IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 35 of 2002()
1. SAROJINI, W/O. MOHANAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice V.GIRI
Dated :19/02/2009
O R D E R
V.GIRI, J.
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CRL.R.P.No.35 of 2002
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Dated this the 19th day of February, 2009.
O R D E R
The accused, in C.C.No.80/98 on the file of the
Judicial Magistrate of the First Class, Wadakkancherry, is the
petitioner in this Criminal Revision Petition.
2. The petitioner was prosecuted for the offence
punishable under Section 55(a) of the Abkari Act (for short
‘the Act’}. She was found guilty, convicted thereunder and
sentenced to undergo simple imprisonment for a period of
one year and to pay a fine of Rs.25,000/- with a default
sentence. The conviction was affirmed by the lower
appellate court, but the sentence was modified wherein the
substantive sentence of imprisonment was reduced from
one year to six months. Challenging the conviction and
sentence, the accused has come up in revision.
3. The case of the prosecution is that a patrol
party, consisting of PW.1 Excise Preventive Officer, was
conducting petrol duty on 10.2.1997 at about 5 PM. When
the patrol party reached the pathway situated on the
southern side of the house of the accused in Kanjiramcode
CRL.R.P.No.35 of 2002
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Desom, the accused was seen coming from the opposite
side holding a Can. On suspicion, the accused was stopped.
On conducting inspection of the jerry Can, 3 litres of arrack
was found in it. The plastic can was having a capacity of 5
litres. The accused was arrested and a sample was taken in
a bottle of 180 ml. The sample bottle and the plastic Can
were sealed separately and Ext.P1 mahazar was drawn.
The crime and occurrence report, Ext.P2) was registered by
the Excise Inspector. The sample was sent for chemical
analysis and Ext.P3report was obtained. PW.1 identified the
plastic Can as M.O.1.
4. PW.2 is stated to be the mahazar witness. He
admitted his signature in Ext.P1, though otherwise he did
not support the prosecution regarding the manner in which
he came to subscribe his signature in Ext.P1. The
suggestion made to Pws.1 and 2 was that apparently the
address of the accused was available with the excise party
and that therefore, the accused was falsely implicated.
5. The trial court convicted and sentenced the
accused as aforementioned. As stated earlier, the lower
appellate court confirmed the conviction and sentence.
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6. Learned counsel for the petitioner submitted
that the evidence adduced by the prosecution is inadequate
to prove the charge against the accused beyond reasonable
doubt. It is was further submitted that in the matter of
search and seizure effected from the accused, there is
contravention of Section 36 of the Abkari Act. It is
contended that the search was not witnessed by two
independent witnesses and it is vitiated by the proviso to
Section 36 of the Act.
7. It was further contended that the evidence on
record seems to suggest that the excise officials were
acquainted with the address of the accused and it seems
that the accused was roped in without a detection and
seizure having been effected in the manner suggested by
the prosecution. It is further contended that the suggestion
made to PW.1 was that it is only because the address of the
accused was known to the excise officials, she was falsely
implicated.
8. I have gone through the evidence, both oral and
documentary. Before considering the plea regarding
contravention of Section 36 of the Act, it will be relevant to
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note certain aspects emanating from the testimony of Pws.1
and 2.
9. PW.1, the Preventive Officer was one among the
patrol party. He deposed that the patrol party had to stop
the jeep in which they came about 3/4th kilometer away
because the lane through which they came was narrow.
According to PW.1, while patrol party was standing by the
side of the southern side of the residence of the accused,
they saw the accused coming along the lane with a Jerry
Can. It was in suspicious circumstances and they inspected
the Can, which was found to be containing illicit arrack.
Thereafter Ext.P1 mahazar was drawn up and though apart
from PW.1 there were two independent witnesses, the
mahazar shows the signature of PW.2 alone as an
independent witness. Further, though the patrol party is
said to have consisted of 5 persons, none of the other official
witnesses were examined. What I found to be noteworthy in
Ext.P1 is the total absence of a recital therein that after the
seizure of M.O.1 and also after a portion of the liquor was
transferred to the sample bottle with 180 ml that though
they were separately sealed, thereafter both the accused
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and the witnesses were asked to affix their signatures on the
seal. Normally, a seal is affixed on the material object
recovered from the site and the bottle in which the sample is
collected. The accused is required to affix his/her signature
on the seal so affixed. This is a practice which is seen to be
followed, almost invariably, in all Abkari cases. But Ext.P1
does not contain any recital that the accused was asked to
put her signature on such seal. The most reliable method of
ensuring authenticity of the sample and to obviate an
argument at a later point of time that there is nothing to
connect the material object with the accused as such. PW.1
ought to have obtained the signature of the accused on the
seal of the material object, which should naturally tally with
the seal and the signature on the sample bottle. Though the
sample bottle was found to be sealed and the sample that
was forwarded to the chemical analyst as pointed out by the
Public Prosecutor with reference to Ext.P3 analysis report,
this does not ensure the authenticity of the search, the
presence of the accused at the scene of occurrence and her
being in possession of the contraband, as alleged by the
prosecution, in the absence of the signature of the accused
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on the seal affixed on the material object. I am constrained
to observe that this is a crucial lapse on the part of the
prosecution.
10. I take note of this lapse in the light of the
contention taken up by the Learned counsel for the accused,
with reference to Section 36 of the Act, which reads as
follows:
“36. Searches how to be made:- All searches
under the provisions of this Act shall be
made in accordance with the provisions
of the (Code of Criminal Procedure, 1973
(Central Act 2 of 1974)
[Provided that the persons called upon
to attend and witness such searches
shall include at least two persons neither
of whom is an Abkari, Police or Village
Officer.]”
11. The proviso thereto obviously, therefore,
requires two independent witnesses for every search which
is conducted under the provisions of the Act in question.
Learned Public Prosecutor would submit that the instant is a
case where the accused was found in possession of a jerry
Can, having a capacity of 3 litres, that she was arrested on
the spot and that this was not a case of search of the
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premises of the accused and consequently, Section 36 of the
Act would have no application. I find it difficult to accept this
submission, inasmuch as Section 36 of the Act refers to all
searches conducted under the Act as such. It does not
purport to draw a distinction between search of a premises
and search of a person. It was, therefore, necessary for the
prosecution to comply with Section 36 of the Act in the
matter of searching the person of the accused as well.
12. Indisputably, only one independent witness
has signed Ext.P1 mahazar i.e. PW.2. The reading of the
testimony of PW.1 also does not lead to a conclusion that an
attempt was made by PW.1 to secure the presence of a
second independent witness. Nor does PW.1 come out with
an explanation as to why they were unable to secure the
presence of two independent witnesses while the search was
being conducted on the person of the accused. No doubt, as
pointed out by the learned Public Prosecutor an infraction of
Section 36 of the Act does not vitiate the trial of the
accused, as has been held by this court in Madhavan v.
Excise Inspector {2000(1) KLT 311}. But, that does not
relieve the prosecution from at least offering an explanation
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as to why they were not able to secure the presence of two
independent witnesses for the search in question. It, at
least, obliges the prosecution to affirm whether they made
an attempt to secure the presence of two independent
witnesses as is contemplated by Section 36 of the Act. Even
that limited option does not seem to have been attempted
to by the prosecution. Though an infraction of Section 36 of
the Act does not result, ipso facto, in vitiating the trial as
such, it would definitely require the court to consider the
evidence offered by the prosecution with a little more
circumspection and find out whether the prosecution has
succeeded in offering an explanation for not complying with
Section 36 of the Act, while conducting the search.
13. I also take note of the evidence of PW.2, the
mahazar witness. He is a coolie and he affirmed his
signature in Ext.P1 mahazar. But, in cross-examination, he
went on to say that he did not see either the accused or
M.O.1 when he subscribed his signature in Ext.P1. He also
denies the suggestion that he was asked to smell and taste
the sample which was taken from M.O.1. This does not
support the version given by PW.1 to the contra. He further
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deposed that he signed the mahazar in the Panchayat road
at 6 PM and that only the Excise Officials were present when
he subscribed his signature in the mahazar. He further
stated that the contents of Ext.P1 were not read over to him.
The court below went on to hold that PW.2 was not
rendering the truth. I am of the view that the absence of
any attempt on the part of the prosecution to conduct a re-
examination of PW.2 cannot be brushed aside as such.
14. In these circumstances, I am of the view that
the evidence adduced by the prosecution cannot be
accepted as such. The failure on the part of the prosecution
to obtain the signature of the accused or the witness on the
seal affixed on M.O.1, as discernible from the testimony of
PW.1 and the failure of the prosecution to secure the
presence of two independent witnesses at the search in
terms of Section 36 of the Act, in my view, would render the
case of the prosecution unacceptable. It would be unsafe to
find the accused guilty of the offence under Section 55(a) of
the Act and convict her, on such shaky evidence.
For all these reasons, Criminal Revision Petition is
allowed. The conviction and sentence of the accused under
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Section 55(a) of the Abkari Act is set aside. She is acquitted
of the charge. The bail bond executed by her shall stand
cancelled. If the accused has remitted any fine, the same
shall be refunded to her within a period of three months
from the date of receipt of a copy of this order.
Sd/-
(V.GIRI)
JUDGE
sk/
//true copy//
P.S. to Judge