Vasudevan @ Vasu v. State

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935 CRL.A.No. 1287 of 2003 ----------------------[AGAINST THE JUDGMENT IN SC 79/2000 of THE COURT OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-I), KASARAGOD DATED 30-06-2003] APPELLANT/ACCUSED: ------------------ VASUDEVAN @ VASU, AGED 22 YEARS, S/O.KARIYAN, KOTTIKULAM, PALLIKKARA, KASARAGOD DISTRICT. BY ADV. SRI.K.P.HARISH RESPONDENT/COMPLAINANT: ----------------------- STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KAHDIR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 1287 of 2003** **----------------------------------------** Dated this the 23[rd] day of September, 2013 ## **J U D G M E N T** The sole accused in Crime No.89/1999 of the Bekal Police Station is the appellant herein and he challenges his conviction and sentence imposed on him by judgment dated 30.6.2003 in S.C.No.79 of 2000 of the court of Additional Sessions Judge (Ad Hoc-I), Kasaraogd for the offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 11.3.1999 at about 6.30 p.m., the accused was found in possession of ten bottles of Original Choice Fine Whiskey, each containing 750 ml., near Kottikulam bus waiting shed on the road margin of Kasaragod-Kanhanagad public road and thus, the accused has committed the offence punishable under Section 55(a) of the Abkari Act. On completing the investigation, a report was filed, on the basis of which S.C.No.79 of 2000 was instituted. Crl.A.No. 1287 Of 2003 :-2-: During the trial of the case, Pws.1 to 3 were examined and Exts.P1 to P5 were marked. After questioning the accused under Section 313 of the Cr.P.C. and after hearing the case, the learned Sessions Judge found that the accused is guilty under Section 55(a) of the Abkari Act and consequently, he is sentenced to undergo rigorous imprisonment for three years and to pay fine of `1 lakh and in default, he is directed to undergo rigorous imprisonment for six months. Set off is allowed. The above finding and order of conviction and sentence are challenged in this appeal. 3. Heard Sri.K.P.Harish, learned counsel for the petitioner and the learned Public Prosecutor. 4. The learned counsel for the appellant vehemently submitted that there is no evidence to support the prosecution case and the prosecution has miserably failed to prove that the sample produced in the court is drawn from the contraband articles allegedly possessed by the appellant and in order to substantiate the above point, the learned Crl.A.No. 1287 Of 2003 :-3-: counsel pointed out that even according to PW3, he has not claimed that the sample bottle contained the signature of the accused. It is also contended that the contraband articles are not produced before the court and there is no compliance of Section 53 of the Kerala Abkari Act. According to the learned counsel, the finding of the court below is factually and legally unsustainable and therefore, the conviction recorded against the appeal is liable to be set aside. 5. I have heard the learned Public Prosecutor, who on the other hand submitted that the appellant was arrested along with the contraband articles and he has no explanation as to how he came into the possession of the contraband articles. According to the learned Public Prosecutor, the contemporary documents like Ext.P1 mahazar, Ext.P2 scene mahazar, Ext.P4 forwarding note supported by the evidence of Pws.1 to 3 show the involvement of the appellant and therefore, the learned Judge of the trial court is fully justified in his finding and no interference is warranted. Crl.A.No. 1287 Of 2003 :-4-: 6. I have carefully considered the arguments advanced by the learned counsel appearing for the appellant and the learned Public Prosecutor. 7. Having regard to the facts and circumstances involved in the case and especially in the light of the rival contentions, the question to be considered is whether the trial court is justified in convicting the appellant for the offence punishable under Section 55(a) of the Abkari Act. 8. The specific case of the prosecution is that the appellant/accused was found in possession of ten bottles of Original Choice Fine Whiskey, each containing 750 ml. near Kottikulam bus waiting shed on the road margin of Kasaragod-Kanhanagad public road and thus, according to the prosecution, the accused imported the contraband articles which were meant for use in Karnataka State and he was found in possession of the contraband articles while transporting the same. In this juncture, it is relevant to note that Crl.A.No. 1287 Of 2003 :-5-: though PW3 claimed that the appellant/accused was seen stepping down from the K.S.R.T.C.bus with a bag, he did not even question the conductor and driver of the bus from which allegedly the appellant/accused alighted. It is also relevant to note that PW1, who is the attestor of seizure mahazar, turned hostile. So, to prove the fact that the appellant was intercepted and arrested when he was transporting the contraband articles from the State outside and thereby attracted Section 55(a), absolutely there is no evidence. A learned v. Judge of this Court, in the decision reported in **Narayanan Nair State of Kerala** [2011(3) KLT 722], held that to prove the offence under Section 55(a) read with Rule 9, the prosecution must prove that the accused brought IMFL to State of Kerala from some place which lies outside the State. On examination of the facts and circumstances involved in the case and the evidence and materials relied on by the prosecution, in the light of the above decision, I am of the view that the prosecution has miserably failed to establish the essential Crl.A.No. 1287 Of 2003 **==> picture [21 x 9] intentionally omitted <==** ingredients of Section 55(a) to sustain the conviction of the appellant for the said offence. 9. It is pertinent to note that according to the prosecution and from the claim of PW3, the detecting officer, the contraband articles were seized from the possession of the appellant on 11.3.1999, but in the cross-examination, PW3 in an unequivocal language deposed that the forwarding note as well as the material objects reached the court only on 18.6.1999 after three months from the date of seizure. PW3 says that the articles were in his custody. Suffice to say, PW3 has not given any evidence as to how he kept the contraband articles in safe custody. He has not stated as to where the contraband articles were kept and what were the safety measures adopted to keep the articles intact. According to me, the above facts assume importance since PW3 has stated, during his cross examination, that the signature of the accused was not obtained in the sample. So the above claim of PW3 cannot be taken in its face value. Crl.A.No. 1287 Of 2003 :-7-: 10. Further, it is more important to note that though the articles are said to have been taken into the custody on 11.3.1999, the same reached in the court only on 18.6.1999 and there is a delay of three months for which absolutely there is no explanation. So, the above unexplained delay has to be considered in the context, where there is no plausible and convincing evidence regarding the safety measures adopted by PW3 to keep the articles in tact. A learned Judge of this Court reported in **Ravi** v. **State of Kerala** [2011(3) KLT 353] held that the prosecution has the duty to prove that it was the sample taken from the contraband liquor seized from accused which had reached the hands of Chemical Examiner in a fool proof condition. Besides the defect, which I pointed out about the delay in reaching the samples in the court and the failure on the part of PW3 in keeping the article in tact, it is also relevant to note that absolutely there is no description in Ext.P1 seizure mahazar, how PW3 had drawn sample and what are the safety measures adopted to keep the sample in tact. In the absence of ## Crl.A.No. 1287 Of 2003 :-8-: any such description in Ext.P1 seizure mahazar and especially, when PW3 admitted that the signature of the accused was not obtained in the sample bottle and particularly when there is huge delay in reaching the sample as well as the contraband article in the court and when there is no evidence about the safety measures adopted by PW3 to keep the samples in tact, according to me, the prosecution version cannot be believed and the accused is entitled to the benefit of doubt, especially in the light of the decision cited supra. Therefore, the conviction recorded by the court below is set aside. In the result, this appeal is allowed, setting aside the judgment dated 30.6.2003 in S.C.No.79 of 2000 of the court of Additional Sessions Judge (Ad Hoc-I), Kasaragod, acquitting the accused of all the charges levelled against him and the bail bond, if any, executed by him shall stand cancelled and he is set at liberty. sd/- MBS/ ## **V.K.MOHANAN, Judge.** ## Crl.A.No. 1287 Of 2003 :-9-: