Kerala High Court
M.K.Mahesh vs State Represented By The on 20 August, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938
CRL.A.No. 1439 of 2004 (C)
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AGAINST THE ORDER/JUDGMENT IN SC 253/2000 of THE ADDITIONAL SESSIONS
COURT-I (ADHOC), THALASSERY DATED 20-08-2004
APPELLANT(S)/ACCUSED::
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M.K.MAHESH, S/O. NARAYANAN,
CHERUTHAZHAM AMSOM, MODOMKULAM CHAKLIYA COLONY,, KANNUR
DISTRICT.
BY ADVS.SRI.M.SASINDRAN
SRI.M.B.PRAJITH
RESPONDENT(S)/COMPLAINANT::
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STATE REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY ADV.SANTHOSH PETER, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-10-2016,
THE COURT ON 21.12.2016 DELIVERED THE FOLLOWING:
"CR"
A.M.BABU, J.
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Crl.A.NO.1439 OF 2004
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Dated 21st day of December, 2016
JUDGMENT
Appeal by the accused. He was convicted under Sec.55 (a) of the Abkari Act. He was sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/-. He shall undergo rigorous imprisonment for one month if fine is defaulted.
2. The prosecution case is this: The accused possessed 2= litres of arrack. He carried arrack in a bottle of 1= litres capacity and in another bottle of the capacity of one litre. The Sub Inspector of Payangadi police station detected the offence. He was on patrol duty at that time. He found the accused holding a bag. The bag contained the bottles containing arrack. The detection of the offence was at 3.30 p.m on 26.4.1999.
3. PWs 1 to 6 were examined on prosecution side. Exts P1 to P5 and MOs 1 to 3 were marked. Ext D1 was marked on the defence side.
4. Heard the learned counsel for the appellant/accused. Heard the learned Public Prosecutor too.
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5. Possession of 2 = litres of arrack is the charge against the accused. PW1 detected the offence. His police team on patrol duty consisted of PW5, a police constable. PWs 1 and 5 spoke to the incident. PWs 2 to 4 are independent witnesses. They did not support the prosecution. PW6 conducted the investigation. PW1 filed the charge-sheet.
6. If the prosecution version is true, the accused should have been charged under Sec.8 of the Akari Act.
7. The evidence of PWs 1 and 5 go as under: They were on law and order patrol duty on 26.4.1999. They reached the place of occurrence at 3.30 p.m. They saw the accused there. He carried a bag. He got perplexed. This caused suspicion. The police team went near him. PW1 inspected the bag. It contained a 1= litres bottle and a one litre bottle. PW1 arrested the accused. 180 ml of arrack from each bottle was taken as samples. The sample bottles were sealed. Labelled. PW1, the accused and the independent witnesses signed on the labels. The bottles and the bag were seized. Mos 1 and 2 are the bottles. MO3 is the bag. Ext P1 seizure mahazar was prepared by PW1. 3 Crl.A.NO.1439 OF 2004
8. The learned Additional Sessions Judge accepted the evidence of PWs 1 and 5. Their evidence appeared to be reliable to the learned Judge. But reliability of evidence is not equal to sufficiency. The evidence of PWs 1 and 5 proves arrest and seizure. Two bottles were seized from the accused. One sample from each bottle was taken. Each sample measured 180 ml. Taking 180 ml as samples from each bottle suggests that the bottles contained a liquid. The accused was arrested and MOs 1 to 3 were seized on the premise that the liquid was arrack. But the evidence does not show how did PW1 know that the liquid was arrack. Ext P1 seizure mahazar recites that the liquid was smelled and tasted by PW1 to ascertain it to be arrack. But what is written in the seizure mahazar is not substantive evidence. PW1 did not depose that the liquid was smelt or tasted to confirm it to be arrack. The evidence of PW 5 is also silent on this aspect. The Public Prosecutors cannot afford to miss to elicit such vital evidence when witnesses are in the box. The evidence of PWs 1 and 5 may not be unreliable. But it is quite insufficient.
9. True, Ext P5 chemical examination report is there. It certifies that ethyl alcohol was detected in both the samples. The 4 Crl.A.NO.1439 OF 2004 percent by volume of ethyl alcohol was 22.67 in sample I and 29.74 in sample II. I shall state later how far Ext P5 is useful to the prosecution.
10. The learned counsel for the accused urged two points vehemently. First, unexplained long delay in producing the material objects and samples before the Magistrate. The second, incompetence of PW6 to investigate the case. I shall consider those points.
11. The arrest and seizure were on 26.4.1999. The material objects and samples were produced before the Court of the Magistrate only on 6.5.1999. PW1 spoke so. I have ascertained from the list of property that the properties were produced before the Magistrate on 6.5.1999. The date of production of the properties shown in the impugned judgment as 5.6.1999 is a mistake for 6.5.1999. There was a delay of 10 days in producing the material objects and samples. The delay should be explained by the prosecution. The delay is fatal or not depends upon the explanation of the prosecution and other circumstances.
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12. PW1 gave an explanation. He said the property clerk in his police station was on leave. The explanation is quite unsatisfactory. If the property clerk was really on long leave, PW1 as the Station House Officer should have made alternative arrangements to ensure the prompt production of the properties in court. That was not done. Leaving it unexplained was better than the explanation offered by PW1. The learned Additional Sessions Judge also found that the explanation was unsatisfactory.
13. The learned Additional Sessions Judge convicted the accused despite the delay and despite the finding that the explanation was unsatisfactory. The learned Judge said that nothing was available to suggest that the material objects and samples were tampered with. It is not safe to conclude so. It is more so in this particular case.
14. The list of property was prepared on 26.4.1999. PW1 said that he entrusted the list of property and the properties with the writer in his police station. That means the properties were not in PW1's custody thereafter. The writer was not examined to prove that the properties were in his custody. The property clerk 6 Crl.A.NO.1439 OF 2004 was on leave. Then, in whose custody was kept the material objects and samples till 6.5.1999? Nobody knows.
15. The safe custody of the properties including samples till producing in court is a matter for the prosecution to establish. The prosecution alone can establish it. The prosecution was aware of the belated production of the properties in court. But, still, the prosecution did not do anything to prove the safe custody of the properties. This is a case where the independent witnesses went hostile to the prosecution. The court was called upon to decide the guilt of the accused on the evidence of an official witness who detected the alleged offence and another official witness who was a part of it. In such a case the court should be very very careful and cautious. It cannot be concluded that there was no tampering with the samples simply because the seals were not broken. The court should be satisfied that the samples taken at the time of detection of the offence did reach the court. Prompt production of the samples may ensure that. The delay in producing the samples should be properly explained. If it is not properly explained, the possibility of tampering with the samples cannot be ruled out. The benefit of doubt shall be given to the 7 Crl.A.NO.1439 OF 2004 accused. There are reported decisions on the point.
16. The decision in Narayani vs. Excise Inspector (2002 (3) KLT 725) holds that in the absence of any evidence to prove that the residue and sample were kept in proper custody till the date of producing the same in court the chances of tampering with the sample and residue cannot be ruled out. It is also held that in such a case the accused shall be given the benefit of doubt. Another decision on the same point is Ramankutty vs Excise Inspector (2013 (3) KHC 308)
17. It is seen that evidence is wanting to find in whose custody the material objects and samples were kept till the same were produced in court. The prosecution failed to establish that the samples were produced in court from proper custody. Therefore Ext P5 chemical examination report cannot be of no help to the prosecution. The accused is entitled to the benefit of doubt.
18. The investigation was conducted by PW6. He at that time was the Sub Inspector of Thaliparamba police station. Commission of the alleged offence was detected at a place within the limits of the Payangadi police station. PW6 said that he 8 Crl.A.NO.1439 OF 2004 conducted the investigation as instructed by the Circle Inspector of Police, Thaliparamba. The learned counsel for the accused submitted that PW6 had no authority to conduct the investigation. I shall consider the submission.
19. Sec.44 of the Abkari Act provides that any abkari officer holding an inquiry may summon any person to appear before himself to give evidence on such inquiry or to produce any document relevant thereto which may be in the possession or control of such person. Sec.45 of the Abkari Act provides that every summons issued under Sec.44 shall state whether the person summoned is required to give evidence or to produce the documents, or both, and shall require him to appear before the said officer at a stated time and place. Sec.46, Abkari Act, states that a person so summoned shall attend as required and shall answer all questions relating to such inquiry put to him by the said officer. It is also provided therein that the answers shall be reduced into writing and shall be signed by such officer. Secs 44 to 46 make it clear that abkari officers alone have powers to investigate into abkari offences. PW6 had powers to conduct the investigation only if he was an abkari officer. 'Abkari officer' as 9 Crl.A.NO.1439 OF 2004 defined in Sec.3 (2) of the Abkari Act means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sec.4 or 5. Under Sec.4 the government may, by notification in the gazette, appoint officers to perform the act and duties mentioned in Secs 40 to 53. In exercise of the powers confirmed by Sec.4, the Government of Kerala issued a notification, namely, G.O(P) No.69/96/TD dated 29.3.1996. The notification was published in the gazette as SRO No.321/96. As per the notification the Government of Kerala had appointed all police officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the central executive branch of the police department to be abkari officers under their respective jurisdiction for the purposes of Secs 31 to 35, 38,40 to 53 and 59 of the Abkari Act and to exercise all the powers and to discharge all the duties conferred and imposed on the abkari officers in the sections aforesaid (underscored to supply emphasis). The appointment of police officers as per the notification as abkari officers is only to exercise the powers within their respective jurisdiction. Needless to say that the 'jurisdiction' referred to in the notification is the territorial jurisdiction. 10 Crl.A.NO.1439 OF 2004
20. Secs 3 (2), 4 and 44 to 46 of the Abkari Act are very clear. The notification referred to above is also very clear. Everybody cannot conduct investigation into abkari offences. Only an abkari officer can conduct such an investigation. Certain police officers have been appointed abkari officers as per the notification. A police officer appointed an abkari officer as per the notification is not an abkari officer everywhere. He is an abkari officer only within his territorial jurisdiction. He is not an abkari officer outside such jurisdiction. PW6 as the Sub Inspector of Thaliparamba police station was not an abkari officer within the limits of the Payangadi police station. PW6 had no powers to exercise the jurisdiction of an abkari officer outside the limits of his police station. But he conducted investigation into an abkari offence allegedly committed within the limits of the Payangadi police station. He did it without jurisdiction. He did it as instructed by the Inspector of Police of Thaliparamba circle. The Circle Inspector had no jurisdiction to confer jurisdiction on PW6 to conduct the investigation. The Government of Kerala alone can appoint an abkari officer. The Circle Inspector himself should have conducted the investigation. The question is not whether 11 Crl.A.NO.1439 OF 2004 any prejudice was caused to the accused. The question is one touching the jurisdiction. The accused is entitled to get acquittal on this ground also.
21 There are reported decisions on this point too. The decisions are (i) Rajappan vs. State of Kerala (ILR 2016 (4) Kerala 174) (ii) Saji @ Kochumon vs. State of Kerala (2010 (3) KHC 259) and (iii) Narayanankutty vs. State of Kerala (2015 (1) KHC 702).
22. The appeal is allowed. The impugned judgment, conviction and sentence are set aside. The accused/appellant is acquitted. The bond executed by him stands discharged. He is set at liberty in this case.
A.M.BABU Judge sks/19.12.2016 12 Crl.A.NO.1439 OF 2004