Kerala High Court
Appu vs The State Of Kerala Rep. By The on 26 June, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 2ND DAY OF DECEMBER 2015/11TH AGRAHAYANA, 1937
CRL.A.No. 1011 of 2004 ( )
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AGAINST THE JUDGMENT IN SC 420/2001 of ADDITIONAL DISTRICT COURT
(ADHOC), MANJERI DATED 26-06-2004
APPELLANTS/ACCUSED:
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1. APPU
PALATHINGAL HOUSE, MUNDPOTTI, VAZHIKADAVU
MALAPPURAM DISTRICT.
2. KRISHNAN S/O. KESAVAN,
VENGALLERI HOUSE, MUNDAPOTTI, VAZHIKKADAVU,
MALAPPURAM DISTRICT.
BY ADV. SRI.BABU S. NAIR
RESPONDENT/STATE:
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THE STATE OF KERALA REP. BY THE
EXCISE INSPECTOR, NILAMBUR EXCISE RANGE -THROUGH
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
KOCHI-31.
BY PUBLIC PROSECUTOR SRI.JIBU P. THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-12-2015,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. RAMAKRISHNAN, J.
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Crl.A.No.1011 of 2004
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Dated this the 2nd day of December, 2015
JUDGMENT
Accused Nos. 1 and 2 in SC.No.420/2001 on the file of the Additional Sessions Court, Fast Track-I, Manjeri are the appellants herein. The appellants were charge sheeted by the Excise Inspector, Nilambur excise range under section 55(a) of the Abkari Act, which ought to be under section 8(1) of the Abkari Act.
2.The case of the prosecution in nutshell was that, on 8.11.1999, at about 6 p.m, the accused persons were found to be in possession of 80 litres of illicit arrack in 8 cannases of 10 litres capacity each, out of which they were found transiting with two cannases at the place called Mundapotti through a pathway in violation of the provisions of the Abkari Act and thereby they have committed the offence punishable under section 55(a) of the Abkari Act.
3. After investigation, final report was filed before the Judicial First Class Magistrate Court, Nilambur where it was taken on file as C.P.No.10/2001. After complying with the formalities, the learned Magistrate committed the case to Crl.A.No.1011 of 2004 2 Sessions Court, Manjeri under section 209 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). After committal, the Sessions Court took cognizance of the case as SC.420/2001 and thereafter it was made over to the Additional Sessions Court, Adhoc-I, Manjeri for disposal.
4. When the accused appeared before the court below, after hearing both sides charge under section 55(a) (ought to be under section 8(1)) of the Abkari Act was framed and the same was read over and explained to them and they pleaded not guilty. In order to prove the case of the prosecution, Pws 1 to 6 were examined and Exts.P1 to P9 and Mos 1 series were marked on their side. After closure of the prosecution evidence, the accused were questioned under section 313 of the Code and they denied all the incriminating circumstances brought against them in the prosecution evidence. They have further stated that they have not committed any offence and they have been falsely implicated in the case. No articles were seized from their possession. Since evidence in this case did not warrant an acquittal under section 232 of the Code, the accused were called upon to enter on their defence, but no defence evidence was adduced on their side except marking of Exts.D1 Crl.A.No.1011 of 2004 3 and D2. After considering the evidence on record, the court below found the appellants guilty under section 55(a) of the Abkari Act and convicted them thereunder and sentenced them to undergo rigorous imprisonment for 5 years and also to pay a fine of Rs. One lakh, in default to undergo simple imprisonment for one year more. Set was allowed for the period of detention already undergone under section 428 of the Code. Aggrieved by the same, the above appeal has been filed by the appellants, accused before the court below.
5. Heard Smt. Smitha Babu, counsel representing Babu S. Nair, counsel for the appellants and Sri. Jibu P.Thomas, Public Prosecutor appearing for the State.
6. Learned counsel for the appellants submitted that though the case of the prosecution was that 2 cannases containing 10 litres capacity each of arrack was seized from the hands of the accused and six from the place alleged to have been shown by them, sample was taken only from two of the cannases, which throw suspicion about the seizure. Further, though it was mentioned in the mahazer that seal was affixed, nature of the seal affixed was not mentioned. There was contradiction in the evidence of Pws 1 and 2 regarding the Crl.A.No.1011 of 2004 4 manner in which the label affixed. Further, the evidence of PW1 will go to show that he had not put the crime number seen on the label in the cannases and he did not know who put the crime number as well. He had not mentioned with whom he had entrusted the contraband articles till it was seen by PW6. The specimen seal impression was not either affixed in the forwarding note or in the seizure mahazer and it was not produced before court as well. So under the circumstances, it cannot be said that the articles reached the court in a tamper proof condition so as to come to the conclusion that chemical analysis report relates to the representative sample said to have been taken from the possession of the accused. So the appellants are entitled to get acquittal.
7. On the other hand, learned Public Prosecutor submitted that there was no delay in producing the article and there is nothing brought out to discredit the evidence of Pws 1 and 2 regarding the same as well. So the court below was perfectly justified in convicting the appellants for the offence alleged.
8. The case of the prosecution as emerged from the prosecution witnesses was as follows:
On 8.11.1999, at about 6 p.m, while PW1, the Preventive Crl.A.No.1011 of 2004 5 Officer along with PW2, an excise guard were doing patrol duty and when they reached the pathway proceeding to Mundapotty, they found both the accused coming from opposite direction carrying one cannas each in their hands and on seeing the excise party, they got perplexed and tried to run away from the place. So PW1 stopped them and verified the contents of the cannases and found that it contained 10 litres of arrack which he satisfied by smelling and tasting of the same. Thereafter he took sample from each cannas, sealed and labelled the same containing the particulars of the excise office, name of the accused and signatures containing himself and the accused. Thereafter he had sealed and labelled the cannases also in the same fashion. He arrested the accused and prepared Exts.P2 and P3 arrest memos. Thereafter when he questioned the accused persons, it was revealed that they had kept six more cannases containing arrack on the side of the road and he went to that place along with them and found six more cannases containing arrack which also he seized along with other cannases and sample bottle as per Ext.P1 mahazer in the presence of Pws 3 and 4. He gave arrest intimation to the relatives evident by Exts.D1 and D2. Thereafter he came to the Crl.A.No.1011 of 2004 6 excise office and entrusted the accused as well as the contraband articles to PW5, the Excise Inspector, who registered Ext.P6 crime and occurrence report as Crime No.38/1999 of Nilambur excise range against the accused persons under section 55(a) of the Abkari Act on the next day namely
9.11.1999. He produced the accused before court along with the remand report. He produced the contraband articles before court on 9.11.99 along with Ext.P7 property list. He sent Ext.P8 forwarding note with a request to send the sample for analysis and samples were sent from court and Ext.P9 chemical analysis report obtained which shows that the sample contained 36.60 and 36.72 % by volume of ethyl alcohol. Investigation in this case was conducted by PW6. He questioned the witnesses and recorded their statements. He collected Ext.P9 chemical analysis report and produced before court and he completed the investigation and submitted final report.
9. Pws 3 and 4 are the independent witnesses to the seizure. They admitted their signature in Ext.P1. According to them, they signed the mahazer from the excise office on the next day. They also stated that they did not know the accused. They denied having stated in Exts.P3 and P4 when questioned Crl.A.No.1011 of 2004 7 by the investigating officer. So their evidence is not helpful to prove either arrest or seizure of the articles from the possession of the accused.
10. Then the evidence available is that of Pws 1 and 2, the detecting officer and the excise guard who accompanied him. According to them, while they were doing patrol duty, they saw the accused carrying one cannas each in their hand and on seeing the excise party, they got perplexed and so they stopped them and PW1 verified the cannas and found that it was arrack. When he questioned the accused, they told that they have concealed six more cannases on the side of the road and after taking sample from the cannases carried by them, he sealed and labelled the same. They went to that place and found six more cannses with 10 litres capacity each of arrack. They have affixed label and sealed the same also and seized all these articles as per Ext.P1 mahazer and came to the excise office and entrusted the same to PW5, the Excise Inspector. Though they were cross examined at length, nothing was brought out to discredit their evidence on this aspect.
11. It is true that no sample was taken from other six cannases which were said to have been seized on the basis of Crl.A.No.1011 of 2004 8 the information given by the accused persons. But that alone is not sufficient to disbelieve their evidence on this aspect. So the court below was perfectly justified in coming to the conclusion that the prosecution was able to prove that fact. It is not clear from Exts.D1 and D2 that as to whom the arrest intimation was given and it is admitted by PW1 that no signature of the person to whom arrest intimation was obtained and the name of the person to whom it was given was not specified in the notice. But it is only an irregularity and that will not affect the seizure or arrest as such. So the court below was justified in coming to the conclusion that the prosecution was able to establish that both the accused were arrested by PW1 along with 8 cannases said to have contained arrack.
12. Mere arrest of the accused with some cannases alone is not sufficient to convict the accused unless it is proved by the prosecution that these articles reached the court as well as in chemical examiner's lab in a tamper proof condition so as to link chemical analysis report with the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. In this case, though seizure was effected on 8.11.1999 at about 6 p.m, Crl.A.No.1011 of 2004 9 they reached the hands of the Excise Inspector on the next day. The crime was not registered on the same day. According to PW1, the Excise Inspector was not available in the office, but according to PW2, when they came to the excise office, the Excise Inspector was there. But according to PW5, the Excise Inspector, though he was on duty, he was not in the office at the time when PW1 came with the accused and the contraband article. PW1 did not mention what he had done with the accused and the contraband articles till they were produced before PW5.
13. Further, it was admitted by PW1 that he had not written the crime number on the label, whereas the label seen on MO1 series produced in court carries crime number. PW5 had also no case that he had made any entries in the label. Even he had stated that crime was registered on the next day, he did not know in whose handwriting Ext.P6 crime and occurrence report and Ext.P8 forwarding note were prepared. PW1 had admitted that he did not mention the nature of seal used in Ext.P1 and he did not produce the specific seal impression also either to the Excise Inspector or to the investigating officer. PW5, the Excise Inspector who registered Crl.A.No.1011 of 2004 10 the crime and sent the forwarding note to court also mentioned that he did not put the specimen seal impression of the seal used for sealing the article in the forwarding note.
14. It is settled law that specimen seal impression is either put in the forwarding note or in the property list and in the seizure mahaser so as to give an opportunity to the court to verify the same and satisfy that these articles reached the court without any tampering and also for the chemical examiner to examine the sample and come to the conclusion that it reached court without any tampering. Though in Ext.P9 chemical analysis report, it was mentioned that the seal seen on the bottle were intact and even tallied with the sample seal provided, quite unfortunately, the forwarding note contained the specimen seal of the court alone on the place provided for sample seal. So there is no possibility for the chemical examiner to ascertain the original seal said to have been put on the sample bottle by PW1 when he had taken the sample from the contraband article seized. Further, there is no evidence forthcoming as to who was in possession of the contraband articles after its seizure till it was produced before PW5 as well. So under the circumstances, it cannot be said that the Crl.A.No.1011 of 2004 11 prosecution has proved beyond reasonable doubt that articles reached court in a tamper proof condition so as to link chemical analysis report with the sample said to have been seized from the possession of the accused as has been stated in Krishnan v. State (2015 (1) KHC 822). So under the circumstances, it cannot be said that the prosecution has proved the case against the accused beyond reasonable doubt and the finding arrived at by the court below that the prosecution has proved the case against the accused beyond reasonable doubt and consequential conviction entered by the court below against the accused for the offence alleged are unsustainable in law and the same is liable to be set aside. So the appellants are entitled to get acquittal of the charge levelled against them giving them the benefit of doubt. In view of the finding that the appellants are entitled to get acquittal, the sentence imposed is not proper and the same is also set aside.
In the result, the appellants succeed and the appeal is allowed. The order of conviction and sentence passed by the court below against the appellants under section 55(a) of the Abkari Act are hereby set aside. The appellants are acquitted of the charge levelled against them giving them the benefit of Crl.A.No.1011 of 2004 12 doubt. They are set at liberty. The bail bond executed by them will stand cancelled. The court below is directed to refund the fine, if any, remitted by them on making necessary application for that purpose Office is directed to communicate a copy of this judgment to the concerned court immediately.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge