IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1359 of 2006()
1. RAJESH, S/O.KRISHNAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :VINITHA PRASANNAN(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :11/12/2006
O R D E R
V. RAMKUMAR, J.
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CRL.A.NO.1359 OF 2006
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Dt. DECEMEBR 11, 2006
JU
DGMENT
In this appeal preferred from the Central Prison,
Thiruvananthapuram, the appellant who was the 2nd accused in
S.C.No.1169/2005 on the file of the Addl. Sessions Court (for trial of
Abkari Act cases), Neyyattinkara, challenges the conviction entered
and the sentence passed against the appellant for an offence
punishable under sec.58 of the Abkari Act.
2. The case of the prosecution is that on 8.2.2004 at about 3.30
p.m. on the public road leading to the Parayil temple at a spot situated
about 600 metres to the south of Pamamcodu junction within the
limits of the Nemom Police Station, the two accused persons were
found in possession of 4 litres of illicit arrack in a 5 litre jerry can and a
glass tumbler and the sale proceeds obtained from the retail sale of
illicit arrack. The accused have thereby committed offences punishable
under secs.55(a) and 55(i) of the Abkari Act.
3. On the accused pleading not guilty to the charge framed
against them by the court below for offences punishable under secs.55
CRL.A.1359/06 2
(a) and 55(i) of the Abkari Act, the prosecution was permitted to
adduce evidence in support of its case. The prosecution altogether
examined 6 witnesses as PWs.1 to 6 and got marked 7 documents as
Exts.P1 to P7 and 2 material objects as M.Os.1 and 2.
4. After the close of the prosecution evidence, the accused were
questioned under sec.313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against them in the evidence for
the prosecution. They denied those circumstances and maintained
their innocence.
5. The court below did not consider it a fit case for recording an
order of acquittal under sec.232 Cr.P.C. The accused were, therefore,
called upon to enter on their defence and to adduce any evidence
which they might have in support thereof. They did not adduce any
defence evidence.
6. The learned Addl. Sessions Judge, after trial, as per judgment
dt. 12.5.2006 found both the accused guilty of an offence punishable
under sec.58 of the Abkari Act and sentenced them each to undergo
rigorous imprisonment for a period of 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. It is the said judgment which is
assailed in this appeal by the 2nd accused.
CRL.A.1359/06 3
7. I heard Adv. Smt.Vinitha Prasannan, 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. PWs.1 and 2 are the independent witnesses to the search and
seizure and the attestors to Ext.P1 mahazar. Both of them turned
hostile to the prosecution. PW.3 is the police constable who
accompanied the detecting officer. PW.4 was the Sub Inspector of
Nemom Police Station who allegedly detected the offence. PW.5 was
the Sub Inspector who succeeded PW.4. Ext.P7 remand report
pertaining to the 1st accused was marked through him. PW.6 was the
Sub Inspector who verified the investigation and laid the charge before
court.
10. After an anxious re-appraisal of the oral and documentary
evidence and after hearing both sides, I am of the view that the
prosecution has not succeeded in establishing the guilt of the appellant
beyond reasonable doubt. Ext.P1 is the contemporaneous mahazar
said to have been prepared by PW.4 from the scene of detection itself.
CRL.A.1359/06 4
Going by the recitals in Ext.P1 it was the 2nd accused who was holding
the jerry can containing the contraband liquor in one hand and the
glass tumbler in the other and when PW.4 and his police party
approached the 2nd accused and questioned him, the 2nd accused
revealed his name as Rajesh and also revealed the name of the other
person who had made good his escape seeing the police party as
Manoharan (1st accused). Ext.P1 further states that the 2nd accused
gave a statement to PW.4 to the effect that since he did not have
palms on both hands, he was vending arrack with the help of the 1st
accused who had taken to his heels. If the 2nd accused was incapable
of vending arrack or even holding arrack on account of the reason that
he did not have both his palms, it is inconceivable as to how the police
party headed by PW.4 saw the 2nd accused holding the jerry can having
a capacity of 5 litres in one hand and a glass tumbler in the other
hand. The position was made further worse by PW.4 who was giving
evidence after two years of detention. PW.4 would depose that when
his police party reached the spot, the 1st accused was pouring the
contents of the can into a glass tumbler and seeing the police party the
1st accused took to his heels leaving the can and the glass tumbler
there itself in the vicinity of the 2nd accused who was standing there.
