IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 960 of 2002()
1. AJAYAN S/O. VELAYUDHAN,
... Petitioner
2. PRABHAKARAN, S/O. VELAYUDHAN,
3. MANOHARAN S/O. KEEZHARA KANDUNNI,
4. SUBRAMANIAN, S/O. VELAYUDHAN,
5. DHANANJAYAN, S/O. ARAVINDHAKSHAN,
6. LOHIDAKSHAN S/O. SUBRAN,
Vs
1. STATE OF KERALA, REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :02/06/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.A.NO.960 OF 2002
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Dated this the 2nd day of June, 2009
JUDGMENT
This appeal is preferred against the conviction and
sentence passed by the 3rd Additional Sessions Judge(Fast Track
Court-I,) Thissur in S.C.No.341/2000. Altogether there are 7
accused, out of which the 7th accused is absconding. The court
below found all the six guilty under Section 55 (a) of the
Abkari Act and thereafter convicted and sentenced them to
undergo R.I for a period of two years and to pay a fine of
Rs.One lakh each. It is against that decision accused Nos.1
to 6 have come up in appeal. The points that arise for
determination are (1) whether the court below was justified in
holding that there is sufficient evidence and materials to
convict the accused under Section 55(a) of the Abkari Act. (2)
whether the conviction and sentence requires interference.
2. Points 1 and 2:
The brief facts necessary for the disposal of the appeal
are as follows:
3. On 9.7.1998 while on patrol duty, the police got the
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information of selling of illicit arrack and therefore they
proceeded and at about 9.30 p.m near a fallen cashew tree in
the vacant plot of Karappan they found accused Nos.1 to 5 in
furtherance of their common intention to sell arrack by
possessing 10 liters of each in 5 jerry can and accused 6 and
7 possessed a empty sack and 2 liters of jerry can and
thereby committed the offences punishable under the Act. The
prosecution, according to the learned counsel for the appellant,
had miserably failed to prove the property list, seizure and
further that seizure is quite illegal and a conviction cannot
be based on the basis of such. It is also mentioned about the
fact that one cannot say whether the bottles sent were is from
the liquid collected from the accused. The material document
is Ext.P1. In Ext.P1, we find that the police had proceeded to
the spot and had caught hold of accused Nos.1 to 5. But, no
where in Ext.P1 there is recital to the effect that the samples
taken were sealed and signed in the presence of the accused
and witnesses. The seizure is at about 9.30 p.m on 9.7.1998.
The property list would show that it was produced before the
court on 10.7.1998. The property list is seen prepared on
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10.7.1998 and there are 4 items of material objects produced
before the court. The second item relates to the alleged
sealed bottles taken and according to the property list, 10
bottles i.e., two from each can were taken as sample. Others
are larger containers of 10 liters, a torn gunny bag and a
black cannas. Learned Magistrate has ordered to verify and
receive it on 10.7.1998 and submission is given to the
Magistrate that except samples, all items may be entrusted to
the S.I. of Police for safe custody and the property was
received by the Junior Superintendent on 14.7.1998. Learned
counsel for the accused had brought to my notice the
following for kind consideration.
4. According to the prosecution, 10 bottles of arrack had
been sampled and sealed. But, according to the prosecution,
5 had been sent for chemical analysis. The remaining 5
bottles, as per the endorsement in the search list, have
necessarily to be in the custody of the court. No explanation is
forthcoming where these bottles are. There is a case for the
accused that the samples alleged to have taken is not properly
sealed or signed by any person. But, I find from the chemical
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analysis report that the 5 bottles received there were sealed
and it was tagged. When a contention is raised, there must
be some explanation tendered with respect to the five
bottles which is supposed to be in the court. Suppose those
bottles had been produced, the contention of the accused that
none of the bottles had been properly sealed would have gone
to insignificance. If there were proper seals and that the
bottles were available certainly an attempt should have been
made to produce them. Another important point is that it is
the definite case of the prosecution that two bottles of sample
were taken from each of the containers from each of the 5
accused. It is the paramount duty of the prosecution to prove
that the 5 bottles sent were the samples taken from the 5
containers. There are absolutely no materials to show that it is
so. Therefore, one cannot say which were the samples that
were sent for chemical analysis and of which accused those
sample dealings and therefore it had created a considerable
amount of confusion which entitles under law that the benefit
should go in favour of the accused. PW1 when examined
had deposed before the court about the sampling but when
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he was questioned he is not able to say why it had not been
stated so in Ext.P1. It has also come out from his evidence
that the material object entrusted back to the police for safe
custody to be produced did not contain the seal but only a
part of the label was seen in MO1(a). So, it also creates
suspicion in the mind of the court. Forwarding note is a
material document which would show what materials are to
be sent for chemical examination and it would have the
description. But strangely, even though there are lot of
confusions created, that document is not attempted to be
marked at all. So, there is confusion created. When cross
examined, he would say that there is no reason in not
recording that labels had been affixed. Sealing of the cans is
also equally absent in the scene mahazer and according to
Pw1, there is no reason for the same. Now, this Court in the
decision reported in Sasidharan v. State of Kerala (2007 (1)
KLT 720) had dealt with the way in which the sampling, sealing
etc has to be done. It was a case where there was no evidence
to show that sample was taken from the container which was
seized by the authorities The court officials were also not
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examined and therefore, the court held that it is not a proper
seizure and sealing and therefore granted the benefit of doubt
to the accused.
5. Learned trial judge had not considered these matters
very seriously. But it is stated that it did not cause any
prejudice to the accused and further the chemical analysis
report shows the presence of alcohol. But the material point
which the prosecution has to establish is to the effect that the
liquid which was seized from them was properly seized and it
was part of that liquid that had been sent for chemical analysis
report. As discussed by me earlier in this case, 5 samples
alleged to be taken are missing, only 5 bottles alone were
sent for chemical analysis report. Even the forwarding note is
not marked before the court. So all these things create a
doubt in the mind of the court regarding the actual seizure,
sealing and sending for chemical analysis. When it is so, it is
inevitable that the benefit of doubt has to go the accused.
Therefore, I am constrained to apply the said theory and
grant the benefit of doubt to the accused in this case.
Unfortunately, all is not well with the prosecution story.
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Therefore, conviction and sentence passed by the trial court is
set aside and the benefit of doubt is given to the accused and
accused Nos.1 to 6, who are the appellants before this Court,
are found not guilty of the offence under Section 55 (a) of the
Abkari Act and they are acquitted and set at liberty.
M.N. KRISHNAN, JUDGE
cl
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