IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1116 of 2007()
1. MONACHAN, S/O/MATHAI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :G.G.MANOJ[STATE BRIEF]
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :30/07/2007
O R D E R
K. THANKAPPAN, J.
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CRL.A.NO.1116 OF 2007
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Dated this the 30th day of July, 2007.
JUDGMENT
The accused in S.C.No.989/2003 on the file of the Additional
Sessions Judge (Abkari Cases), Kottarakkara, is the appellant. He
faced trial for the offences punishable under Section 55 (a) read
with Section 8(1) and 8(2) of the Abkari Act on the allegation that he
was fond in possession of 1.5 liters of arrack and engaged in selling
the same at 3.50 a.m on 24.2.2002 within the limits of Yeroor
Police Station near Andannoor Bhagavathy Temple in Ayiranalloor
villlage and thereby committed the said offence. To prove the
charge against the appellant, prosecution examined Pws 1 to 5 and
relied on Exts.P1 to P5. MO1 was also produced before the court.
After closing the prosecution evidence, the appellant was questioned
under Section 313 of the Code of Criminal Procedure. He denied the
prosecution allegation and had stated that while he was engaged in
playing cards, he was arrested from the festival compound and he
has not committed the offence as alleged by the prosecution.
However, relying on the evidence adduced by the prosecution, the trial
court found that the appellant committed the offences punishable
CRL.A.NO.1116/2007 2
under Section 55(a) read with Section 8(1) and 8(2) of the Abkari Act
and he was found guilty thereunder and sentenced to undergo S.I for
two years and to pay a fine of Rs. One lakh with default sentence of
payment of fine to undergo S.I for three months more. The
appellant was also given the benefit of Section 428 of the Code of
Criminal Procedure.
2. This appeal is filed through the jail authorities and since the
appellant is not having a counsel of his own choice, a member from
the State brief panel has been appointed to argue the case for and
on behalf of the appellant. Heard the learned counsel appearing for
the appellant as well as the Public Prosecutor. The learned counsel
appearing for the appellant submits that the judgment of the trial
court legally or factually is not sustainable. The counsel further
submits that the trial court had committed a serious error in placing
reliance on the evidence of Pws 3 and 4, the Police Officials, to find
that the appellant was in possession of 1.5 liters of arrack as alleged
by the prosecution since independent witnesses Pws 1 and 2 had not
supported the prosecution case at all. Further the counsel submits
that PW4 while detecting the offence did not comply with the
provisions of Kerala Excise Manual as well as the Abkari Act and while
CRL.A.NO.1116/2007 3
he was taking the sample for analysis. Lastly, the counsel submits
that the evidence of PW4 regarding seizure of MO1 and taking of
the sample for analysis have not been supported by any other
evidence and as the prosecution has not offered any explanation for
the delay in producing the contraband and the sample, so as to rule
out the chance for substitution of the contraband and the sample
and that has not been proved by the prosecution. Hence, the
judgment of the trial court is not in accordance with the principles laid
down by this Court in the judgment reported Narayani v. Excise
Inspector (2002 (3) KLT 725).
3. The trial court relied on the evidence of Pws 3,4 and 5, who were
the police officials, out of whom PW4 is the Sub Inspector of Police,
who detected the crime and filed the final charge before the court.
PW3 was the head constable, who accompanied Pw 4 at the time
of detection of the offence. PW4 had given evidence before the
court that while he was in the station on 24.2.2002, he got a phone
message to the effect that the appellant was engaged in selling
arrack near the festival compound of Aandannoor Bhagavathy Temple.
On getting that information, he went to the temple compound along
with PW3 and he had seen that the appellant was holding MO1
CRL.A.NO.1116/2007 4
plastic can and on seeing the police party, the appellant thrown
away the glass and he put down the MO1 can and on further
examination it was found that the can contained about 1.5 liters of
arrack. This witness has further stated that the appellant was
questioned and MO1 can was seized as per Ext.P1 mahazar in the
presence of the independent witnesses. This witness has further
stated that he had taken the sample from MO1 for analysis. The
evidence of this witness has been supported by PW3, the head
constable, who accompanied PW4. However, the question to be
considered is whether the evidence of these two witnesses could be
believed to hold that the appellant was found in possession of MO1
jerry can which contained 1.5 liters of arrack as alleged by the
prosecution. PW4 was cross examined by the defence and the
definite case of PW4 was that he had got information that the
appellant was selling arrack near the festival compound but this
witness has not given any evidence regarding the information which
he had got about selling of arrack by the appellant. Further, either
PW4 or PW5 had not given any satisfactory explanation for the delay
caused in producing MO1 and the sample before the court as it is seen
from Ext.P4 thondi list that MO1 and the sample were produced
only on 13.3.2002 whereas, the crime was detected on 24.2.2002.
CRL.A.NO.1116/2007 5
Though a specific question was put to PW5 about the delay occurred
in producing MO1 before the court, he had not given any explanation
but, only said that he was not aware how the delay was occurred.
With the above background, this Court has to consider the evidence
of Pws 1 and 2, who were examined as occurrence witnesses. Pws 1
and 2 were specific in their evidence that they were not seen the
appellant selling arrack or MO1 was seized from the appellant by
the Sub Inspector. Though these witnesses were signed the
mahazar, they have stated that they have not seen the Sub
Inspector seizing of MO1 from the appellant. Apart from the
evidence of these witnesses, it is to be noted when MO1 was
produced before the court and verified in the court, that the seal or
label alleged to have been put by PW4 at the time of detection of the
offence were not seen on MO1. Coupled with the evidence of Pws
1 and 2 and the fact that MO1 did not contain any seal or label
create doubt on the evidence of Pws 3 and 4 regarding seizure of
MO1 from the appellant. Apart from the above infirmity, the
prosecution had not explained the delay caused in producing MO1
before the court. As per the dictum laid down by this Court in
Narayani’s case (cited supra), it is the duty of the prosecution to
give explanation that the sample and the contraband were kept in
CRL.A.NO.1116/2007 6
safe custody till they produced before the court and the prosecution
had to rule out any possibility of substitution of the same. In the
light of the fact that MO1 did not contain any label or seal and
non explanation of the delay caused in producing the same and also
the case suggested by the appellant when he was questioned under
Section 313 of the Code that he was arrested from the temple
compound while he was playing cards create reasonable doubt
regarding the prosecution case that MO1 which contained 1.5 liters
of arrack has been seized from the appellant. The benefit of doubt
has to be given to the appellant. Apart from the above infirmity in the
evidence of Pws 3 and 4 regarding seizure of MO1 and production of
the same before the court, the trial court had not put the contents of
Ext.P5 report of the chemical analyst to the appellant when he was
questioned under Section 313. This is an infraction of the right of an
accused available under Section 313.
Considering all these aspects and failure of the prosecution to
prove the case beyond reasonable doubt against the appellant, the
judgment of the trial court is not legally sustainable. Accordingly,
the judgment of the trial court is set aside and the appellant is
acquitted of all the charges. Consequently, the appeal is allowed.
CRL.A.NO.1116/2007 7
The appellant/accused in S.C.No.989/2003 on the file of the
Additional Sessions Judge (Abkari Cases), Kottarakkara, shall be
released forthwith, if he is not required to be kept in jail in
connection with any other case.
K. THANKAPPAN, JUDGE.
cl
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K. THANKAPPAN, J.
CRL.A.NO.1116 OF 2007
JUDGMENT
30th day of July, 2007.