Vinod s/o Achuthan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 18TH DAY OF MAY 2020 / 28TH VAISAKHA, 1942** ## **CRL.A.No.530 OF 2008** **AGAINST THE JUDGMENT IN SC 204/2007 DATED 08-02-2008 OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)-II, KALPETTA** ## **APPELLANT/1ST ACCUSED** **VINOD S/O ACHUTHAN, PANAPPADY HOUSE, NOOLPUZHA, NAIKATTY, SULTHANBATHERY.** **BY ADV. SRI.S.M.PRASANTH** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SR.PP. SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. APPEAL NO.530 OF 2008 2 ## **JUDGMENT** **The above appeal is filed against the judgment dated 8.2.2008 in S.C.No.204/2007 on the file of the Additional Sessions Judge (Adhoc) II, Kalpetta. The above case is charge sheeted by the Sulthanbathery Police against the appellant herein and two others alleging offences punishable under Section 55(a)(b) and (g) of the Kerala Abkari Act. The appellant herein is the 1[st] accused.** **2. The prosecution case is that, on 02.04.2007 at 11 p.m., the accused were found in possession of 11 litres of country made arrack. It is also the prosecution case that, the accused were found engaged in distilling the arrack and thus they have committed the offence alleged.** **3. To substantiate the case, the prosecution examined PWs.1 to 4. Exhibits P1 to P7 are the exhibits marked on the side of the prosecution. MO1 to MO10 are the material objects.** CRL. APPEAL NO.530 OF 2008 3 **4. After trial, the trial court found that the accused is guilty of the offences under Section 55(b) and (g) of the Abkari Act. The appellant was convicted and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,00,000/- under Section 55 (b) and (g) of the Abkari Act. In default of payment of fine, the accused are directed to undergo rigorous imprisonment for 6 months.** **5. Aggrieved by the conviction and sentence, the first accused before the lower court filed this appeal.** **6. Heard the learned counsel for the appellant and the learned Public Prosecutor.** **7. The learned counsel for the appellant contended that the entire allegations against the appellant are incorrect. No contraband was seized from the appellant. It is also contended that, no independent witnesses were examined in this case and that itself shows the falsity of the prosecution case. It is also contended that, even** CRL. APPEAL NO.530 OF 2008 4 **if the prosecution case is accepted, there is no evidence to show that the seized articles forwarded to the Analyst. It is also contended that the sample sent for analysis are suspected arrack and wash, but the Analyst report will not show, whether it is arrack or wash and the Analyst report only says that, the sample contains Ethyl Alcohol. The learned Public Prosecutor submitted that the accused in the case were arrested red handed with material for manufacturing illicit arrack. Therefore, this Court may not interfere with the conviction and sentence passed by the lower court.** **8. Section 36 of the Abakari Act says that, all searches under the provisions of the Abakari Act shall be made in accordance with the provisions of the Code of Criminal Procedure, 1973. The proviso to Section 36 says that, the persons called upon to attend and witness search shall include atleast two persons neither of who is an Abkari or Police or Village Officer. The admitted prosecution case is that, the detecting officer and his** CRL. APPEAL NO.530 OF 2008 5 **subordinates seized the contraband articles without the presence of any independent witnesses. A perusal of Ext.P2 seizure mahazar, which is the contemporaneous document, will not show any explanation regarding the non-availability of independent witnesses. When Section 36 mandates that the presence of independent witnesses are necessary, the prosecution cannot keep mum regarding the non availability of independent witnesses. Of course, it is a settled position that the presence of independent witness mentioned in proviso to Section 36 of Abakari Act is not mandatory. But an explanation is necessary regarding the non availability of the independent witness in the contemporaneous records especially because the offences alleged against the accused are serious in nature and the maximum punishment that can be imposed is 10 years and the minimum fine that is to be imposed is Rs.1,00,000. The learned Public Prosecutor fairly admitted that, in the seizure mahazar, there is no mention regarding** CRL. APPEAL NO.530 OF 2008 6 **the non availability of the independent witness. When the statute prescribes certain conditions to be followed when a search is conducted, if there is no explanation is given by the prosecution for the violation of such procedure, that is fatal to the prosecution. In this case, the accused has got a case of total denial. When the accused denied the seizure and arrest of the accused from the place of occurrence, it is the duty of the prosecution to prove the seizure and arrest with the help of independent witness especially when proviso to Section 36 of the Abkari Act clearly says so. When this question was put to PW1, who is the detecting officer in this case while cross examining him, PW1 answered that, independent witnesses were not available and he tried to get the independent witnesses. PW2, the Head Constable who accompanied PW1 deposed that, since nobody was present at the place of occurrence, independent witness not signed in the seizure mahazar. PW2 has no case that PW1 attempted to get an independent witness. The** CRL. APPEAL NO.530 OF 2008 7 **learned Sessions Judge observed that, since the seizure was at 11 p.m., ther may not be any independent witnesses available in the locality. This is not a matter to be inferred by the learned Sessions Judge. When the statute prescribes certain formalities for search and seizure, the prosecution is bound atleast to explain the reason for the violation of the procedure. There is nothing in Ext.P4 seizure mahazar regarding the non availability of the independent witness. The version of PW1 and PW2 regarding the availability of independent witness are contrary. Moreover, it is also admitted by PW4 that, there is a colony about 500 meters away from the place of occurrence. When the statute prescribes certain formalities at the time of search and seizure, it is the duty of the detecting officer to find out an independent witness. It is a settled position that simply because, there is violation of proviso to Section 36 of the Abkari Act, the entire prosecution case can't be disbelieved. But, if there is no valid** CRL. APPEAL NO.530 OF 2008 8 **explanation regarding the non availability of independent witness at the time of search and seizure, especially when the search and seizure is denied by the accused, it is fatal to the prosecution. In such circumstances, on this ground itself this appeal can be allowed. Moreover, the Apex Court while considering an appeal against the conviction in an offence under the Narcotic Drugs & Psychotropic Substances Act considered the relevance of the examination of independent witnesses. In Vijay Pandey v. State of Uttar Pradesh [AIR 2019 SC 3569] the Apex court considered the same. The relevant portion of the said judgment is extracted hereunder:** _**“We have considered the respective submissions. Seizure was at 06.40 A.M. at the door step of the appellant. We find it difficult to believe that in a rural residential locality, the police were unable to find a single independent witness. No name of any person has been mentioned who may have declined to be a witness.”**_ CRL. APPEAL NO.530 OF 2008 9 **In addition of this, as per the seizure mahazar, four samples were taken for analysis and the samples were marked as X1, X2, X3 and X4. In the seizure mahazar, it is stated that the sample bottles were sealed. The seal used by the detecting officer is not affixed in the seizure mahazar. Moreover, there is no case to the detecting officer that, his personal seal was affixed in the sample bottle. It is a settled position that, all the links starting from seizure, till it reaches at the hands of the Analyst has to be proved by the prosecution. In this case, the seizure mahazar which is a contemporaneous document in this case will not show the seal used. Moreover, which seal is used is also not clear from Ext.P2. But in the evidence, it is stated that the seal of the Station House Officer is used. But such a seal is not seen in the seizure mahazar. Therefore, the link from seizure till it reaches the Police Station is also not proved in this case. Moreover a perusal of Ext.P5 will show that total six bottles of sample** CRL. APPEAL NO.530 OF 2008 10 **were forwarded for examination. The bottles are marekd as X1, X2, X3, X4, X5 and X6. The nature of examination requested in Ext.P5 forwarding note is like this:- “liquor seized is whether country-made arrack or not”. Exhibit P6 analyst report will only shows that, the sample contained certain percentage of volume of Ethyle Alcohol. This will not prove that the same is country-made arrack.** **9. In any way, considering the facts and circumstances mentioned above, I think, the prosecution is not able to prove the case. In such circumstances, I think, the benefit of doubt will go to the accused.** **Hence, this Criminal Appeal is allowed and** **the conviction and sentence imposed on the appellant/first accused is set aside. The bail bonds executed by the appellant are cancelled.** **Sd/-** **P.V.KUNHIKRISHNAN, JUDGE** **pkk**