IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 771 of 2006(C)
1. ANIL,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :ADV.LIJU V STEPHAN(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :10/01/2007
O R D E R
K. THANKAPPAN, J.
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Crl.A.No.771 OF 2006-C
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Dated this the 10th day of January, 2007.
JUDGMENT
The appellant, accused, in S.C.No.44704 on the file of
the Additional District and Sessions Judge (Adhoc) Fast Track-
III, Pathanamthitta, faced trial for the offence punishable
under Section 8(1) read with Section 8(2) of the Abkari Act.
The prosecution allegation against the appellant is that he
was found in possession of 35 liters of arrack in a plastic
can having the capacity of 35 liters and 10 liters of
arrack in a plastic can having the capacity of 35 liters and
one liter of arrack in a bottle having the capacity of 1.5 liters
and also a glass tumbler for selling arrack at K.I.P Kanal
Puramboke, Kalanjoor Muri, within the limits of Koodal Police
Station , on 6.4.2003 at about 10.45 a.m. Prosecution
examined Pws 1 to 3 and relied on Exts.P1 to P8. MOs 1 to 5
were also produced. Closing the prosecution evidence, the
appellant was questioned under Section 313 of the Code of
Criminal Procedure. The appellant denied the
prosecution allegations and stated that he is innocent in the
CRL.A.NO.771/2006 2
case. However, relying on the evidence adduced by the
prosecution, the trial court found the appellant guilty under
Section 8(1) and convicted thereunder and sentenced to
undergo R.I for three years and a fine of Rs. One lakh with
default sentence of fine for a further period of S.I for three
months under Section 8 (2) of the Abkari Act. Challenging the
above conviction and sentence, the appeal is filed.
2. Since the appellant is not having any counsel of his own
choice, a member of the State brief panel has been appointed
to argue the case of the petitioner. This Court heard the
learned counsel appearing for the appellant as well as the
learned Public Prosecutor. The learned counsel appearing
for the appellant had two contentions before this Court.
Firstly the learned counsel submits that the trial court went
wrong in placing reliance on the evidence of the prosecution
witnesses, who are only official witnesses, as there was no
independent evidence to corroborate the evidence of official
witnesses. Secondly, the counsel submits that PW3, the Sub
Inspector of Police and other officials have violated the
provisions of the Abkakri Act and the provisions of Kerala
CRL.A.NO.771/2006 3
Excise Manuel while conducting search and seizure of the
contraband article.
3. The prosecution tried to prove the case against the
appellant through the evidence of Pws 1 to 3 of whom PW1 is
an independent witness, cited to prove the seizure, sampling
and other actions followed by PW3 while detecting the crime
against the appellant. But, this witness turned hostile to the
prosecution and even denied his signature in Ext.P2 scene
mahazer as well as the samples and the residue PW3 is the
S.I of Police, Koodal Police Station, who had stated that while
he was on duty on 6.4.2003 at about 10.45 a.m he got
reliable information that the appellant was selling arrack at
the KIP Canal Purampoke, Kanjiramoodu, Kalanjoor Muri
village and on getting the above information, PW3 along with
PW2 and another police constable reached the spot and
found the appellant having in possession of a glass and a
bottle and on seeing the police officers, the appellant tried to
escape from the scene. However, the Sub Inspector of Police
stopped him and questioned him and thereafter found MOs 1
and 2 cans containing 35 liters and 10 liters of arrack
CRL.A.NO.771/2006 4
respectively at the place from where the appellant tried to
escape. Further it is noted that MO3 bottle was in his hand
which contained one liter of arrack. It is also found that MO4
glass was also in the possession of the appellant. This
witness has further stated that on preparing Ext.P2 scene
mahazar, MOs 1 to 4 were seized at the spot and samples
were taken from the two cans as well as from the bottle.
This witness has further stated that on taking two samples
each from MOs 1 to 3, the samples were got sealed and
labeled and signed by the witnesses as well as the appellant.
This witness has further stated that after seizing MOs 1 to 4
from the appellant, the samples and the residue and MO4
were produced before the court on the very next day, namely
on 7.4.2003. Further, this witness has stated that the samples
were got analysed and received Ext.P8 chemical report,
which would show that all the samples contained ethyl
alcohol of different volumes. It is proved that the samples
were that of illicit arrack. On the basis of Ext.P8 chemical
report and after completing the investigation, a final charge
has been filed before the court. PW2 is a Head Constable,
who accompanied PW3 while detection of the the crime.
CRL.A.NO.771/2006 5
He had stated before the court that on 6.4.2003, himself,
PW3 and another constable went to the KIP Canal
Purampoke road and seen the appellant standing there
holding MO4 glass and also Mos 1 to 3. Further this witness
has stated that seeing PW3 and the other witness, the
appellant tried to escape from the scene. However, he was
stopped by Pw3 and questioned and found that the appellant
was in possession of MOs 1 and 2 cans and MO3 bottle which
contained 35 and 10 liters and one liter of arrack
respectively. This witness had further stated that two
samples were taken from each of the cans as well as MO3
bottle. Further, this witness had stated that on search of the
body of the appellant, two ten rupee notes were also found
in the pocket of the appellant and that rupee notes were
also seized by PW3.
3. The question to be decided in this appeal in the
light of the contentions taken by the learned counsel is that
whether the trial court is justified in finding that the appellant
is guilty under Section 8(1) read with Section 8(2) of the
Abkari Act or not. The prosecution case is that on getting
CRL.A.NO.771/2006 6
reliable information on 6.4.2003, PW3 and other police
constables including PW2 went to the spot and found the
appellant keeping in possession of MOs 1 to 4. But the
contention of the learned counsel that only the evidence of
official witness is available. Though PW1 was examined as
independent witness, he had turned hostile to the
prosecution. PW1 had stated that he had not seen anything
at the spot as spoken to by Pws 2 and 3. He had also denied
his signature in Ext.P2, the sample and the contraband
article seized. In this context, the 2nd contention of the
learned counsel appearing for the appellant assumes
importance. When Pw3 was cross examined by the counsel
appearing for the appellant before the court below, he had
stated that PW1 was there as an independent witness. Exts.
P1 and P1(a) are the statements recorded by the police under
Section 161 of the Code of Criminal Procedure. But, the
contention of the learned counsel is that it is the duty of the
Police Officer or the Excise Official to call and to get at least
two independent witnesses while they make search and other
actions under the provisions of the Abkari Act. To
substantiate this contention, the learned counsel cited a
CRL.A.NO.771/2006 7
judgment of this Court reported in Ramachandran Nair v.
State (1990 (1) KLT 44). In the above judgment, this Court
held that “the words “persons called upon to attend and
witness such search shall include at least two persons”
indicate legislative insistence for strict compliance with the
proviso. When the statute uses the expressions such as “at
least”, it must be understood that the minimum number
required for its performance when it falls to below the
minimum number the officer who makes the search has a
duty to explain the reason for not adhering to the minimum
requirement. If such explanation is acceptable to court, the
seizure or search may not get vitiated”. The duty cast on
the officials is not only the actions taken under Section 36
but also all provisions of the Abkari Act.
4. In the case in hand, it is come out in evidence that
when Pws 2 and 3 and other police officials went to the spot,
the appellant was found in possession of the contraband
articles and on preparing Ext.P2 scene mahazer, the same
were recovered. In Ext.P2 it is clearly stated that PW1, an
independent witness, was also there as Ext.P2 would show
CRL.A.NO.771/2006 8
the name and signature of PW1. But, when PW1 was
examined he stated that he was not present at the spot at all
and he even denied the signature in Ext.P2, the sample and
the contraband article seized by PW3. In the cross
examination, this witness had stated that he was not in the
scene at all during the relevant time. In this context, PW3
was cross examined by the defence and put specific
questions regarding getting any other witnesses to watch the
seizure and taking the samples. No explanation was offered
by PW3 whether he called at least two independent
witnesses to watch his performance. It is pertinent to note
that, he had admitted the fact that there were inhabited
houses and none of the people was called to watch the action
taken by PW3. Very interestingly this Court is noting
another fact that when PW2 was examined before the court,
he had no case that PW1 was present at the time of the
detection of the crime. Further it could be seen from Ext.
P2 that, it is recorded in it that, the samples and the
contraband article were sealed and labeled and signatures
were obtained from the accused, PW3 and other witnesses. It
is not stated that whether PW1 had signed any of the samples
CRL.A.NO.771/2006 9
labeled and sealed. Further, when PW3 was cross examined,
a specific question was put to him whether any independent
witness has been called to watch his action. He had given
the answer that:
Either PW2 or PW3 had no case that any independent witness
has been called to watch the action done by PW3. The
contention of the learned counsel that PW3 has violated the
mandatory provision of Section 36 has to be considered
seriously and the non compliance of the above provision is
vital to the prosecution. As per the dictum laid down by
this Court in Ramachandran’s case it is the duty of the
officer to explain why he could not get the presence of at
least two independent witnesses. This Court has already
found that either PW2 or PW3 had not offered any
explanation why PW3 had not tried to get the presence of
independent witness to watch his performance. In this
context, the dictum laid down by the Apex Court in the
judgment reported in M/s. Madan & Company v. Wazir
CRL.A.NO.771/2006 10
Jaivir Chand (AIR 1989 SC 630) in which the Apex Court
relying on the often quoted judgment of the Chancery
Division in Tayler v. Tayler (1875 (1) Ch D 426) held that
where power is given to do a certain thing in a certain way,
thing must be done in that way or not at all that other
methods of performance are “necessarily forbidden”.
Though the prosecution tried to prove that the appellant was
in possession of MOs 1 to 4 and found that he was in
possession of the contraband article seized by the police, it is
the duty of the prosecution to prove the seizure of the
contraband article and taking of the sample and other
actions followed by PW3 were in accordance with the
provisions of the Abkari Act. Hence, this Court is of the view
that if the mandatory provision was not complied with, it will
vitiate the proceedings followed by PW3. Another question
may come whether non-compliance of Section 36 cause any
prejudice to the appellant. In this context, the learned Public
Prosecutor placed reliance on the judgment of this Court
reported in Job v. State of Kerala (1991 (1) KLT 491). In
the above judgment, a learned Single Judge of this Court had
considered the decisions in Ramachandran’s Case (cited
CRL.A.NO.771/2006 11
supra) and held that the dictum laid down in the above
judgment is not applicable to search of a person, but it is
applicable to search of a place. But in Ramachandran’s
case, this Court had categorically held that the provision of
Section 99 or 102 of the Cr.P.C is different from that of
provision of Section 34 of the Abkari Act and this Court had
held that the legislative insistence for contradict compliance
with the proviso has to be considered while considering
Section 34 of the Act. The facts now proved in this case
would show that Pws2 and 3 had no case that two
independent witnesses were called or they were present for
watching the performance of PW3 and that apart this Court
had already found that PW2 has not stated even the
presence of PW1. In the light of the evidence of PW1 that he
was not present at the scene and he denied his signature in
Ext.P2, the case suggested to Pws 2 and 3 are also be
considered in this background. It is specifically suggested to
PWs 2 and 3 that the case was foisted against the appellant
and all the materials produced were substituted as if were
seized from the appellant. Though those suggestions were
denied by Pws 2 and 3 in the light of the fact that the
CRL.A.NO.771/2006 12
appellant was charge sheeted and faced trial for some
allegations and he was found guilty for the same offence in
a prior case, the possibility of substitution of the contraband
cannot be ruled out. Hence, non-compliance of Section 36 is
prejudicial to the appellant.
Hence, this Court is of the view that the judgment of the
trial court has to be set aside. Accordingly, the conviction
and sentence ordered against the appellant are set aside and
the appeal is allowed. The appellant is acquitted. The
appellant, accused, in S.C.No.447/2004 on the file of the
Additional District and Sessions Judge (Adhoc) Fast Track
Court-III, Pathanamthitta, shall be released forthwith, if he is
not required to be kept in jail in connection with any other case.
K. THANKAPPAN, JUDGE.
cl
CRL.A.NO.771/2006 13
K. THANKAPPAN, J.
CRL.A.NO. 771 OF 2006
JUDGMENT
10th January, 2007.
CRL.A.NO.771/2006 14