Kerala High Court
Raju vs State Of Kerala on 10 December, 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
MONDAY, THE 10TH DAY OF DECEMBER 2012/19TH AGRAHAYANA 1934
CRL.A.No. 200 of 2007 ( )
-------------------------
SC.601/2003 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II,
KOLLAM, DTD.16.1.2007
APPELLANT(S)/ACCUSED:
--------------------
RAJU, S/O. PRABHAKARAN,
RAJESH BHAVANIL, KOZHICOD, MEKKU DESOM
AYANIVELIKKULANGARA VILLAGE, KARUNAGAPPALLY
KOLLAM DISTRICT.
BY ADV. SRI.B.MOHANLAL
RESPONDENT(S)/COMPLAINANT:
--------------------------
STATE OF KERALA, REPRESENTED BY
THE EXCISE RANGE INSPECTOR, KARUNAGAPPALLY
KOLLAM DISTRICT, THROUGH THE, PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-12-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
-------------------------------
Crl.A.No.200 of 2007
-------------------------------
Dated this the 10th day of December, 2012.
J U D G M E N T
This appeal is directed against the judgment dated 16.1.2007 in S.C.No.601 of 2003 of the court of Additional District and Sessions Judge (Ad hoc) II-Kollam, by which the learned Judge has found the appellant as guilty for the offence punishable under section 8(1) of the Abkari Act.
2. The prosecution case is that, the Preventive Officer of Excise Enforcement and Anti Narcotic Special Squad, Kollam, was on patrol duty on 13.7.1999 and at about 12 in the noon, the appellant/accused was seen at Muttethu Kadavu with a plastic can and on inspection, the same was found to contain 2 = ltrs. of arrack and thus the accused has committed the offence punishable under section 8(1) of the Abkari Act. Based upon the above allegation, crime and occurrence report was registered as 111/1999 in the 2 Crl.A.No.200 of 2007 Karunagappally Excise Range office, for the offence under section 8(1) of the Abkari Act. On completing the investigation, report was filed in the court of Judicial First Class Magistrate-Karunagappally, on the basis of which C.P.No.118/02 was instituted and the learned Magistrate subsequently by his order dated 18.12.2002, committed the case to the Sessions court, wherein the case was taken on file as S.C.No.601/03 and made over the same to the present trial court for disposal. Thus when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed for the offence punishable under section 8(2) of the Abkari Act and when the said charge read over and explained to the accused, he denied the same, which resulted in the further trial, during which, Pws.1 to 4 were examined and Exts.P1 to P4 were marked. M.Os.1 and 2 were also identified as material objects. No evidence either oral or documentary produced from the side of the defence. Finally, the trial court has 3 Crl.A.No.200 of 2007 found that the evidence let in shows that the liquor seized from the accused was potable in its form and content, and thus the accused was found in possession of arrack at the time and place as alleged by the prosecution and hence, the accused was further found guilty under section 8(1) of the Abkari Act. Accordingly, he is convicted thereunder and on such conviction, the appellant was sentenced to undergo rigorous imprisonment for a period of 2 years and to pay fine of `2 lakhs and in default, to undergo simple imprisonment for a further period of one year. Set off was allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal.
3. I have heard Sri.B.Mohan Lal learned counsel for the appellant and Smt.S.Hyma learned Public Prosecutor for the State.
4. The prosecution, in order to buttress its allegation, mainly depends upon the evidence of Pws.2, 3 and 4 and also the documents produced and marked. As 4 Crl.A.No.200 of 2007 per the prosecution allegation, the crime was detected by one Mr.Krishnankutti the then Preventive Officer of Excise Enforcement and Anti Narcotic Special Squad, Kollam. But the said Detecting Inspector is no more. It was under the above circumstance, the prosecution has relied upon the evidence of PW3, the then Preventive Officer who accompanied the Detecting Inspector at the time of detecting the crime. When PW3 was examined, he had deposed in terms of the prosecution and against the appellant. According to PW3, when he, alongwith the Detecting Officer were on patrol duty on 13.7.1999 reached at Muttethu Kadavu at about 12 noon and he had seen the accused with a plastic can. According to PW3, when himself and party reached at the place of occurrence, the accused was seen running away towards west but he was intercepted and on search of the can held by the accused, the same found containing 2 = ltrs. of arrack. According to PW3, two samples of arrack were taken, and 5 Crl.A.No.200 of 2007 the samples and the residue were sealed and labelled in the presence of witnesses and the mahazar was prepared. During the examination of PW3, he had identified M.O.1 as the can held by the accused and M.O.2 as one of the samples drawn from the contraband article from M.O.1 can. During the cross examination of PW3, he had also identified the accused.
5. Though PW1, an independent witness who is an attestor to the mahazar, was examined he turned hostile but he had admitted his signature in the mahazar and thus the said mahazar was marked as Ext.P1 through PW1. But PW1 has categorically stated that, he was not aware of the arrest of the accused with the arrack and he has also stated that he do not know the accused. According to PW1, he put his signature on a white paper.
6. PW2 is the then Excise Inspector and according to him, on the date of the occurrence itself, the accused, the contraband article, the samples and the records were 6 Crl.A.No.200 of 2007 entrusted with him by the Excise Enforcement and Anti Narcotic Special Squad, Kollam, and accordingly he had prepared crime and occurrence report and thus Ext.P2 was marked through him. PW2 has also deposed that on receiving the accused as well as the contraband article and the samples, he had prepared the property list and items mentioned in Ext.P3 property list were produced before the court on 13.7.1999 itself and the accused was also produced on that date. PW2 has further stated that he had prepared a forwarding note on the basis of which, sample was sent for chemical analysis and accordingly obtained a chemical analysis report which was marked as Ext.P4. The investigation was further undertaken by PW4-the then Excise Range Inspector, who eventually laid the charge after questioning the witnesses and collecting the evidence and materials. These are the evidences and materials referred to and relied on by the learned Judge in the judgment in question.
7 Crl.A.No.200 of 2007
7. Learned counsel for the appellant vehemently submitted that the prosecution has not filed or produced any forwarding note so as to sent the sample for chemical analysis and therefore, Ext.P4 chemical analysis report cannot be believed, and thus the appellant is entitled to get an acquittal, especially in the light of the decision of this Court reported in Anandan Vs. State of Kerala (2007(3) KHC 599). It is the further submission of the counsel that, thus there is no evidence or materials to prove the prosecution allegation against the appellant beyond reasonable doubt but the learned Judge of the trial court has miserably failed to consider the above aspect and therefore the judgment of the trial court is liable to be interfered with and the appellant is entitled to get an acquittal.
8. On the other hand, learned Public Prosecutor strenuously submitted that the evidence of Pws.2 to 4-the official witnesses prove the allegation against the appellant 8 Crl.A.No.200 of 2007 and their evidence is supported by contemporary documents, including Ext.P1 mahazar. It is the submission of the learned Public Prosecutor that though PW1-an independent witness, who is an attestor to Ext.P1, turned hostile to the prosecution, he has admitted the signature in Ext.P1, which shows that he deposed before the court only to assist the accused for an acquittal. Thus according to the learned Public Prosecutor, the findings of the court below are based upon the available evidence and materials on record and no interference is warranted.
9. I have carefully considered the arguments advanced by the counsel for the appellant as well as the learned Public Prosecutor for the State and I have gone through the judgment of the trial court and also carefully perused the evidence and materials on record.
10. In the light of the contentions advanced and in the light of the evidence and materials on record, the question to be considered is whether the trial court is 9 Crl.A.No.200 of 2007 justified in its finding and convicting the appellant for the offence under section 8(1) of the Abkari Act. The crux of the prosecution allegation is that at about 12 noon on 13.7.1999 when the Excise Enforcement and Anti Narcotic Special Squad, Kollam, lead by the then Preventive Officer accompanied by PW3 found that the appellant/accused was in possession of 2 = ltrs. of arrack in M.O.1 can, the accused was arrested then and there, and the contraband article and the samples were seized on the spot itself. As I indicated earlier, the Preventive Officer who detected the crime is not examined as he was no more. Therefore, the prosecution to prove the findings, the seizure of the contraband article and the arrest of the accused, mainly depends upon the evidence of Pws.1 and 3. PW1, an independent witness who is an attestor to Ext.P1, turned hostile. It is true that, as pointed out by the learned Public Prosecutor that, though PW1 has turned hostile, he had admitted his signature in Ext.P1 mahazar. But the content 10 Crl.A.No.200 of 2007 of Ext.P1 is not supported by him. Thus, it is relevant to note that the Officer who detected the crime and laid the seizure of the contraband article and arrest of the accused, was not examined as he is no more. The independent witness, who was examined, has also turned hostile to the prosecution. Therefore, the further question to be considered is that, whether the evidence of PW3 is sufficient to prove the seizure of the contraband article and arrest of the accused, as claimed by the prosecution. Ofcourse, Ext.P1 is a contemporary document alleged to have been prepared, and is connected with the seizure of the contraband article and the arrest of the accused. Though I have repeatedly gone through the evidence of PW3 and Ext.P1 mahazar, there is no evidence to prove as to who is the author of Ext.P1 mahazar and how it was prepared. PW3, in his deposition, has never stated that Ext.P1 mahazar was prepared by the Preventive Officer or any other person, on the direction of the then Preventive 11 Crl.A.No.200 of 2007 Officer. On a physical verification of Ext.P1 mahazar, it can be seen that the entire body of Ext.P1 is prepared in the same hand writing, by using the same pen and ink and other endorsements in Ext.P1 are appears to have endorsed differently by different persons. The signature, the date and the name and designation of the Preventive Officer were written in a different ink, in different pen, but the name and signature of the attestor to Ext.P1 is prepared by using entirely different ink and pen. It is further pertinent to note that in Ext.P1, there was an endorsement to the effect that, "
.
Sd/- Duty guard 10.7.99 3 p.m."
No explanation is forthcoming from the side of prosecution as to how the accused, material objects and records were happened to be received by the Duty guard at 3 p.m. on 10.7.1999, when the prosecution case is that the seizure 12 Crl.A.No.200 of 2007 was effected on 13.7.1999. It is also relevant to note that, as per the prosecution evidence and claim it was PW2, the then Excise Inspector who had received the accused and the material objects and records. But the said claim of PW2 and the prosecution are diametrically opposed to the endorsement contained in Ext.P1 mahazar. So the documents of the prosecution, thus create serious doubt with respect to the genuineness and veracity of the prosecution allegation that the accused was found in possession of the contraband article on 13.7.1999. Thus, regarding the occurrence and the seizure of the contraband article and arrest of the accused, according to me, the prosecution evidence is not believable and acceptable.
11. It is also relevant to note that as pointed out by the learned counsel for the appellant, no forwarding note is produced by the prosecution to show that the sample has been forwarded to the chemical analyst at the request of 13 Crl.A.No.200 of 2007 the prosecution agency. In the decision reported in Anandan Vs. State of Kerala (2007(3) KHC 599) relied on by the counsel for the appellant it has been held that, "But the prosecution has not produced any material before court below that a requisition or a forwarding was submitted before the Magistrate inquesting the despatch of the sample bottle to the chemical examiner for analysis. No doubt, there an office copy of a forwarding note available in the records of the Magistrate. Going by the said forwarding note, on 02/09/2003 a request appears to have been made by the Sub Inspector to despatch the sample bottle to the chemical examiner for analysis. Even assuming that the said unmarked document could be relied on, there is nothing to show that the sample bottle was forwarded in response to the said request. On the contrary, Ext.P4 certificate of chemical analysis refers to a letter dated 16/10/2003 from the Magistrate while forwarding a sample bottle to the chemical examiner for analysis. Apart from the fact that the office copy of the said covering letter from the Magistrate has not been marked in this case, no member of the thondi section of the Magistrate's Court was examined to prove that the sample which was in fact forwarded along with the covering letter dated 15/10/2003 was the sample bottle received as per Ext.P3 14 Crl.A.No.200 of 2007 property list. If as a matter of fact, a request was made on 02/09/2003 to forward the sample bottle to the chemical examiner, it is not known as to why a sample bottle was sent to the chemical examiner only on 15/10/2003. Even assuming that the bottle which was forwarded to the chemical examiner as per the covering letter dated 15/10/2003 was the same bottle which was received under Ext.P3 property list, the prosecution will have to further prove that the said sample was drawn from the contraband liquor possessed by the appellant."
In the above reported case, it is relevant to note that though the original of the forwarding note was not produced, copy of the same was found along with the case bundle but still then, this Court is not inclined to accept the prosecution case, particularly when the prosecution has miserably failed to establish the identity of the accused in that case. The facts and circumstances involved in the present case are more worse to the prosecution, since not even a copy of forwarding note has been produced in this case. In the present case, also it is relevant to note that 15 Crl.A.No.200 of 2007 though PW3 has identified the accused, there is no convincing evidence and materials to prove that the contraband articles were seized from the possession of the appellant and samples were drawn from there, since the evidence on record is not sufficient to prove the same positively.
12. In the light of the above discussion and the evidence and materials referred, I am of the view that, the prosecution has not succeeded in proving its allegation against the appellant beyond reasonable doubt and the learned Judge of the trial court has failed in considering those aspects and extending the benefit of doubt in favour of the appellant. Therefore, I am unable to approve the conviction recorded by the trial court and hence the findings of the court below and the conviction recorded against the appellant are set aside.
In the result, this appeal is allowed, setting aside judgment dated 16.1.2007 in S.C.No.601 of 2003 of the 16 Crl.A.No.200 of 2007 court of Additional District and Sessions Judge (Ad hoc) II- Kollam, and the appellant is acquitted of all the charges levelled against him. The bail bond, if any, executed by the appellant will stand cancelled and he is set at liberty.
Criminal appeal is allowed accordingly.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge