Mohanan Pillai vs State Of Kerala on 8 February, 2007

Kerala High Court
Mohanan Pillai vs State Of Kerala on 8 February, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 2436 of 2006(A)


1. MOHANAN PILLAI,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :ADV.K.SANILKUMAR(STATE BRIEF)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :08/02/2007

 O R D E R
                                        V. RAMKUMAR, J.

                              ---------------------------------------------

                                  CRL.A.NO. 2436 OF 2006

                              ---------------------------------------------

                                   Dt.   FEBRUARY 8, 2007




                                            JUDGMENT

In this appeal preferred from the Central Prison, Thiruvananthapuram, the

appellant who was the sole accused in S.C.No. 602/2002 on the file of the Addl.

Sessions Court (Abkari), Kottarakkara, challenges the conviction entered and the

sentence passed against the appellant for offences punishable under sec.55(a)

of the Abkari Act, read with secs.8(1) and 8(2) of the said Act.

2. The case of the prosecution is that on 8.12.1998 at about 6.30 p.m.

on a pathway near Karottu paddy fields within the limits of the Anchal Excise

Range, the accused was found carrying a 10 litre jerry can containing 5 litres of

illicit arrack and the accused has thereby committed offences punishable under

sec.55(a) read with sec.8(1) and (2) of the Abkari Act.

3. On the accused pleading not guilty to the charge framed against him

by the court below for the aforementioned offences, the prosecution was

permitted to adduce evidence in support of its case. The prosecution altogether

examined four witnesses as PWs.1 to 4 and got marked six documents as

Exts.P1 to P6 and one material object as M.O.1.

4. After the close of the prosecution evidence, the accused was

questioned under sec.313(1)(b) Cr.P.C. with regard to the incriminating

circumstances appearing against him in the evidence for the prosecution. He

CRL.A.2436/2006 2

denied those circumstances and maintained his innocence.

5. Since the court below did not consider it a fit case for recording an

order of acquittal under sec.232 Cr.P.C., the accused was called upon to enter

on his defence and to adduce any evidence which he might have in support

thereof. The accused did not adduce any defence evidence.

6. The learned Addl. Sessions Judge, after trial, as per judgment dt.

8.11.2006 found the appellant guilty of the offences and sentenced him to

undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh and,

on default to pay the fine, to suffer rigorous imprisonment for three months more.

It is the said judgment which is assailed in this appeal.

7. I heard Adv. Sri K.Sanilkumar, the learned counsel who defended the

appellant on State Brief, and Adv. Sri K.S.Sivakumar, the learned Public

Prosecutor who defended the State.

8. The only point which arises for consideration in this appeal is as to

whether the conviction entered and the sentence passed against the appellant

are sustainable or not?

THE POINT

9. PW.1 is the Excise Inspector, Anchal who detected the offence. PW.2

is the Excise Preventive Officer who accompanied PW.1 on patrol duty. PW.3 is

the Preventive Officer who produced the accused and the contraband article

before court. PW.4 is the Excise Inspector who had laid the charge.

10. After bestowing my anxious consideration to the oral and

CRL.A.2436/2006 3

documentary evidence in the case I am of the view that the prosecution has not

succeeded in bringing home the guilt of the accused beyond reasonable doubt.

Even though the evidence of PWs.1 and 2 can be relied on to hold that the

accused was found in possession of a jerry can containing some liquid

suspected to be illicit arrack, the prosecution can succeed in securing a

conviction only if it is proved that a sample drawn from the said liquid and

forwarded to the chemical examiner through court in a tamper-proof condition

was found to contain the requisite percentage of ethyl alcohol to conclude that it

was illicit arrack.

11. Going by the recitals in Ext.P1 contemporaneous mahazar prepared

by PW.1 from the scene of detection itself, he had drawn a sample of 375 ml. in

a bottle having a capacity of 375 ml. and both the balance contraband liquor in

the jerry can as well as the sample bottle were sealed and produced before the

court on 9.12.1998. This part of the testimony of PWs.1 and 2 as corroborated

by the recitals in Ext.P1 mahazar is amply proved by Ext.P5 property list as per

which on 9.12.1998 the sealed jerry can as well as the sealed sample bottle

were received in court. On 9.12.1998 itself the learned committal magistrate

directed return of the jerry can together with the liquor inside it to the Excise

Inspector, Anchal for keeping possession of the same until further orders for the

reason that there was dearth of space in the thondy room of the court. The only

other material produced by the prosecution is Ext.P6 certificate of chemical

analysis to show that the sample analysed thereunder showed that the liquid

CRL.A.2436/2006 4

contained 27.15% by volume of ethyl alcohol. It is not known as to how and why

a sample was forwarded to the chemical examiner as per a letter dt. 8.1.1999

seen referred to in Ext.P6 certificate of chemical analysis. There was no

requisition or forwarding note proved or marked in this case. Even without a

request from the investigating agency it is not known as to why a sample was

forwarded by the committal magistrate on 8.1.1999. No doubt, PW.1 during his

evidence stated before court that he had submitted a requisition for forwarding

the sample to the chemical examiner for analysis and report. But no attempt

whatsoever was made to mark the office copy of the alleged requisition. Neither

the prosecutor who was in charge of the case nor the trial Judge took any pains

to see whether there was, in fact, the office copy of the requisition available in

the court records so that the same could be marked as an exhibit.

12. Even if there was such a requisition, there is yet another

unsurmountable hurdle for the prosecution. After the receipt of the properties

before the magistrate on 9.12.1998, there is no document before court to

indicate whether any direction was given by the magistrate to despatch the

sample bottle to the chemical examiner much less any compliance of the said

direction. Ordinarily it is the thondy section clerk who is the custodian of the

properties produced before a criminal court. It is such a member of the court

staff who is expected to deal with the properties received in a case. In the

normal course, if a requisition or a forwarding note had been submitted by the

investigating agency, the magistrate should have directed the thondy section

CRL.A.2436/2006 5

clerk to despatch the sample (if already produced before court) or to draw a

fresh sample from the bulk quantity and despatch the same to the chemical

examiner for analysis. Absolutely no material has been produced to show that

any such direction was given and such direction was complied with. After the

receipt of the properties in court on 9.12.1998 what is seen is that a sample is

despatched on 8.1.1999 from the court of the committal magistrate and the

same is received in the chemical examiner’s laboratory on 12.1.1999. The court

is kept in the dark as to who had despatched the sample and on what date and

also as to whether it was the very same sample bottle which was produced in

court on 9.12.1998 that was forwarded to the chemical examiner’s laboratory.

These are all matters for record. It is only when a sampling has been ordered or

when the sample (already before court) has been directed to be forwarded to

the chemical examiner, could a presumption be drawn that official acts have

been regularly performed in view of sec.114(e) of the Evidence Act. For want of

this link evidence, the prosecution has to fail. The conviction entered and the

sentence passed against the appellant by the court below overlooking these vital

aspects of the matter cannot, therefore, be sustained and are accordingly

dislodged. The appellant is found not guilty of the offence punishable under

sec.55(a) read with sec.8(1) and 8(2) of the Abkari Act and is acquitted

thereunder. He is set at liberty. He shall be released from the prison forthwith

unless his continued detention is found necessary in connection with any other

case.

CRL.A.2436/2006 6

13. Before parting with this case I am constrained to observe that the

prosecution in this case had to fail not on account of any lapses or omission on

the part of the investigating officer. If the detecting officer had submitted a

forwarding note or a requisition for forwarding the sample bottle produced by him

along with the properties to the chemical examiner as PW.1 would have it, it was

the bounden duty of the prosecutor in charge of the case to have the office copy

of such forwarding note or requisition marked as an exhibit. The trial Judge also

had a responsibility in such matters. PW.1 had deposed before court that he

had filed a requisition which can only be in duplicate. The original one will

accompany the sample to the office of the chemical examiner and the duplicate

will be retained in the court of the magistrate. This office copy of the requisition

or forwarding note should have been traced out and marked in the case. Yet

another lapse is the usual omission which takes place in the committal court.

There is absolutely no contemporaneous record maintained in the court of the

committal magistrate to show that a direction was given to the thondy section

clerk to despatch the sample bottle to the chemical examiner in a temper-proof

condition and the compliance of such direction. In the absence of any

contemporaneous record, the thondy section clerk concerned could have been

either cited and examined as an additional prosecution witness if the public

prosecutor in charge of the case was really vigilant and had evinced a sense of

responsibility. That also has not been done and the consequence has been

failure of justice. Committal magistrates should take care to see that any

CRL.A.2436/2006 7

proceedings with respect to properties produced before them are properly

recorded so that there is no room for criticism that judicial and official acts have

not been properly done. It is the duty of the magistrate to preserve the office

copy of the covering letter which is sent along with the properties to the chemical

examiner so that such office copies are made available during trial to be marked

as exhibits. There has to be written record indicating sampling, if any, done and

the despatch of the sample so taken or the sample which has already been

produced before court so that it does not give room for any adverse comment

during trial. It is for want of the link evidence that the prosecution in this case

had to fail. Some sense of responsibility is expected in the trial Judges also.

After all, the purpose of conducting trial is not merely to see that the person in

the dock is acquitted due to the lapses on the part of the investigating agency or

the prosecuting agency, but to see that a person who is really guilty is brought to

justice.

The registry shall either forward a copy of this judgment to all Magistrates

and Sessions Judges or issue an official memorandum highlighting the duties

and responsibilities of the magistrates and trial judges while dealing with

prosecutions under the Abkari Act.









                                                             (V.RAMKUMAR, JUDGE)


CRL.A.2436/2006    8





mt/-


CRL.A.2436/2006    9





                                           V. RAMKUMAR, J.

                        ---------------------------------------------

                                 CRL.A.NO. 2436 OF 2006

                        ---------------------------------------------

                                  Dt.   FEBRUARY 8, 2007




                                                    JUDGMENT


Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *