Kerala High Court
Sarasamma vs The Excise Inspector Of Mavelikkara on 11 October, 2204
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938
CRL.A.No. 1847 of 2004 ( )
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AGAINST THE JUDGMENT IN SC 44/2003 of ADDITIONAL SESSIONS JUDGE, FAST
TRACK (ADHOC-1), ALAPPUZHA DATED 11-10-2204
APPELLANT(S)/IST ACCUSED::
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SARASAMMA, IDAYASSERIL VEEDU,
KADAVOOR MURI, KANNAMANGALAM VILLAGE.
BY ADV. SRI.R.KRISHNA RAJ
RESPONDENT(S)/COMPLAINANT::
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THE EXCISE INSPECTOR OF MAVELIKKARA
RANGE, REP. BY THE PUBLIC PROSECUTOR.
BY PUBLIC PROSECUTOR SRI. N. SURESH.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21-03-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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P.D. RAJAN, J.
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Crl.Appeal No.1847 of 2004
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Dated this the 21st day of March, 2016
JUDGMENT
This appeal is preferred by the accused against the judgment of conviction and sentence in S.C.No.44/2003 of Additional Sessions Judge Fast Track (Adhoc-I), Alappuzha u/s.55(g) of the Abkari Act. The charge against the appellant is that on 17.2.1999 at 11.30 a.m. the Preventive Officer, Excise Circle Office, Mavelikkara was conducting patrol duty within his jurisdiction, he got information that the appellant was keeping wash in her house. Immediately, he prepared a search memorandum, forwarded it to the Court and conducted a search inside the house found 115 litres of wash there. Accused was arrested, after taking sample he was produced before Excise Range Inspector with sample, where registered a crime. After Crl.. Appeal No.1847/2004 2 completing investigation, the Excise Inspector Mavelikkara laid charge before Judicial First Class Magistrate Court, Mavelikkara. Subsequently, the case was committed to Sessions Court, Alappuzha.
2. It is manifest from the procedure that prosecution examined PW1 to PW8 and marked Exts.P1 to P7 as documentary evidence. MO1 to MO5 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning her, she did not adduce any defence evidence. The learned Additional Sessions Judge, Fast Track-I, convicted her u/s.55(g) of the Abkari Act and sentenced thereunder. Being aggrieved by that, she preferred this appeal.
3. Heard both sides. The main contention advanced by the learned counsel appearing for the appellant is that there is no evidence to prove the possession of the house Crl.. Appeal No.1847/2004 3 and no independent evidence to prove the seizure. When there is no evidence to prove the possession, the appellant is entitled to get the benefit of doubt. But the learned Public Prosecutor strongly opposed the argument.
4. The search was conducted by PW1 Preventive Officer, Excise Range Office, Mavelikkara. The evidence of PW1 shows that while he was conducting patrol duty, he got information about the possession of wash by the appellant. It is true that possession of article for manufacturing illicit arrack is punishable under the Abkari Act. Therefore, the Excise officials or Police Officers may arrest such person found committing such violation. The Abkari Officers have also a right to seize the article from such custody and arrest those persons with warrant or without warrant. In cognizable cases under the Abkari Act, the Excise Official or the Police Officer can effect arrest without a warrant. Here, the evidence of PW1 shows that he conducted a Crl.. Appeal No.1847/2004 4 search in the house of the appellant. In general rule, house can be searched only after obtaining a search warrant. Such warrant must be obtained from a Magistrate. But in case of offence under the Abkari Act, the search can be conducted after obtaining a warrant from the Commissioner of Excise or any officer empowered by the Government to exercise the powers of the Commissioner of Excise or from a Magistrate. If there is reason to believe that delay in obtaining a warrant would result in the concealment or destruction of evidence or facility for escaping the offender, then the officer may search the house or building without a warrant after recording the reason. The officers above the rank of the Preventive Officer are competent to conduct search without warrant under the Abkari Act.
5. It is imperative that all search under the Abkari Act shall be made in accordance with the provisions of the Code of Criminal Procedure and carefully observe the Crl.. Appeal No.1847/2004 5 procedure. The Code of Criminal Procedure says that the searches shall be conducted only in the presence of two respectable witnesses of the locality. According to the Excise Manual if the Excise officials have an apprehension that the witnesses of the locality would be hostile to the prosecution, he may take a witness elsewhere for witnessing the search. Therefore, the Excise Officials would invariably call independent witnesses for witnessing such search. This would show that it is necessary, whenever an officer is conducting search without obtaining a search warrant, the ground of belief should be recorded in the form of memorandum before entering the house or building to be searched. The memorandum should be simultaneously sent to nearest Magistrate competent to try the case. It is clear from the Abkari Act or Excise Manual that seizure should be reported forthwith. When S.36 of the Abkari Act and Para 17, 26, 34, 49 & 77 in the Manual are read together, as Crl.. Appeal No.1847/2004 6 they should be, it is clear that seizure should be reported to the Court 'forthwith' and make a request for sending a sample for analysis. For the sake of argument, I can say that no time is fixed for sending sample, therefore speedy action is required, otherwise no purpose will be served for the indication in Para 77 of the Kerala Excise Manual. Therefore it is presumed that the seizure should be reported to the jurisdictional Magistrate "forthwith" and request should be forwarded in the proper form (provided in the Kerala Chemico Legal Analysis) for sending sample for analysis. However prompt reports, proper preservation of sample, proper sending of sample with its authority and proof, proper analysis of the sample and obtaining reports are necessary. Even after amendment of the Abkari Act, this position has not changed.
6. Even though he contended that he prepared a ground of belief in the form of a search memorandum, it was Crl.. Appeal No.1847/2004 7 not produced before Court and not marked that document as an evidence. Therefore, it is clear that the provisions with regard to conduct of search was violated by PW1 and he proceeded to search the house without a search warrant or without recording the ground of belief and simultaneously it was not sent to the nearest Magistrate competent to try the case. PW1 entered into kitchen and detected MO1 to MO5. He took 500 ml each from MO1 to MO5 and sealed at the place of occurrence and affixed label and the remaining wash was destroyed there. Ext.P1 is the mahazar, Ext.P2 is the search list. Reaching at the Excise Office, he entrusted MO1 to MO5 to PW2 Excise Inspector, Mavelikkara. PW2 Excise Inspector, Mavelikkara registered a crime. The sample taken was produced before Court with requisition for sending it to the chemical examiner's lab. Ext.P4 is the property list. The independent witnesses PW4 and PW5 did not support the prosecution Crl.. Appeal No.1847/2004 8 case. PW4 denied his signature in Ext.P1 and P2 and stated that the accused is residing 9 kms away from his house. PW5 denied his signature in Exts.P1 and P2 and stated that he is residing 7 kms away from the place of occurrence. On a close reading of the evidence of PW4 and PW5, it is true that the search was conducted by PW1 without obtaining the presence of respectable witnesses of the locality. PW3, who is the Preventive Officer supported the evidence of PW1, but he also failed to produce search memorandum before Court. Analysing the oral evidence of these witnesses, it is clear that PW1 has not followed the procedure for conducting search.
7. In a house search, the searching officer has to prepare a search list on the spot. All articles recovered must be carefully packed, labelled and sealed in the presence of the search witnesses and sign the label and affixed it to each article. Their signatures should be Crl.. Appeal No.1847/2004 9 obtained and make an endorsement on the foot of the search list so as to ensure that they were present at the time of of search. They should be called upon before Court during trial to prove their presence at the time of search, especially if they put their signature at that time. Therefore, signatures of the witnesses to the search list is very relevant. Even though PW2 deposed that the articles seized with Ext.P1 mahazar and Ext.P2 search list were produced before him, that itself is not sufficient to show that PW1 had complied with the procedure formalities of the search and seizure provided in the Abkari Act, Code of Criminal Procedure and the Abkari Manual. In the absence of independent evidence, it is presumed that the seized article cannot be used for a conviction.
8. In this context, I have examined whether there is any evidence to prove the possession of the house. PW6 conducted investigation and laid charge before Court. He Crl.. Appeal No.1847/2004 10 obtained a certificate from PW7 to prove the possession of the house. PW5, Taluk Supply Officer deposed that he received Ext.P6 document at the time of issuing ration card and as per Ext.P6, one Purushothaman is the head of the family and Sarasamma is his wife. Even though Ext.P6 was produced before Court, that itself is not sufficient to prove the possession of the house. The Secretary of the Chettikulangara Grama Panchayat (PW7) issued Ext.P7 certificate and as per Ext.P7, the owner of the house is one Purushothaman but he is not an accused in this case. Apex Court in Ghuran Yadav v. State of Bihar [AIR 1971 SC 1641] held as follows:
"It is thus obvious that his evidence is of little assistance on the question of ownership of the house searched as he has no personal knowledge and the names of the persons on whose information he depends for his testimony have not been disclosed. This witness has not stated if he had ordered the search of the house in question nor has he stated the reasons why it was considered necessary to search the house. Indeed, he neither remembers having signed the search list nor if he had put his seal anywhere. His evidence does not prove that the search was carried out with the Crl.. Appeal No.1847/2004 11 requisite care and caution. The search, if any, which is said to have led to the recovery of the six bags in question appears to us on the existing record to have been effected in a manner which does not inspire confidence. But we need say nothing more on this point because the absence of evidence of ownership of the house is enough to determine the fate of the prosecution case."
9. It is the primary responsibility of the prosecution to prove the possession or ownership of the house from where MO1 to MO5 were seized. Apex Court in Mohanlal v. State of Rajasthan [2015(5) SCALE 330], while discussing the provisions of the NDPS Act, held as follows:
"E. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e, the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. In the case at hand, the appellant, we hold had the requisite degree of control when, even if Crl.. Appeal No.1847/2004 12 the said narcotic substance was not within his physical control at that moment."
10. On a careful analysis and appraisal of evidence, it is clear that the story deposed by the official witnesses are unreliable and shaky. Even though Exts.P6 and P7 were produced in the trial Court, that itself is not sufficient to prove the possession of the house. The oral and documentary evidence shows that prosecution utterly failed to prove the case beyond reasonable doubt. The onus is on the prosecution to prove the case beyond reasonable doubt against the accused. When prosecution fails to prove the ownership or possession of the house, it is of the view that there is no legal evidence to show that it was the house of the appellant which was searched, she is entitled to get the benefit of doubt. The punishment under the Abkari Act is stringent, therefore, strong evidence is necessary to prove the guilt of the accused. In the absence of such evidence, conviction and sentence passed by the Crl.. Appeal No.1847/2004 13 Additional Sessions Judge, Fast Track (Adhoc-I), Alappuzha u/s.55(g) of the Abkari Act are set aside and the appellant is acquitted and set at liberty.
Crl.Appeal is allowed.
P.D. RAJAN, JUDGE.
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