High Court Kerala High Court

Monachan vs State Of Kerala on 30 July, 2007

Kerala High Court
Monachan vs State Of Kerala on 30 July, 2007
       

  

  

 
 
  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.
               ------------------------------------------
                     CRL.A.NO.1116 OF 2007
               ------------------------------------------
             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

CRL.A.NO.1116/2007 8

K. THANKAPPAN, J.

CRL.A.NO.1116 OF 2007

JUDGMENT

30th day of July, 2007.