Kerala High Court
Thankarajan vs State Of Kerala on 28 October, 2016
Author: B.Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938
CRL.A.No. 469 of 2009 ( )
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SC 825/2002 of ADDL.DISTRICT COURT (ADHOC)-IV, TRIVANDRUM
IN CP 239/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT,
KATTAKADA
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APPELLANT(S)/ACCUSED :-
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THANKARAJAN, S/O.KUTTAN NADAR
MALLAVILA PUTHANVEEDU, MACHAYIL DESOM,,
MALAYINKEEZHU VILLAGE, NEYYATTINKARA.
BY ADVS.SRI.R.BINDU (SASTHAMANGALAM)
SRI.R.JAYAKRISHNAN
RESPONDENT(S)/COMPLAINANT :-
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
bp
B. KEMAL PASHA, J.
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Crl. Appeal No.469 of 2009
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Dated this the 28th day of October, 2016
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~ Appellant is the accused in SC No.825/2002 of the Additional Sessions Court, Adhoc-IV, Thiruvananthapuram, who stands convicted for the offence under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1 lakh, in default, to undergo rigorous imprisonment for six more months.
2. The prosecution case is that on 20.06.2000, the accused was found transporting 10 litres of arrack in a black plastic can through Malayam junction - Mookunnimala road, in contravention of the provisions of the Abkari Act. Crl.A.469/2009 : 2 :
3. The Excise Inspector of Kattakkada Excise Range had allegedly detected the offence. He seized the contraband through Ext.P1 mahazar. The accused was placed under arrest through Ext.P3 arrest memo. The Excise Inspector produced the contraband before court through Ext.P5 property list. He furnished the forwarding note, the copy of which is Ext.P6. PW5 Property Clerk of the Judicial First Class Magistrate's Court-I, Kattakkada had allegedly drawn a sample of 150 ml. from the contraband and forwarded the same for chemical analysis. On getting Ext.P7 certificate of chemical analysis, PW4 Excise Inspector, Kattakkada filed the final report.
4. On the side of the prosecution, PWs 1 to 5 were examined, Exts.P1 to P8 were marked, and MO1 was identified. No defence evidence was adduced. The court below found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted him thereunder, and sentenced him as aforesaid. Crl.A.469/2009 : 3 :
5. Heard learned counsel for the appellant and learned Senior Public Prosecutor.
6. According to the learned counsel for the appellant, there is no independent evidence to corroborate the versions of PW1. It has also been argued that the court below ought not to have relied on the solitary evidence of PW1 in the matter, especially when PW2 and PW3, who were cited as independent witnesses, have turned hostile to the prosecution. It has been further argued that the Excise Inspector, who had allegedly detected the offence and effected the seizure, had not chosen to draw any sample at the spot in the presence of the accused; whereas the contraband was belatedly produced before court and PW5 was made instrumental to draw the sample. According to the learned counsel for the appellant, therefore, Ext.P7 cannot be relied on.
7. It is true that the prosecution has not examined any other official witnesses, who were also present along Crl.A.469/2009 : 4 : with the Excise Inspector and PW1, during the seizure. The Excise Inspector, who had allegedly effected the seizure is no more. Therefore, in fact, the evidence regarding the incident available in this case is the solitary evidence of PW1, who had allegedly accompanied the Excise Inspector. When PW2 and PW3 have turned hostile to the prosecution, the prosecution ought to have examined at least one more excise official, who was also present in the raiding party, to prove the seizure and to corroborate the versions of PW1. As rightly pointed out by the learned counsel for the appellant, the solitary evidence of PW1 cannot be taken as gospel truth.
8. According to PW5, a sample of 150 ml. was drawn by him from the contraband. At the same time, there is absolutely nothing to see that there was any order from the learned Magistrate directing PW5 to perform such an act. Ext.P8 is the extract of the property register. It seems that on 22.06.2000, the can containing 10 litres of arrack Crl.A.469/2009 : 5 : was produced before court and the same was entered in the property register. On the same day itself, the contraband was handed over to the excise people for keeping it in their custody until further orders. It seems that some time thereafter the contraband was again produced, from which a sample was allegedly drawn and forwarded for chemical analysis. PW5 has not stated the date on which the sample was drawn. As per the endorsement in Ext.P8, the sample was received by the excise official for taking it to the laboratory on 06.07.2000 only. Had any sample been drawn on 20.06.2000, definitely the same would have been forwarded to the laboratory on that day itself. The sample had reached the laboratory on 06.07.2000 only as is evident from Ext.P7. Matters being so, it is not at all safe to rely on the contents of Ext.P7. Therefore, the conviction and sentence passed by the court below are not legally sustainable and the same are liable to be set aside.
In the result, this Criminal Appeal is allowed and the Crl.A.469/2009 : 6 : conviction and sentence passed by the court below as against the appellant are set aside. The appellant is acquitted.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/28/10 // True Copy // PA to Judge