Madras High Court
Sanjeevi vs State By on 3 January, 2019
Author: S.Vimala
Bench: S.Vimala
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 03.01.2019
CORAM
THE HONOURABLE DR. JUSTICE S.VIMALA
CRL. A. NO. 53 OF 2006
Sanjeevi .. Appellant
- Vs -
State by
Inspector of Police
Prohibition Enforcement Wing
Anna Nagar, Chennai 600 040. .. Respondent
Criminal Appeal filed u/s 374 Cr.P.C. against the order dated 6.1.2006,
passed by the learned Addl. Sessions Judge, Chennai @ Poonamallee in S.C.
No.335 of 2005.
For Appellant : Mr.R.C.Paul Kanagaraj
For Respondent : Ms. T.P.Savitha, GA (Crl. Side)
Reserved on Pronounced on
27.10.2018 03.01.2019
JUDGMENT
The appellant was tried for the offence u/s 4 (1) (aaa), 4 (1-A) of TNP Act and u/s 468, 471 and 476 IPC in S.C. No.335/05 on the file of the Addl. Sessions Judge, Chennai @ Poonamallee.
http://www.judis.nic.in On being found guilty, the appellant was 2 convicted and sentenced as under :-
U/s 4 (1) (aaa) of TNP Convicted and sentenced to rigorous Act imprisonment for a period of two years and directed to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for a period of two months.
U/s 4 (1-A) of TNP Act Convicted and sentenced to rigorous imprisonment for a period of four years and to pay a fine of Rs.2,000/-, in default to undergo rigorous imprisonment for a period of three months.
Aggrieved by the said conviction and sentence, the present appeal has been filed by the appellant.
2. The facts, in brief, is stated hereunder for better appreciation of the matter :-
On 11.5.2003, at about 10.00 a.m., when P.W.8 along with his team was conducting routine check up of the vehicles, the Maruthi car, bearing Regn. No.CAV 8426, was intercepted and on a search, 10 litres of country arrack in a white plastic can, 2000 arrack packets of Karnataka origin witn 100 ml., liquor in each packet, Old Adventurer 750 ml., Rum labels in 20 bundles numbering 250 per bundle, Old Adventurer 750 ml., Rum labels 46 sheets containing 12 label in each sheet, Super Jack 750 ml., XXX Rum Label 16 bundles containing 250 labels in each bundle were seized along with a Nokia cell phone, which was used by the accused. Since the above items were illicit items, the accused was arrested and http://www.judis.nic.in 3 charged u/s 4 (1) (aaa) and 4 (1-A) of the TNP Act and also u/s 468, 471 and 476 IPC.
3. P.W.8, the investigating officer, seized all the above items and while destroying all the illicit items as per procedure contemplated, before such destruction, collected samples from the above. 5 packets of arrack out of the 2000 packets, which was sealed in two packets and 500 ml., of arrack in two bottles from the white container were taken as samples for the purpose of forensic analysis under the mahazar, Ex.P-30. The rest of the arrack were destroyed under destruction mahazar, Ex.P-31. Thereafter, the accused, along with the samples collected, was brought to the police station and a case in Crime No.37/2003 was registered and FIR, Ex.P-32 was prepared. P.W.8 also prepared observation mahazar, Ex.P-34, which was attested by P.W.4. Ex.P-33, rough sketch was also prepared by P.W.8. Statements were recorded from P.W.2 and the other members of the search party. The accused was remanded to judicial custody on 12.5.03. The case properties were sent to the court. The samples collected, viz., the two packets of arrack, containing the 5 sachets, viz., M.O.s 1 and 2 and the two 500 ml., bottles of arrack, viz., M.O.s 3 and 4 were sent for forensic analysis.
4. After forensic analysis, report, Exs.P-3 and P-4 were received. The http://www.judis.nic.in 4 accused was taken into custody on 12.5.03 and on examination, the accused came forward and gave a voluntary confession statement, which was recorded in the presence of P.W.3 and another. The admissible portion of the said confession is Ex.P-35. Based on the said confession, the accused took the investigating team to a place in Avadi and produced IMFL labels of various descriptions, Exs.P-10 series and P-18 series. M.O.13, a wooden device used to affix labels on the bottles was also seized under a mahazar, Ex.P-36. For the purpose of comparison, original labels were required and, therefore, P.W.2, the Sub Inspector of Police was deputed to Karnataka. Accordingly, P.W.2 visited Bangalore and brought sample labels and submitted the same along with his special report, Ex.P-37.
5. On analysis of the labels, P.W.5, forensic analyst, confirming the fakeness of the labels and accordingly issued Ex.P-25. P.W.7, was examined by the investigating officer and expert opinion, Ex.P-29 was obtained regarding the poisonous nature of the atropine mixture.
6. On the transfer of P.W.8, the investigation was taken over by P.W.9 and, thereafter, by P.W.10, who after verifying the investigation done by his predecessors and after examination of the witnesses, submitted the final report against the accused charging him for the offences u/s 4 (1) (aaa), 4 (1-A) of TNP http://www.judis.nic.in 5 Act and u/s 468, 471 and 476 IPC.
7. The prosecution, in order to sustain their case, examined P.W.s 1 to 10 and marked Ex.P-1 to P-39 and marked M.O.s 1 to 16. The accused was, thereafter, questioned under Section 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances made out against him in the evidence tendered by the prosecution witnesses and he denied it as false. Neither any witness was examined nor any documents were marked on the side of the accused.
8. The trial court, on a consideration of oral and documentary evidence and other materials, found the accused/appellant herein guilty of the offence u/s 4 (1) (aaa) and 4 (1-A) of TNP Act and sentenced him as above. Aggrieved by the above conviction and sentence, the present appeal has been preferred by the appellant.
9. It is the contention of the learned counsel appearing for the appellant that the trial court has not considered the materials placed before it in proper perspective and, therefore, the conviction and sentence recorded by the trial court deserves to be interfered with. It is the contention of the learned counsel for the appellant that the seizure, allegedly said to have been made from the accused has not been proved. P.W.s 4 and 6, who are said to be the witnesses, http://www.judis.nic.in 6 who attested the seizure mahazar have turned hostile. More particularly, they have denied the suggestions put forth by the prosecution and have also denied their knowledge about the accused. It is further pointed out that P.W.3, who is said to have signed in a mahazar has categorically deposed that he was called upon by the police under the pretext of the police station being vacated and that he does not know the accused and also does not know how many signatures he has affixed. P.W.3 has also deposed that he does not know about the accused. It is the further contention of the learned counsel for the appellant that P.W.2, when confronted in cross examination about the details regarding the section of offence and crime number in the mahazar said to have been prepared on 11.5.03 at about 11.15 a.m., has categorically deposed that the same does not find place in the mahazar prepared by the prosecution. This discrepancy, coupled with the evidence of P.W.s 3, 4 and 6 relating to the seizure and preparation of mahazar pertaining to the accused, literally throws the case of the prosecution and, the conviction and sentence recorded by the trial court is wholly erroneous and not based on evidence on record and, therefore, deserves to be interfered with.
10. Per contra, learned Government Advocate (Crl. Side) appearing for the respondent submits that not only the illicit IMFL arrack was seized from the accused, but the forensic analysis and the reports thereof, conclusively show that the illicit arrack contain dangerous material in the form of atropine, which is not http://www.judis.nic.in 7 fit for human consumption and, therefore, the accused having been found by the trial court to have transported the same, on the materials submitted by the prosecution, has rightly been convicted and sentenced and, therefore, no interference is warranted with the findings recorded by the trial court.
11. This Court bestowed its best attention to the materials available on record as also the evidence to which this Court's attention was drawn by the learned counsel appearing on either side.
12. The materials seized by the investigating officer and the dangerous nature of the substances seized, more specifically, the presence of atropine in the seized materials is not questioned before this Court by the appellant. The crux of the appellant's case is that the seizure has not been made from the appellant and has not been proved and, therefore, fastening the seizure of the commodity with the appellant cannot stand the test of legal scrutiny.
13. P.W.s 4 and 6, who have been stated to be the witnesses, who affixed their signatures in the seizure mahazar have turned hostile. Even further, P.W.s 4 and 6 have deposed that they do not know the appellant and have not seen the appellant. No evidence worth mentioning has been elicited by the prosecution from the above two witnesses to connect the seized materials to the appellant. http://www.judis.nic.in 8 P.W.3, the witness, who has been examined to prove that he was a witness to the seizure has deposed that he does not know the accused and that the police obtained his signature at the police station on the pretext that the police station is being vacated. P.W.3 has further deposed that he does not know the accused, though he admits the signature in the seizure mahazar, Ex.P-6.
14. From the above, it is categorically clear that the first and foremost link regarding connecting the appellant with the seized material has not been proved by the prosecution. In fact, the prosecution has miserably failed to show any connection between the seized material and the accused.
15. The evidence of P.W.2, the Sub Inspector of Police, who was in the team that seized the liquor, in cross examination, has admitted that the mahazar prepared at 11.15 a.m., on 11.5.03, for the seizure does not reveal the police station which prepared the same and also does not reveal the crime number or the section of offence, but only the signature of the witnesses. This Court is at a loss to understand as to how a mahazar can be prepared without the name of the police station, which is a basic necessity. The non-mentioning of the name of the police station creates a grave suspicion on the mahazar itself and, therefore, no sanctity can be attached to the said mahazar.
http://www.judis.nic.in 9
16. In the absence of any connection between the materials seized and the accused and non mentioning of the name of the police station which effected the seizure, fastening the liability on the appellant with the crime cannot be sustained. Mere proving that the labels are fake and that the materials, which were sent for forensic analysis revealed the nature of the items and the presence of atropine would not be sufficient to fix the liability on the appellant.
17. The shortfalls in the evidence, not only being material, but also strikes at the root of the prosecution case, this Court is left with no other alternative, but the set aside the conviction and sentence awarded to the appellant.
18. In the result, the conviction and sentence imposed on the appellant by the trial court is set aside and the appellant is acquitted of the charge for which he has been convicted and sentenced. It is reported that the appellant is on bail. Bail bonds furnished by the appellant/accused shall stand discharged and the appellant/accused is directed to be set at liberty forthwith, unless his presence/custody is required in connection with any other case.
03.01.2019 Index : Yes / No Internet : Yes / No GLN http://www.judis.nic.in 10 DR. S.VIMALA, J.
GLN To
1. The Addl. Sessions Judge Chennai @ Poonamallee.
2. The Public Prosecutor High Court, Madras.
PRE-DELIVERY JUDGMENT IN CRL. A. NO. 53 OF 2006 Pronounced on 03.01.2019 http://www.judis.nic.in