Kerala High Court
Pananthanath Joseph vs State Of Kerala(S.H.O on 10 October, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 10TH DAY OF OCTOBER 2012/18TH ASWINA 1934
CRL.A.No. 885 of 2005
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[AGAINST the JUDGMENT IN SC NO.1066/2004 OF THE COURT OF SESSIONS,
THALASSERY]
APPELLANT(S):
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PANANTHANATH JOSEPH, S/O.JOSEPH,
AGED 64 YEARS, AGRICULTURIST, THABOOR
ALAKODE AMSOM, ARANGAM, KANNUR DISTRICT.
BY ADV. SRI.P.P.RAMACHANDRAN
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA(S.H.O., IRITTY POLICE STATION, KANNUR)
REP. BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, COCHIN-31.
BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No. 885 of 2005
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Dated this the 10th day of October, 2012
J U D G M E N T
The judgment dated 29.4.2005 in S.C.No.1066 of 2004 of the court of Sessions Judge, Thalassery is under challenge in this appeal at the instance of the sole accused therein as he is convicted and sentenced for the offence under Section 58 of the Kerala Abkari Act.
2. The prosecution case is that at about 5.10 p.m. on 17.9.2001 at Iritty in front of Deepthi Bakery of Iritty bus stand, the accused was found in possession of 9 bottles of 750 ml. each Indian Made Foreign Liquor, which was transported from Karnataka state and thus, the accused has committed the offence punishable under Section 58 of the Kerala Abkari Act. Accordingly, Crime No.311/2001 was registered in the Iritty Police Station for the offence punishable under Section 58 of the Kerala Abkari Act. On completing the investigation, a report was filed in the Judicial First Crl.A.No.885 of 2005 :-2-:
Class Magistrate Court, Mattannur and the learned Magistrate, by order dated 6.2.2004 in C.P.No.150 of 2003 committed the case to the Sessions Court wherein S.C.No.1066 of 2004 was instituted. When the accused appeared, after hearing the prosecution and the defence, a formal charge was framed against the accused for the offence punishable under Section 58 of the Kerala Abkari Act and he pleaded not guilty, when the said charge was read over and explained to him. Consequently, the prosecution adduced its evidence by examining Pws.1 to 3 and producing Exts.P1 to P5. MO1 series of 8 plastic bottles of 750 ml. Colombia brandy were identified and marked, on the side of the prosecution. The trial court finally found that the prosecution has succeeded in establishing the charges levelled against the accused and accordingly, he is found guilty under Section 58 of the Kerala Abkari Act and convicted thereunder and on such conviction, he is sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1 lakh and in default, he is sentenced to undergo simple imprisonment for six more months. Thus, challenging Crl.A.No.885 of 2005 :-3-:
the above finding, order of conviction and sentence, the accused preferred the present appeal.
3. I have heard Sri.P.P.Ramachandran, learned counsel for the appellant and Smt.Laliza, the learned Public Prosecutor.
4. As I indicated earlier, only three witnesses are examined by the prosecution in order to buttress its allegation against the accused. Among the above three, PW1 is an independent witness who is an attestor to Ext.P1 seizure mahazar. PW3 is the then Sub Inspector of Police, Iritty Police Station, who detected the offence.
PW2 is also the S.I. Of Police, who undertook the investigation.
5. When PW1 was examined, he had deposed in terms of the prosecution allegation and according to him, he saw people gathered at the relevant point of time and on enquiry, he realised that a person was found in possession of brandy and he had also deposed before the court that he witnessd the seizure of the contraband article from the possession of the accused. Thus, Ext.P1 mahazar was marked through him.
Crl.A.No.885 of 2005
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6. According to PW3/the detecting officer, he reached the place of occurrence on getting information regarding the sales of IMFL and accordingly, when he arrived, he found the accused holding a bigshopper and on questioning, according to PW3, the accused was pathetic and hence, he proceeded to inspect the bigshopper and on such inspection, found nine plastic bottles, which contain IMFL and the bottles were pasted with the names of the brandy as Colombia Brandy. When PW3 was examined, he had deposed that he had prepared Ext.P1 seizure mahazar by which the contraband articles were taken from the possession of the accused. It is the further case of PW3 that thereafter, himself and party returned to the Police Station along with the accused and the contraband article and on reaching the station, he had prepared Ext.P2 F.I.R. Ext.P3 arrest memo of the accused was marked through PW3. He had also deposed before the court that samples were sent for chemical analysis as per Ext.P4 forwarding note and thus obtained chemical analysis report which is marked through PW3 as Ext.P5. MO1 series are also identified and Crl.A.No.885 of 2005 :-5-:
marked through PW3. It is on the basis of the above evidence, the learned Judge convicted the appellant.
7. Learned counsel for the appellant vehemently submitted that the findings of the court below are absolutely incorrect and illegal. Regarding the seizure of the contraband article, there is no acceptable and convincing evidence since, according to the learned counsel, it was PW1, who identified the contraband article as IMFL by tasting and smelling the same after opening a bottle. It is the further case of the counsel that PW3, the detecting officer has no such case that the smelling and tasting of the contents of the bottle were done by PW1. So regarding the seizure, according to the learned counsel, there is no convincing evidence. It is also the contention of the learned counsel that the properties including the samples were not produced before the court in time and there is no guarantee that Ext.P5 chemical analysis report is reflecting the IMFL which is allegedly recovered from the possession of the accused since there is no evidence as to who were the custodians of the contraband article as Crl.A.No.885 of 2005 :-6-:
well as the samples till the same produced before the court. So, on the strength of the decision of this Court reported in Ravi v. State of Kerala [2011(3) KLT 353], the counsel submitted that the prosecution has miserably failed to prove that the appellant was found in possession of the contraband article.
8. On the other hand, the learned Public Prosecutor strenuously submitted that the samples were sent to chemical analysis on the basis of Ext.P4 forwarding note prepared and forwarded by PW3 and Ext.P5 is on the basis of chemical analysis of the sample so reached in the chemical lab and therefore, the conviction and sentence imposed against the appellant are proper and no interference is warranted.
9. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor and I have perused the judgment as well as the materials available on record.
10. In the light of the contentions advanced by the learned counsel for the appellant and the learned Public Prosecutor, the Crl.A.No.885 of 2005 :-7-:
question to be considered is whether the trial court is justified in its finding and convicting the appellant.
11. As I mentioned earlier, only three witnesses are examined by the prosecution in order to buttress its allegation against the accused and the other evidence are the documents Ext.P1 to P5. In the chief examination of Pws.1 to 3, they have stated that certain contraband articles were seized form the possession of the appellant/accused which are IMFL bearing brand name as 'Colombia Brandy'. Neither PW1 or PW2 has got a case that the so-called contraband articles are not meant for sale in the State of Kerala. Though PW3 has stated in his chief examination that as he doubted that it was brought from Karnataka, he has decided to arrest the accused, no evidence or material is produced before the court to show that the IMFL allegedly recovered from the possession of the accused is mean for sale in Karanataka. Though I have repeatedly gone through Ext.P1mahazar, there is no whisper to the effect that any label or bill is affixed on the bottles to ascertain that the contents of that Crl.A.No.885 of 2005 :-8-:
bottles are meant for sale in Karnataka. So the prosecution has miserably failed to prove that what allegedly recovered from the possession of the appellant is imported IMFL from outer State. In the decision of this Court reported in Narayanan Nair v. State of Kerala [2011(3) KLT 722], it was held that even the mere proof of "transport" "import" or "possession" of liquor doest not constitute any offence under S.55(a) of the Act. "Possession", "transport" or "import" of liquor becomes an offence, only if a person is proved to have committed any of such acts, in contravention of the provision of the Act or Rules under which, such act is prohibited. A person cannot be convicted on the mere finding that he was transporting, importing or was in possession of liquor., Prosecution must prove that such acts are done in contravention of Act, Rules or Order. In the light of the above decision and in view of the evidence of Pws.2 and 3, according to me, the prosecution has miserably failed to establish the essential ingredients of Section 58 of the Abkari Act.
12. Learned counsel for the appellant, on the strength of the Crl.A.No.885 of 2005 :-9-:
decision of this Court reported in Ravi v. State of Kerala [2011(3) KLTY 353], submitted that the prosecution has 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 fool proof condition. I find some force in the above submission of the learned counsel. According to PW3, on reaching the Police Station after the seizure, he had entrusted the contraband article as well as the sample with the station writer. He has no claim that he had produced the contraband article as well as the samples in the court. No further witness was examined by the prosecution to prove that the samples as well as the contraband articles were produced before the court. There is no evidence to show that the samples as well as the contraband articles were kept in safe custody till the same are produced before the court. In this juncture, it is relevant to note that though PW3 has claimed that he had pasted label on the sample as well as the other bottles at the time of the trial, no such labels were found during the trial. As the IMFL are not prohibitted in the State of Kerala and the Crl.A.No.885 of 2005 :-10-:
sales of the same have taken place frequently, it is incumbent upon the prosecution to prove that what produced before the court is the contraband article recovered from the possession of the appellant. To prove those facts, there is no legal evidence. The fact that the label pasted on the bottles that contained the brand name 'Colombia Brandy' is not sufficient to hold that the same was recovered from the possession of the appellant, especially when the prosecution has no case that such brand items are not available in the Kerala State. So, from the available evidence of the prosecution, there is no guarantee that what reached in the hands of the chemical examiners is the samples representing the material objects/contraband articles allegedly recovered from the possession of the appellant/accused. Therefore, the prosecution has miserably failed to prove that it was the sample taken from the contraband liquor seized from the accused reached in the hands of the chemical examiner as held by this Court in the above decision.
13. In the light of the above facts and circumstances and the Crl.A.No.885 of 2005 :-11-:
evidence and materials referred to above, I am of the view that the prosecution has miserably failed to prove its allegation against the appellant beyond reasonable doubt and therefore, I am unable to concur the finding and the conviction recorded by the trial court against the accused. Thus, according to me, the appellant is entitled to get benefit of doubt and consequent acquittal. Thus, the conviction recorded by the trial court is set aside.
In the result, this appeal is allowed setting aside the judgment dated 29.4.2005 in S.C.No.1066 of 2004 of the court of Addl.Sessions Judge, Adhoc-II, Thalassery acquitting of all the charges levelled against the appellant and the bail bond, if any, executed by the accused will stand cancelled and he is set at liberty. The appeal is allowed accordingly.
V.K.MOHANAN, Judge MBS/ Crl.A.No.885 of 2005 :-12-:
V.K.MOHANAN, J.
CRL.A.No. 434 OF 2003 Crl.A.No.885 of 2005 :-13-:
JUDGMENT Dated:11.11.2011