Kerala High Court
Lenin vs State Of Kerala on 12 November, 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 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934
CRL.A.No. 17 of 2007 ( )
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AGAINST THE ORDER IN SC.475/2004 of ADDL.SESSIONS JUDGE,
FAST TRACK COURT NO.III (ADHOC), MANJERI
OP.45/2004 of J.M.F.C.,NILAMBUR
APPELLANT(S)/ACCUSED IN SESSIONS CASE NO.475/2004:
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LENIN, S/O.NENIYATTIL KUMARAN,
AGED 37, RESIDING AT NENIYATTIL HOUSE
THRIKKAKARA VILLAGE, KANAYANNUR TALUK
ERNAKULAM DISTRICT.
BY ADV. SRI.K.C.ELDHO
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.SMT.LALIZA T.Y., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
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Crl.A.No.17 of 2007
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Dated this the 12th day of November, 2012.
J U D G M E N T
The first accused in S.C.No.475 of 2004 of the court of Additional Sessions Judge, Fast Track Court No.III (Ad hoc), Manjeri, is the appellant herein who challenges his conviction and sentence for the offence under section 55(a) of Abkari Act.
2. The prosecution case is that, on 26.9.1999 afternoon, the accused persons were found transporting 3340.8 litres of Indian Made Foreign Liquor kept in bottles in a lorry bearing No.TN 74 D 6912 without any valid pass or authority. Thus according to the prosecution, the accused 2 in numbers have committed the offence punishable under section 55(a) of the Abkari Act. On the basis of the above allegation, C.R.No.33/1999 of Excise Range Office, Nilambur, was registered against the 2 Crl.A.No.17 of 2007 accused 3 in numbers for the said offence. On completing the investigation, report was filed in the court of Judicial First Class Magistrate-Nilambur, wherein C.P.No.45/2004 was instituted. Subsequently, by order dated 30.11.2004, the learned Magistrate committed the case to the Sessions court and thus S.C.No.475 of 2004 was instituted which finally made over to the present trial court for disposal. Thus when the appellant/1st accused appeared before the court after hearing the prosecution as well as the said accused, a formal charge was framed against the accused for the offence punishable under section 55(a) of the Abkari Act, which when read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, the prosecution had adduced its evidence by examining Pws.1 to 11 and producing Exts.P1 to P17 documents. No evidence is produced from the side of the defence. The trial court had finally found that the prosecution has proved the fact that Pws.1 and 5 had found the accused driving a lorry bearing No.TN-74 D 6912, while Pws.1 and 5 were sitting at 3 Crl.A.No.17 of 2007 Anamari check post, which contained 8000 liquor bottles and thus the prosecution has successfully established their case beyond reasonable doubt. Accordingly, the appellant was found guilty for the offence punishable under section 55(a) of the Abkari Act and accordingly he is convicted thereunder. On such conviction, the appellant is sentenced to undergo rigorous imprisonment for 5 years and also to pay fine of `1 lakhs and in default, he is directed to undergo simple imprisonment for another 1 year. Set off was allowed under section 428 of Cr.P.C. It is the above finding and order of conviction and sentence that are challenged in this appeal.
3. I have heard Sri.K.C.Eldho learned counsel for the appellant and Smt.Laliza T.Y. learned Public Prosecutor for the State.
4. To prove the allegation against the appellant, the prosecution mainly depends upon the evidence of Pws.1 to 11 and the documentary evidence. Among the above prosecution witnesses, the evidence of Pws.1 and 5 were 4 Crl.A.No.17 of 2007 pressed into service by the prosecution to prove the main incident connected with the crime. PW1 is the Detecting Officer who was then working as Excise Inspector of Manjeri Excise Range. PW5 is the Excise Preventive Officer attached to Manjeri Excise Range who also involved in the detection of the crime along with PW1. When Pws.1 and 5 were examined, they deposed in favour of the prosecution. According to Pws.1 and 5, when the vehicle driven by A1 came at the check post, on examination of the papers and documents with respect to the vehicle, they got some doubt about the genuineness of the documents and accordingly they have decided to inspect the vehicle. Thus on such inspection, Pws.1 and 5 found granite powder in 20 sacks and chaff of paddy in 16 sacks in the above portion of the load. On further examination, they found the cardboard boxes. Thus on opening one box, they found bottles having 750 ml. Haywards Golconda Brandy. They have also examined other cases found in the lorry and thus found 161 cases of brandy containing brandy bottles having 750 ml. 5 Crl.A.No.17 of 2007 and 167 cases of 375 ml. Haywards Golconda Brandy bottles and 45 cases having 180 ml. Haywards Golconda Brandy bottles. Thus according to them, they took 2 bottles of 750 ml., 375 ml. and 180 ml. of liquor in the presence of witnesses and on examining the contents by smelling and tasting found it to be contained with brandy. According to Pws.1 and 5, as the accused were having no authority to transport the above liquor bottles, they arrested both the accused from the spot and after packing the opened bottles, put his personal seal and after obtaining the signature of the accused and the witnesses in the labels, affixed those labels on the sample bottles and seized the records available in the vehicle and prepared a mahazar. The arrest of the accused was informed to the addressee, in the address given by the accused, by telegram. Thus when PW1 was examined, Ext.P1 arrest memo with respect to A1, Ext.P2 arrest memo with respect to A2, Ext.P3 search list and Ext.P4 seizure mahazar were marked through PW1. PW1 has also identified M.O.1 currency notes for `1,000/- 6 Crl.A.No.17 of 2007 and M.Os.2 to 4 liquor bottles altogether which contains 3340.8 ltrs. of Indian Made Foreign Liquor.
5. According to Pws.1 and 5, after the arrest of the accused and seizure of the contraband article, they reached in the Nilambur Excise Range and accordingly the thondi article as well as the accused were handed over to PW7-the then Preventive Officer of Nilambur Excise Range at about 10 p.m. on 26.9.1999. Pws.2 and 3 are the two eye witnesses to Ext.P4 seizure mahazar but they turned hostile. PW4 is the Excise Preventive Officer of Nilambur Excise Range who prepared Ext.P5 thondi list and he had produced the vehicle before the competent authority for the confiscation of the vehicle under section 67 of the Abkari Act. PW6 is the Excise Inspector who undertook the initial investigation. When he was examined, Exts.P6 and P7-the relevant portion of 161 statement of Pws.2 and 3 respectively, were marked. When PW7-the Preventive Officer then attached to Nilambur Excise Range, was examined, he deposed that he received the thondi article 7 Crl.A.No.17 of 2007 and the accused from Pws.1 and 5 at about 10 p.m. on 26.9.1999 and he had further stated that the thondi article as well as the accused were handed over to PW8 on the next day morning itself. When PW8 was examined, who was the then Assistant Excise Inspector, Nilambur Excise Range, he had deposed that, on receiving the accused as well as the contraband article, he prepared Ext.P8 crime and occurrence report, Ext.P9 thondi list and Ext.P10 forwarding note. According to PW8, he produced the accused before the court on 27.9.1999 itself. PW9 is the Investigating Officer who laid the charge finally. When PW9 was examined, Ext.P11 charge sheet, Ext.P12 transit pass and Ext.P13 insurance certificate of the vehicle and Ext.P14 chemical analysis report were marked through PW9. PW10 is the Chemical examiner. PW11 is the Presiding Officer of the committal court and when PW11 was examined, Ext.P15 inventory report dated 19.11.2004, Ext.P16 series of photographs of the material objects and its negatives were marked as Ext.P17 series. It is on the basis 8 Crl.A.No.17 of 2007 of the above evidence and materials, the trial court arrived at its finding and convicted the appellant.
6. Learned counsel for the appellant vehemently submitted that, Pws.1 and 5 had no jurisdiction to detect the crime and arrest the accused, as the alleged offence was not taken place in their territorial jurisdiction. It is also argued by the counsel that there was every possibility of tampering the samples and the contraband articles. According to the learned counsel, the conscious possession of the contraband article is not proved against the accused. It is the further case of the counsel that, no effective and proper investigation was conducted by the prosecution to find out the owner of the vehicle from where the contraband article was allegedly seized. According to the counsel, there is substantial delay in producing the material objects before the court. The arrest was not done in accordance with law. According to the learned counsel, the prosecution has miserably failed to prove the material witness with respect to the custody of the contraband article. Another 9 Crl.A.No.17 of 2007 important point raised by the counsel for the appellant is that, the chemical analysis report namely, Ext.P14 does not represent the contraband article allegedly seized from the possession of the appellant. Thus according to the learned counsel, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt and therefore, the appellant is entitled to get an acquittal.
7. On the other hand, learned Public Prosecutor submitted that though Pws.1 and 5 are the Officers attached to Manjeri Excise Range as per the working arrangement made by the department on the date of the occurrence ie., on 26.9.1999, Pws.1 and 5 were authorised to discharge their official function connected with Anamari check post and therefore there is no illegalities or improprieties in the action taken by Pws.1 and 5 in detecting the crime, arrest of the accused and seizure of the contraband article. It is also the submission of the learned Public Prosecutor that, as per the evidence of Pws.1 and 5, the contraband article and the accused were entrusted with 10 Crl.A.No.17 of 2007 PW7 at 10 p.m. on 26.9.1999, which evidence of Pws.1 and 5 is corroborated by the evidence of PW7, who in turn handed over the thondi article of the accused to PW8 on 27.9.1999. Learned Public Prosecutor points out that, it was PW8, who prepared Ext.P8 crime and occurrence report on 27.8.1999 and prepared Ext.P9 thondi list and Ext.P10 forwarding note and produced the accused as well as the contraband article before the court on 27.9.1999. Therefore, there is no delay in producing the thondi article before the court, which fact is further corroborated by contemporary documentary evidence ie., Ext.P9, which contains the endorsement of the Magistrate of the committal court. Thus according to the learned Public Prosecutor, the evidence on record, particularly the evidence of Pws.1 and 5, are intact and their evidence are supported by the contemporary documents. Therefore, the learned Judge of the trial court, according to the learned Public Prosecutor, is correct in convicting the appellant and no interference is warranted.
11 Crl.A.No.17 of 2007
8. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the judgment in question. I have also scrutinised the evidence and the materials on record.
9. In view of the rival contentions and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant. In the light of the two decisions of this Court reported in Sasidharan V. State of Kerala (2007(1) KLT 720) and in Ravi V. State of Kerala (2011(3) KLT 353), which are relevant in this case, according to me, the appellant is entitled to get a clear acquittal. In the above two decisions, the learned Single Judge and the Division Bench of this Court has held that, "Prosecution has a duty to prove that it was the sample taken from contraband liquor seized from accused which had reached the hands of Chemical Examiner in a fool proof condition."
10. In the present case, going by the evidence of 12 Crl.A.No.17 of 2007 Pws.1 and 5, it can be seen that according to Pws.1 and 5, during the alleged seizure of the contraband article, they had taken bottles from three sets of boxes and the same were opened and PW1 has tasted and smelled the same and accordingly realised the same as brandy. Further Pws.1 and 5 are unanimous in their deposition that, after opening the bottles, for identifying the liquor therein, the same were taken as samples and the samples were sealed. According to the prosecution, it is those samples forwarded to the chemical lab as per Ext.P10 forwarding note. But the chemical analysis report shows that, in the chemical lab, six sealed bottles with original printed labels and factory seals, were marked as items 1 to 6, item nos. 1 and 2 containing 750 ml. of brandy, item nos. 3 and 4 containing 375 ml. of brandy and item nos. 5 and 6 containing 180 ml. of brandy were received. According to me, the above report of chemical analysis goes against the evidence of Pws.1 and 5. Though Pws.1 and 5 were categorical in their depositions to the effect that they have opened the bottles and took the 13 Crl.A.No.17 of 2007 contents therein for examination, for the purpose of identifying the contents and thereafter the said bottles were seized and forwarded for chemical analysis, as per the chemical analysis report, there is no decrease in the quantity in each sample bottle. The said fact is against the deposition of Pws.1 and 5. It is further relevant to note that as per Ext.P14 chemical analysis report, the factory seal of the samples were intact. The said report is also against the evidence of Pws.1 and 5, who says that they have opened the bottles. Thus, it can be seen that the sample bottles received in the chemical examiner's lab were not representing the contraband article, allegedly seized by Pws.1 and 5.
11. In this juncture it is relevant to note that, though Pws.1 and 5 deposed before the court that they have entrusted the contraband article and samples with PW7, the further evidence of prosecution, namely the evidence of Pws.7 and 8, were not helpful for the prosecution to show that the contraband article was kept under proper and safe 14 Crl.A.No.17 of 2007 custody without any room for tampering the same. Neither PW7 nor PW8 has deposed before the court regarding the safety measures adopted by them for the safe custody of the contraband article as well as the samples. According to PW7, the thondi articles were handed over to PW8 on 27.9.1999. The deposition of PW8 is not sufficient to show that he had produced the contraband article in the court on 27.9.1999. What PW8 has deposed before the court in his chief examination is that, " 8 CW8 P.O. .
. C.R.No.33/99 Register . . . Marked as Ext.P8. list, forwarding note Ext.P9, P10.
." PW8 has not deposed in his chief examination that he had produced the thondi articles and the samples before the court. PW8 has also not stated about the place where the contraband article and the material objects were kept and who was the custodian of the same. According to the 15 Crl.A.No.17 of 2007 counsel for the appellant, PW8 has produced only Exts.P9 and P10 documents and he has not produced the contraband article. In the absence of any positive evidence regarding the production of the contraband article, I am not in a position to reject those contentions. In this juncture it is relevant to note that, in Ext.P9 property list, though the same contained true endorsement of the Presiding Officer of the committal court, it is very pertinent to note that there is no endorsement to the effect that the material objects are produced. What is stated in the endorsement is to the effect that the Excise Inspector shall keep items 1 to 4. In this juncture it is also pertinent to note that, the contraband article allegedly seized was huge quantity and it was impossible to keep those articles in the court. So in the absence of any positive evidence that the material object was physically produced before the court, it may not be proper to hold that the prosecution has produced the material object in the court. Even if it is taken as true that the contraband article was produced before the court, still 16 Crl.A.No.17 of 2007 then the prosecution has miserably failed to establish that the contraband article were kept intact without any room for tampering the same. As rightly pointed out by the learned counsel for the appellant, the hardboard boxes which allegedly contained the Indian Made Foreign liquor, were not sealed by Pws.1 and 5 or any other witness of the prosecution. According to Pws.1 and 5, they handed over the contraband article to PW7, who in turn handed over the same to PW8. Neither Pws.7 nor 8 has got a case that they have sealed the hardboard boxes. Hence it cannot be ruled out the possibility of tampering the evidence with respect to the contraband article. As I indicated earlier, regarding the safe custody of the contraband article, absolutely there is no reliable evidence. In this juncture it is relevant to note that, PW11-the Magistrate of the committal court had prepared Ext.P15 inventory only on 19.11.2004, ie., after 5 years from the date of the alleged seizure of the contraband article. In the absence of any positive evidence to show that the contraband article, which allegedly seized from the 17 Crl.A.No.17 of 2007 possession of the accused was kept intact without any room for tampering the same, there is no guarantee that Ext.P15 inventory is with respect to the contraband article actually recovered from the accused. Thus on examination of the evidence and materials on record, especially in the light of the dictum laid down by this Court in the above two decisions, it can be seen that the prosecution has miserably failed to show that Ext.P14 chemical analysis report represents the contraband article which was allegedly recovered from the possession of the accused and the material objects covered by Ext.P15 are the one seized from the possession of the appellant.
12. In the light of the above discussion and materials and evidence referred to above, I am of the view that, the prosecution has miserably failed to prove its allegation against the appellant beyond reasonable doubt. The learned Judge of the trial court has miserably failed to consider the above aspect and committed mistake in not extending the benefit of doubt in favour of the appellant. 18 Crl.A.No.17 of 2007 Therefore, I am unable to sustain the findings and conviction recorded by the trial court. Hence, according to me, the appellant is entitled to get the benefit of doubt. Thus, the conviction recorded by the trial court is set aside.
In the result, the judgment of the trial court dated 18.12.2006 in S.C.No.475 of 2004 of the court of Additional Sessions Judge, Fast Track Court No.III (Ad hoc), Manjeri, is set aside and the appellant/accused is acquitted of all the charges levelled against him. The bail bond, if any, executed by the appellant shall stand cancelled and he is set at liberty.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge