamper proof and further in the absence of spot sample taken from the spot and the evidence adduced on the side of the prosecution to prove that, it was taken from the court and it was sent in a tamper proof manner to the lab, it cannot be said that, the prosecution has proved beyond reasonable doubt that, Ext.P4 chemical analysis report relates to the representative sample of the contraband article seized from the possession of the accused, so as to convict him for the possession of arrack said to be in his Crl.A. 2007/2003 14 possession under Sections 55(a) or 8(1) of the Abkari Act. This aspect has not been considered by the court below while appreciating the evidence. So the finding of the court below that, the prosecution has proved beyond reasonable doubt that, the accused was found to be in possession of arrack and consequential conviction entered by the court below against the accused under Section 55(a) of the Abkari Act is unsustainable in law and the same is liable to be set aside. So the finding of the court below that, the appellant had committed the offence punishable under Section 55(a) of Abkari Act is set aside and the appellant is acquitted of the charge leveled against him giving the benefit of doubt. The point is answered accordingly. 19. Point No.II. In view of the finding of Point No.I that, the appellant is entitled to get acquittal, the sentence imposed by the court below is also illegal and the same is also set aside. The point is answered accordingly. In the result, the appeal is allowed and the order of conviction and sentence passed by the court below Crl.A. 2007/2003 15 against the appellant in S.C.No.1905/2001 under Section 55 (a) of the Abkari Act are hereby set aside and the appellant is acquitted of the charge leveled against him, giving him the benefit of doubt. He is set at liberty. The bail bond executed by him will stand cancelled. If the appellant has deposited any amount towards fine imposed, then the lower court is directed to refund the same to him on making an application for that purpose. Office is directed to communicate this judgment to the court below at the earliest. Sd/- K. RAMAKRISHNAN, JUDGE // True Copy// P.A. to Judge ss