Kerala High Court
Vinod Kumar.P.S vs The Sub Inspector Of Police on 17 September, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 21ST DAY OF OCTOBER 2013/29TH ASWINA, 1935
CRL.A.No. 1650 of 2003
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AGAINST THE ORDER/JUDGMENT IN SC 65/2000 of ADDL. SESSIONS COURT
(ADHOC), KALPETTA DATED 17-09-2003
APPELLANTS:ACCUSED 1 TO 5 :
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1. VINOD KUMAR.P.S., S/O.SANKARU,
PARAPPURATH HOUSE, EDAYOORKUNNU,
THRISSILERI AMSOM.
2. YOOSUF.C.H., S/O.MUHAMMED,
PALLICHAL HOUSE, EDAYOORKUNNU,
THRISSILERI AMSOM.
3. MAHESH.P.R., S/O.RAVEENDRAN,
PUTHEN VEEDU, KUTTAM, SOUTH KOORG.
4. BABURAJ.A.V. S/O.VARGHESE,
ARUVINKAL HOUSE, KILOIKOLLI, THRISSILERI.
5. JIJI MON GEORGE, S/O.GEORGE,
THRAVINAKKAT ESTATE OADI, KUTTAM SOUTH,
SOUTH KOORG VILLAGE.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS:COMPLAINANT & STATE :
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1. THE SUB INSPECTOR OF POLICE,
MANANTHAVADY.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR MR.ABDUL KHADIR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No.1650 of 2003
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Dated this the 21st day of October, 2013
JUDGMENT
The appellants are accused Nos.1 to 5 in S.C.No.65 of 2000 and the above appeal is preferred challenging the judgment dated 17/9/2003 of the court of the Additional Sessions Judge (Adhoc), Kalpetta by which the learned Judge convicted all the 5 accused for the offence under Section 55(a) of the Abkari Act.
2. When the above appeal taken for consideration Mr.T.G.Rajendran, the learned counsel for the appellant submitted that the 5th appellant herein, who is the 5th accused in the above Sessions case subsequently filed jail Appeal dated 25/10/2003 and this Court by judgment dated 19/8/2004 disposed the above appeal confirming the conviction recorded against the accused and the sentence reduced to the period for which he had already undergone and therefore, though the appeal is filed by all the 5 accused together, the appeal with respect to the 5th appellant can be dismissed in view of the Crl.A.No.1650 of 2003 :-2-:
judgment dated 19/8/2004 in Crl.A.No.1901 of 2003. Recording the above submission the appeal as far as the 5th appellant/5th accused concerned is dismissed and I am inclined to proceed with the appeal with respect to appellants 1 to 4.
3. The prosecution case is that, on 11/5/1998 at 2.30 A.M., PWs.1 and 2 and the police party while they were on night patrol noticed the accused transporting 3811 packets of 100 ml. each containing Karnataka arrack in 8 gunny bags in a jeep bearing registration No.KL.10 C-9610 through the public road situated at Kampippalam and thus, according to the prosecution, the accused five in numbers have committed the offence punishable under Section 55(a) of the Abkari Act.
4. On the above allegation, Crime No.154 of 1998 was registered in the Mananthavady Police Station for the said offence and on completing the investigation, a formal report was filed in the Judicial First Class Magistrate Court, Mananthavady wherein C.P.No.31 of 1999 was instituted and the learned Magistrate by his order dated 22/12/1999 committed the case to the Sessions Court pursuant to which Crl.A.No.1650 of 2003 :-3-:
S.C.No.65 of 2000 was instituted therein and subsequently made over to the present trial court for disposal.
5. Accused Nos.1 to 4 appeared on summons and accused No.5 was produced. Thus, a formal charge for the offence punishable under Section 55(a) of the Abkari Act was framed against the accused and when the said charge read over and explained to them, they denied the same and pleaded not guilty, which resulted in the further trial of the case, during which PWs.1 to 7 were examined and Exts.P1 to P6 were produced from the side of the prosecution and Mos.1 and 2 were also identified as material objects. No evidence was adduced from the side of the defence. The trial court finally found that the prosecution has succeeded in establishing that the accused were found transporting 3811 packets of Karnataka arrack of 100 ml. each in 8 gunny bags in a jeep as alleged by the prosecution and accordingly all of them are found guilty and consequently they are convicted for the offence under Section 55(a) of the Abkari Act. On such conviction, the accused are sentenced to undergo rigorous Crl.A.No.1650 of 2003 :-4-:
imprisonment for three years each and fine of `1,00,000/- each, in default of payment of fine, each of them were directed to undergo simple imprisonment for one year each. Set off was allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal.
6. I have heard Sri.T.G.Rajendran, the learned counsel for the appellant and Sri.Abdul Khadir, the learned Public Prosecutor for the State.
7. The prosecution case reveals mainly through the evidence of PW.1, the then Circle Inspector of Police, Mananthavady Police Station, who detected the crime.
According to PW.1, when himself and party were on night patrol duty in the early morning of 11/5/1998 exactly at 2.30 A.M., they found a jeep bearing registration No.KL.10C-9610 coming from the Mananthavady side and though they gave hand signal to stop the vehicle, ignoring such signal the vehicle proceeded further and smelling some illegal activities, according to PW.1, himself and party in the police jeep chased the said jeep and at a point namely, Kampippalam at Crl.A.No.1650 of 2003 :-5-:
Thalappuzha they overtaken the said jeep and intercepted and on inspection of the jeep, they saw the first accused in the driver seat and accused No.2 on the left front seat and accused Nos.3 to 5 in the rear seat of the jeep. On further inspection of the jeep by lighting torch they have seen 8 gunny bags kept inside the jeep and on interrogation of the persons found in the jeep and on verification of the contents of the gunny bags, the police party realised that the same are Karnataka made arrack and altogether in 8 gunny bags there were 3811 plastic packets each having a capacity of 100 ml. According to PW.1, all the persons found in the jeep were arrested and contraband articles were seized and thereafter on completing the proceedings of seizure, himself and party returned to the Mananthavady Police Station and thereafter registered the crime. Thus, when PW.1 was examined, Ext.P1 seizure mahazar and Ext.P2 F.I.R. in Crime No.154 of 1998 of Mananthavady Police Station were marked through him. He had also identified MO.1-eight gunny bags and MO.2 empty plastic packets. PW.2 was also the then S.I. of Police, Crl.A.No.1650 of 2003 :-6-:
Mananthavady Police Station, who accompanied PW.1 and when he was examined he had also deposed in tune with the deposition of PW.1. PW.3 is an independent witness, who is an attestor to Ext.P1 seizure mahazar. PWs.4 and 5 respectively are attestors to Exts.P3 and P4 scene mahazars. Ext.P3 scene mahazar is with respect to the place at which PW.1 and party gave a hand signal to stop the jeep, whereas Ext.P4 is the scene mahazar with respect to the actual place from where the seizure was effected. PW.6 is the then S.I. of Police, Thalapuzha Police Station, who had conducted part of the investigation from 11/5/1998. PW.7 is the then S.I. of Police, Mananthavady Police Station, who continued the investigation during which he prepared Ext.P5 forwarding note sent the same to the court and laid the charge. Ext.P6 is the chemical analysis report marked through PW.7. It is on the basis of the above evidence and materials, the trial court convicted all the five accused.
8. Sri.T.G.Rajendran, the learned counsel for the appellant, among the other contentions, it is strenuously Crl.A.No.1650 of 2003 :-7-:
submitted that, in the present case, there is no proper and legal sampling, which is an essential requirement as far as an Abkari offence is concerned and therefore the findings of the court below and the conviction and sentence recorded against the appellants are liable to be set aside. In order to substantiate the above contention, the learned counsel took me through Ext.P1 seizure mahazar, Ext.P5 forwarding note and submitted that, no reliance can be placed upon the above documents of the prosecution and the evidence of PWs.1 and 2 cannot be believed to show that Ext.P6 chemical analysis report is on the basis of the sample drawn from the contraband article said to have been possessed by the appellants and seized from him. Thus, according to the learned counsel, the judgment of the trial court is vitiated and conviction and sentence imposed against the appellants are liable to be set aside.
9. Sri.Abdul Khadir, the learned Public Prosecutor per contra submitted that, on a conjoined reading of deposition of PW1 and Exts.P1 and P5 would show that, the police seized Crl.A.No.1650 of 2003 :-8-:
Karnataka made arrack from the possession of the accused on 11/5/1998 from which PW.1 drawn the sample which safely reached the hands of the chemical analysts, which is resulted in Ext.P6 report and therefore the trial court is perfectly correct and legal in its finding and therefore no interference is warranted.
10. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the evidence and materials on record.
11. In the light of the rival contentions and evidence and materials on record, the question to be considered is, whether the prosecution has succeeded in establishing that the accused were found in possession of Karnataka made arrack on 11/5/1998 as alleged by the prosecution and whether the trial court is justified in its finding and convicting and sentencing the appellants for the offence under Section 55(a) of the Abkari Act. A Division Bench of this Court in the decision reported in Ravi Vs. State of Kerala [2011(3) KLT 353] has Crl.A.No.1650 of 2003 :-9-:
held that the prosecution has a duty to prove that it was the sample taken from the contraband liquor allegedly possessed by the accused, which had reached the hands of chemical examiner in a fool proof condition. Considering the contention advanced by the learned counsel for the appellant in the present case also the question to be considered is that, whether the prosecution has succeeded in proving that the sample allegedly drawn from the contraband article which was said to have been found in possession of the accused reached the hands of the chemical examiner in a fool proof manner. In the present case, to discharge the above task of the prosecution, they have mainly relied upon the evidence of PW.1, the detecting officer as well as Ext.P1 seizure mahazar and other connected documents. Though I have repeatedly gone through Ext.P1 seizure mahazar, there is no whisper in the body of the mahazar as to what are the steps taken by PW.1 to draw a proper sample from the contraband article allegedly possessed by the accused. In Ext.P1 what PW.1 has recorded is the description of contents of 8 gunny bags and Crl.A.No.1650 of 2003 :-10-:
about the description of the vehicle which allegedly seized. Towards the bottom of the body of Ext.P1 mahazar, there is a schedule, which is the repetition of description of the contents of 8 gunny bags. For example, the first item to the above schedule, what mentioned is 5 gunny bags each containing 500 packets of Karnataka made arrack each having the capacity of 100 ml. Item Nos.1 to 4 is thus mentioned about the gunny bags. Item No.5 is the description with respect to the vehicle in question. In item No.6 it is recorded:-
"Item No.1 4
100 ml.
...."
Item No.6 purported to mention about the drawing of sample. Finally it is recorded therein that:-
"
-
".
Except the above, no details given as to how the Crl.A.No.1650 of 2003 :-11-:
samples were drawn, the safety measures adopted to get a clear result from such sampling and also about the preventive measures against the tampering the samples, etc., which are expected to mention in the main body of the seizure mahazar. No such details are mentioned in the schedule as well.
12. In the light of the submission made by the learned Public Prosecutor, I have anxiously considered the deposition of PW.1. In the chief-examination what he had stated is:
" 3 packets 8 sample- . 3 packets 8 8 seal . ...................
sample bottles-
sticker-
."
But absolutely there is no mention about the safety and preventive measures adopted by him to prevent the tampering of the samples and to keep the samples in tact. In this juncture, it is relevant to note that, during the cross- Crl.A.No.1650 of 2003
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examination PW.1 has stated that, the properties were in his possession. But regarding those aspects, he has not stated anything and no acceptable and reliable evidence as to how he preserve the property without any room for tampering the same.
13. In this juncture, it is pertinent to note that, though the alleged seizure was effected on 11/5/1998, as found by the learned Sessions Judge, the properties were produced before the court only on 13/5/1998 no explanation is forthcoming for the delay even though it is only 2 days. In the absence of any cogent evidence regarding proper sampling and sending and particularly when PW.1 failed to depose about the precaution method adopted by him to preserve the samples in tact and against tampering the same, till the production of the samples before the court, non-explanation of 2 days delay goes against the prosecution. It is equally important to note that, Ext.P5 forwarding note was prepared only on 20/6/1998. If actually the samples were drawn on 11/5/1998 and when Exts.P1 and P2 F.I.R. were produced before the court, the forwarding note Crl.A.No.1650 of 2003 :-13-:
would also have been submitted before the court on 11/5/1998 itself. In this juncture, it is also relevant to note that, though PW.1 claimed that he had produced the properties before the court on the date of production of accused itself, there is no contemporary document to that effect. Property list is not marked in the present case. On verification of the case records and in the light of the observation made by the learned Sessions Judge, it is seen that, the properties were produced only on 13/5/1998 and also there is no explanation for the delayed production of the material objects. No explanation is also forthcoming from PW.1 about the safety measures taken by him to preserve the material objects including the samples in tact. So, according to me, the contemporary document produced by the prosecution i.e., Exts.P1 and P5 and the non- marked property list and the evidence of PW.1 are not sufficient to inspire the confidence of this Court to hold that the sample, which allegedly drawn from the contraband article which claimed to have been seized from the possession of the accused, reached the hands of the chemical analysts safely and Crl.A.No.1650 of 2003 :-14-:
in a fool proof manner. So, according to me, the facts and circumstances and the evidence on record are not sufficient to withstand the text laid down by the Division Bench of this Court in the decision cited supra. So, according to me, the appellants/accused are entitled to get the benefit of doubt which the trial court miserably failed to extent in favour of the accused. Therefore, I am unable to concur the finding and the conviction recorded by the learned Judge of the trial court. Accordingly, the conviction recorded against the appellants/accused is set aside.
In the result, this appeal is allowed with respect to appellants 1 to 4 are concerned and set aside the judgment dated 17/9/2003 in S.C.No.65 of 2000 on the court of the Additional Sessions Judge (Adhoc), Kalpetta and the appellants 1 to 4, who are accused Nos.1 to 4 in the above Sessions Case are acquitted of all the charge levelled against them and the bail bonds, if any, executed by them are stand cancelled and they are set at liberty. The amounts, if any, deposited by the appellants at the time of the execution of the bail bonds, in Crl.A.No.1650 of 2003 :-15-:
terms of the order passed by this Court dated 01/10/2003 in Crl.M.Appln.No.10078 of 2003 shall returned to them forthwith on an application moved in this regard.
The above appeal is allowed accordingly.
V.K.MOHANAN, JUDGE skj True copy P.A. to Judge