Vijayan s/o Issac Nadar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 ``` ## **`CRL.A NO.205 OF 2014`** ``` AGAINST THE CONVICTION AND SENTENCE IN S.C.NO.1744 OF ``` ``` 2007 ON THE FILE OF ADDITIONAL SESSIONS JUDGE, NEYYATTINKARA ``` ``` APPELLANT/ACCUSED: ``` ``` VIJAYAN ``` ``` S/O.ISSAC NADAR, MANACHAMKUZHI, KANNANKUZHY, POTTAKUZHI, NADOORKOLLA DESOM, KOLLAYIL VILLAGE, NEYYATTINKARA TALUK ``` ``` BY ADV. SRI.G.SUDHEER ``` ``` RESPONDENT/COMPLAINANT: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM ``` ``` SMT MAYA M.N- P.P ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` Crl.Appeal No.205 of 2014 ## **JUDGMENT** ## Ajithkumar, J The appellant is the accused in Sessions Case No.1744 of 2007 on the file of the Additional Sessions Court, Neyyattinkara. He was convicted and sentenced for an offence punishable under Section 8(2) of the Abkari Act, 1077. The sentence imposed is simple imprisonment for a period of six months and to pay a fine of Rs.1,00,000/- with a default sentence of three months. The appellant assails the said conviction and sentence in this appeal filed under Section 374(2) of the Code of Criminal Procedure 1973. 2. The appellant stood trial on the charge at about 6 p.m on 22.01.2005. He was found in possession of 5 litres of arrack which he carried in a jerry can of 5 litres capacity. He was so found on the side of Amaravila–Marayamuttom road in Nadoorkolla desom, Kollayil village near Kannakuzhi railway cross. 3. The prosecution has examined PWs.1 to 6 and proved Exts.P1 to P8 besides, identification of MO1 in order to prove the case. During the examination under Section 313(1)(b) ``` 3 ``` Crl.Appeal No.205 of 2014 of the Code the appellant took the stand that he was innocent and he was falsely implicated in the case. No witness was examined by the appellant though Ext.D1 was got marked. Additional Sessions Court, after considering the said evidence, found that the evidence of PWs.1 and 2 who are the Preventive Officer and Excise Guard is believable even in the absence of any independent evidence and accordingly entered the finding that the appellant possessed the contraband as alleged in the charge. On further finding that the samples prepared by PW1 at the time of detection duly had reached the chemical examination laboratory and it was found contained Ethyl Alcohol enabling the inference that it was arrack, found the appellant guilty of the offence punishable under Section 8(2) of the Abkari Act. 4. The learned counsel appearing for the appellant would submit that the versions of PWs.1 and 2 are contradictory to each other and in the absence of any independent evidence, having PWs.3 and 4 turned hostile to the case of the prosecution, there is a dearth of evidence even to establish arrest of the appellant as alleged. The learned counsel further ``` 4 ``` Crl.Appeal No.205 of 2014 would contend that no seal was seen affixed in Ext.P1 Seizure Mahazar which infers that the sample seal said to have been affixed on the samples would not help to co-relate the contraband with the sample allegedly examined in the chemical examiner’s laboratory. It is pointed out that the endorsement in Ext.P8 Chemical Analysis Report would not by itself help that the sample prepared at the time of seizure is the sample examined in the laboratory. It is further contended that there is non-compliance with the provisions of Section 53A of the Abkari Act; the provisions being mandatory, the noncompliance necessarily would fail the case of the prosecution. 5. The learned Public Prosecutor on the other hand would contend that despite PWs.3 and 4 turning against the case of the prosecution, evidence of PWs.1 and 2 stands unimpeached and their evidence is enough to establish involvement of the appellant in the offence. As regards the contention that provisions of Section 53A of the Abkari Act are not complied with, it is submitted by the learned Public Prosecutor that no such contention was raised before the learned Additional sessions Court and therefore the same ``` 5 ``` Crl.Appeal No.205 of 2014 cannot be reckoned with now. 6. PW1 is the Preventive Officer attached to the Excise Circle Office, Neyyatinkara. PW2 is an Excise Guard. Both of them deposed before court regarding the detection, seizure and arrest of the appellant. It is their version that while on patrol duty they saw the appellant carrying a Jerry can and on their interception and inspection they found the can contained arrack. They further deposed that the contraband was seized after preparing two samples. The samples as well as the can containing the remaining contraband were sealed and after obtaining signatures of the appellant and witnesses seized under Ext.P1 Mahazar. Signatures of the witnesses were also obtained in Ext.P1. 7. Two independent witnesses who allegedly signed Ext.P1 Mahazar and also wrappers on the samples as well as the contraband are PWs.3 and 4. While examined in Court, both of them denied having so signed. The learned Public Prosecutor could not elicit any evidence from them although attempted by putting questions that may be put in the cross examination. The result is that the evidence available to prove the complicity ``` 6 ``` Crl.Appeal No.205 of 2014 of the appellant is the oral testimony of PWs.1 and 2, who are the official witnesses, alone. The learned counsel for the appellant would point out that the evidence of PW2 is so shabby and as he feigned ignorance as to several facts, the same is not available to the help of the prosecution. On going through the oral testimony of PWs.1 and 2, it is not able to find any material inconsistency contradicting each other. Evidence of PW2 with reference to the material aspects of arrest of the appellant and seizure of contraband from his possession is cogent. Their oral testimonies on relevant aspects are cogent and Ext.P1, the contemporaneous document executed by PW1 lend support to the oral evidence. ## 8. The Apex Court in **Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217]** held: "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". 9. In **Tahir v. State (Delhi) [(1996) 3 SCC 338]** , ## dealing with a similar question, the Apex Court stated: ``` 7 ``` Crl.Appeal No.205 of 2014 "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.” 10. In **Karamjit Singh v. State (Delhi** ## **Administration) [AIR 2003 SC 1311]** the Apex Court again held,- “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” ## 11. In **Baldev Singh vs State Of Haryana [(2015)** **17 SCC 554]** the Apex Court reiterated that view. When the aforesaid evidence tendered by PWs 1 and 2 is considered in the light of the decisions referred to above, it can be found that the prosecution has succeeded in proving seizure of contraband from the possession of the appellant. ``` 8 ``` Crl.Appeal No.205 of 2014 12. Coming to the contentions of the appellant that the failure to affix seal in the seizure mahazar and non compliance of Section 53A of the Abkari Act, there is substance. It is true that in Ext.P5 forwarding note sample seal has been affixed. Obviously the same was prepared by PW5, the Excise Inspector after registration of the crime. Therefore, affixture of a seal in Ext.P5 on the subsequent point of time, will not save the lack of seal in Ext.P1 Mahazar. 13. On the seizure of objectionable articles as provided in Section 34 of the Abkari Act, the matter has to be reported to the court concerned immediately by submitting an inventory prepared by the authorized officer and to get it attested. In order for production of the contraband, a detailed procedure is laid down in Section 53A of the Abkari Act and compliance of the said procedure is mandatory. There is no evidence showing that Section 53A of the Abkari Act has been complied with. PW5 or PW6 did not state anything regarding those aspects. In the absence of any evidence to correlate the sample with the contraband and also in regard to the compliance of Section 53A of the Abkari Act it cannot be said that the prosecution has ``` 9 ``` Crl.Appeal No.205 of 2014 ## satisfied the requirements for a successful prosecution. 14. There is thus lack of evidence to prove beyond doubt that the sample prepared at the place of occurrence was duly examined by the chemical examiner. Together with that the non compliance of Section 53A of the Abkari Act makes the case of the prosecution unreliable. The learned Additional Sessions Judge did not take into account those aspects while appreciating the evidence and reaching a finding regarding the guilt of the accused. I am of the view that the said finding is unsustainable in law and liable to be set aside. Hence I find that conviction and sentence imposed on the appellant are bad in law. 15. The judgment dated 15.02.2014 in S.C.No.1744 of 2007 before the Additional Sessions Court, Neyyattinkara is set aside. Appeal is allowed. The appellant is hence acquitted and set at liberty. ## **P.G. AJITHKUMAR, JUDGE** PV