This is a version which is diametrically opposite to what is recited in
CRL.A.1359/06 5
Ext.P1 contemporaneous mahazar. If the 2nd accused was incapable
of carrying the can or the glass tumbler for want of a palm in both his
hands, it cannot be held that the 2nd accused was holding the can
containing the contraband liquor in one hand or the glass in the other.
Thus the alleged possession of the contraband liquor by the 2nd
accused itself is in doubt.
11. Even assuming that the 2nd accused could be said to have
been found in possession of the contraband liquor, the prosecution has
another unsurmountable hurdle in bringing home the guilt of the 2nd
accused. In Ext.P1 mahazar it is stated that PW.4 took a sample of
the contraband liquor from the jerry can from the spot itself. Ext.P1
does not mention the quantity of the sample or the capacity of the
bottle in which the sample was taken. But when it came to the stage
of evidence, PW.4 deposed that he took 180 ml. as sample of the
contraband liquor in a bottle of 375 ml. capacity and produced the
same in court. The recitals in Ext.P1 would go to show that both the
jerry can containing the contraband liquor and the sample bottle were
sealed. But what is discernible from Ext.P5 property list is that the
four items of properties which were produced before court on 9.2.2004
and received as T60/04 were the following:-
1. A white jerry can having a capacity of 5 litres and containing
CRL.A.1359/06 6
about 4 litres of illicit arrack.
2. A glass tumbler having a volume of 150 ml.
3. A Reliance mobile phone.
4. A currency note of Rs.50/- denomination bearing the number
8EK72760.
Ext.P5 property list shows that the sample allegedly drawn by PW.4 in
a separate bottle and which was allegedly sealed from the spot itself
did not reach the court. Even the 5 litre jerry can which was produced
in court is not shown as sealed.
12. The prosecution relies on Ext.P6 certificate of chemical
analysis dt. 25.5.2005 to contend that the sample taken from the
contraband liquor allegedly carried by the two accused persons
contained 22.74% by volume of ethyl alcohol. It is not shown as to
which was the sample sent from the committal court to the chemical
examiner’s laboratory and who took the sample and on what date.
Ext.P6 certificate of analysis refers to a letter dt. 31.5.2004 of the
J.F.C.M.-I, Neyyattinkara. There is no document recording the
proceedings of the committal magistrate to indicate whether any
sample was drawn from the can allegedly containing contraband liquor
produced as item No.1 in the property list. Hence, even if the said can
which was not received in court in a sealed condition could be
CRL.A.1359/06 7
presumed to be the can allegedly seized from the possession of the
appellant, there is nothing to show that a sample was drawn from the
said can by any member of the court staff attached to the J.F.C.M.
Court-I, Neyyattinkara. The thondy section clerk who is ordinarily the
custodian of all properties produced in a court was neither cited nor
examined to prove the drawing of sample and the despatch of the
same to the chemical examiner’s laboratory in a tamper-proof
condition. It is well settled that when properties change several
hands before finally reaching the hands of the chemical examiner, the
prosecution has a duty to establish that it was the same property
which was allegedly seized from the accused which eventually found its
way into the hands of the chemical examiner and that too in a tamper-
proof condition (vide State of Rajasthan v. Daulat Ram – AIR 1980 SC
1314 and Valsala v. State of Kerala – 1993 (2) KLT 550). In the
absence of this link evidence, it cannot be said that the prosecution
has succeeded in establishing that the appellant was found in
possession of contraband liquor. The conviction entered and the
sentence passed against the appellant 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.58 of the Abkari Act and is acquitted thereunder. He is set
CRL.A.1359/06 8
at liberty. He shall be released from the prison forthwith unless his
continued detention is found necessary in connection with any other
case.
In the result, this appeal is allowed as above.
(V.RAMKUMAR, JUDGE)
mt/-
CRL.A.1359/06 9
V. RAMKUMAR, J.
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CRL.A.NO.1359 OF 2006
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Dt. DECEMEBR 11, 2006
JUDGMENT