IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1128 of 2006(B)
1. SASIDHARAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :ADV.LIJU V STEEPHAN(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :01/01/2007
O R D E R
V. RAMKUMAR, J.
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CRL. APPEAL NO. 1128 OF 2006
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Dated, this the Ist day of January 2007
JUDGMEN
T
In this appeal preferred from the Central Prison,
Thiruvananthapuram, the appellant who was the sole accused in S.C.
No. 787/2001 on the file of the Addl. Sessions Judge, Fast Track
Court (Adhoc) No. I, Thiruvananthapuram, challenges the conviction
entered and the sentence passed against him for an offences
punishable under Section 55 (a) of the Abkari Act.
2. The case of the prosecution is that on 15-05-1998 at 5
p.m. while the Excise Preventive Officer (P.W.5) attached to the
Excise Office, Kazhakuttom was proceeding on patrol duty along
the Panachamoodu-Murukkumpuzhakadavu road they came across
the accused carrying a black plastic can having a capacity of 2 = litres
containing two litres of illicit arrack and that the accused has thereby
committed offences punishable under Sections 8(1) and 58 of the
Abkari Act.
3. On the accused pleading not guilty to the charge framed
against him by the court below for an offence punishable under
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Section 55(a) of the Abkari Act, the prosecution was permitted to
adduce evidence in support of its case. The prosecution altogether
examined 6 witnesses as P.Ws 1 to 6 and got marked 5 documents
as Exts. P1 to 5 and one material objects as Mo 1.
4. After the close of the prosecution evidence the accused
was questioned under Section 313 (1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the evidence for
the prosecution. He denied those circumstances and maintained his
innocence. He submitted before Court that he was running a mobile
tea stall in the Murukkumpuzhakadavu and was falsely implicated in
this case on account of the enmity between his family and that of
P.W.5.
5. Since the trial court did not consider this a fit case for
recording an order of acquittal under Section 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 dated 13-2-2006 found the appellant guilty of the offences
charged against him and sentenced him to undergo rigorous
imprisonment for 1 = years and to pay a fine of Rs. 1,00,000/- and
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on default to pay the fine, to suffer rigorous imprisonment for a
further period of six months. It is the said judgment which is assailed
in this appeal by the sole accused.
7. I heard Advocate Sri. Liju V. Stephen, the learned counsel
who defended the appellant on State Brief and Advocate Sri.
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. P.Ws 1 and 6 are the two independent witnesses to the
arrest, search and seizure. Both of them turned hostile to the
prosecution. While P.W.1 admitted the signature in Ext.P1
contemporaneous mahazar prepared by the detecting officer, P.W.6
denied his signature appearing thereon. P.W.2 is the Excise Guard
who accompanied the the detecting officer. P.W.3 who was the
Excise Inspector of Kazhakkoottam Excise Range, registered Ext.P2
report. P.W.4 is the successor in office of P.W.3 and it was P.W.4 who
filed final report before court. Ext.P3 Chemical Examination report
dated 19-06-1999 to the effect that the sample in question contained
13.26 percent by volume of Ethyl Alcohol was proved through
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P.W.4.
10. After hearing both sides and after bestowing my anxious
consideration to the oral and documentary evidence, I am not satisfied
that the prosecution has succeeded in bringing home the guilt of the
accused beyond reasonable doubt.
11. It is true that P.Ws.1 and 6 who are the independent
witnesses to the arrest, search and seizure turned unfriendly to the
prosecution. But that does not in any way affect the core of the
prosecution case regarding the arrest, search and seizure in the light
of the credible testimonies of P.Ws 2 and 5. Moreover courts are not
unfamiliar with such independent witnesses turning disloyal to the
prosecution. If the evidence of the detecting officer is free from
blemishes and is otherwise trustworthy, his evidence can be
believed and acted upon notwithstanding the hostility shown by such
independent witnesses. (See Sivaraman v. State of Kerala –
1981 KLT (SN) 9). But merely by proving the arrest and seizure,
the prosecution cannot expect a conviction for the alleged offence
unless it is proved beyond doubt that the liquid in the jerry can
allegedly seized from the possession of the accused contained illicit
arrack Even though the properties seized by P.W.5 from the accused
reached the court on 16-5-1998, admittedly, P.W.5 had not drawn
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any sample from the alleged contraband liquor contained in the jerry
can said to have been carried by the accused. Neither P.W1 nor P.Ws
3 and 4 who were in-charge of the investigation had made any
requisition to the court to draw samples from the jerry can produced
in this case on 16-5-1998. No forwarding note also was submitted
before court requesting the Magistrate to take sample from the jerry
can and forward it to the chemical examiner for analysis. It is not
known whether the committal Magistrate was taking sample suo moto
without any request by the prosecuting agency and was despatching
the same to the chemical examiner. Ext. P3 chemical examination
report shows that a sample containing about 200 ml. of a clear and
colourless liquid was despatched from J.F.C.M. – II, Attingal as per
letter dated 25-9-1998. It is not known as to whether the said
sample was drawn from the said jerry can, allegedly seized from the
accused and produced before court. Even if the said sample was
drawn from the jerry can there is no evidence to show who drew the
sample and on what date. There is also no evidence before court to
show the date of despatch of the sample . In a case of this nature
the prosecution can succeed only if it establishes that the sample
which had changed several hands had ultimately reached the hands
of the chemical examiner in a tamper proof condition and that it was
CRL. APPEAL NO. 1128 OF 2006 -:6:-
the same sample which was drawn from the contraband liquor
allegedly seized from the accused. (Vide State of Rajasthan v.
Daulat Ram – AIR 1980 SC 1314 and Valsala V. State of Kerala
– 1993 (2) KLT 550 SC).
11. In this case there is absolutely no link evidence to establish
that a sample was drawn from the jerry can allegedly seized from the
accused and that the said sample reached the hands of of the
chemical analyst in a tamper proof condition. The conviction
recorded and the sentence passed by the court below overlooking
the above vital aspects cannot be sustained and are accordingly
dislodged.
12. The appellant is found not guilty of the offence
punishable under Sec. 55(a) of the Abakri Act and is acquitted
thereunder. He is set at liberty. He shall be released from prison
forthwith unless his continued detention is needed in connection with
any other case.
In the result, this Criminal Appeal is allowed as above.
V. RAMKUMAR,
(JUDGE)
ani
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V. RAMKUMAR, J.
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CRL. APPEAL NO. 1128 OF 2006
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Dated, this the
1st day of January 2007
JUDGMENT