High Court Kerala High Court

Shaji vs State Of Kerala on 2 January, 2007

Kerala High Court
Shaji vs State Of Kerala on 2 January, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 1124 of 2006()


1. SHAJI, S/O.PRABHAKARAN, C.NO.9856,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

                For Petitioner  :SRI.SABU GEORGE(STATE BRIEF)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :02/01/2007

 O R D E R
                                      V. RAMKUMAR, J.


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                               CRL.A.NO.1124 OF 2006


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                               Dt.  JANUARY 2, 2007





                                            JUDGMENT

In this appeal preferred from the Central Prison,

Thiruvananthapuram, the appellant who was the sole accused

in S.C.No.945/2000 on the file of the Addl. Sessions Court

for Trial of Abkari Act Cases, Neyyattinkara, challenges

the conviction entered and the sentence passed against him

by the said court for offences punishable under sec.55(a)

and 55(i) of the Abkari Act.

2. The case of the prosecution is that on 18.7.1998 at

10.15 a.m. the accused was found in possession of 4 litres

of illicit arrack in a jerry can (having a capacity of 5

litres) and a glass tumbler (having a capacity of 150 ml.)

intended for clandestine sale and the accused has,

thereby, committed offences punishable under sec.55(a) and

55(i) 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

CRL.A.1124/2006 Page numbers

altogether examined 4 witnesses as PWs.1 to 4 and got

marked 5 documents as Exts.P1 to P5 and 2 material objects

as M.Os.1 and 2.

4. Since the court below did not consider this as 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 got marked Ext.D1 certified

copy of the relevant page of the thondy section register of

the committal court and also examined the thondy section

clerk of that court as D.W.1.

5. The learned Addl. Sessions Judge, after trial, as

per judgment dt. 6.9.2005 found the appellant guilty of the

offences charged against him and sentenced him 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 simple imprisonment for three months more. It is

the said judgment which is assailed in this appeal.

6. I heard Adv. Sri Sabu George, the learned counsel

who defended the appellant on State Brief, and Adv. Sri

Sivakumar, the learned Public Prosecutor who defended the

State.

7. The only point which arises for consideration in

this appeal is as to whether the conviction entered and the

CRL.A.1124/2006 Page numbers

sentence passed against the appellant are sustainable or

not?

THE POINT

8. PWs.1 and 2 are the independent witnesses to the

arrest, search and seizure in this case. Even though both

of them admitted their signatures in Ext.P1 mahazar

prepared by the detecting officer, they turned hostile to

the prosecution. P.W.3 is the Head Constable of Vizhinjam

Police Station who accompanied the detecting officer.

Exts.P1 to P3 and M.Os.1 and 2 were marked through him.

PW.4 was the Sub Inspector of Police, Vizhinjam Police

Station. He detected the offence. DW.1 is the thondy

section clerk attached to the J.F.C.M.-II, Neyyattinkara.

9. After hearing both sides and after a re-appraisal

of the oral and documentary evidence in the case, I am not

satisfied that the prosecution has succeeded in bringing

home the guilt of the accused beyond reasonable doubt.

10. Even though the evidence of PWs.3 and 4 regarding

the arrest of the accused and search and seizure of M.Os.1

and 2 from his possession could be relied on, it cannot be

conclusively said that the sample which was analysed in

this case and which was found to contain 28.04% by volume

of ethyl alcohol was indubitably drawn from M.O.1 jerry can

allegedly seized from the accused. Both according to PWs.3

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and 4 and also as per the recitals in Ext.P1 mahazar

allegedly prepared by PW.4 from the spot itself, PW.4 had

taken a sample of 250 ml. from the bulk quantity of

contraband liquor. But the only properties produced

before the committal magistrate on 18.7.1998 and received

as T299/98 were a black jerry can having a capacity of 5

litres and containing 4 litres of the alleged contraband

arrack and an empty glass tumbler having a capacity of 150

ml. Even though a third item which was described as a

sample bottle containing 250 ml. was entered in Ext.P3

property list, the same is scored off. Ext.D1 is the

certified copy of the thondy register maintained by the

committal magistrate. It also shows that only the

aforementioned two items were produced and received in

court on 18.7.1998. Even though on the right hand side

column there is an endorsement which reads “received

sample”, the date shown below the initials of that

endorsement bears the date 8.7.50 which does not make any

sense. Moreover, if, as a matter of fact, the sample which

was allegedly drawn by PW.4 from the spot itself had been

produced along with the other two material objects on

18.7.1998 itself, that would have been entered in column 2

of the thondy register as item No.3. But Ext.D1 gives the

description of only two items which are the black jerry can

CRL.A.1124/2006 Page numbers

and the glass tumbler. Ext.P4 certificate of chemical

analysis dt. 30.11.1998 refers to a letter dt. 14.10.1998

of the committal magistrate while despatching a sample

bottle containing 250 ml. of a clear and colourless liquid

alleged to be arrack. There is no evidence to indicate

that this sample despatched to the chemical examiner’s

laboratory was the same sample which was taken by PW.4 from

the spot itself or was taken by the office of the

magistrate where DW.1 was the thondy section clerk at the

relevant time. DW.1 has no case that any sample was taken

from the magistrate’s court. If, as a matter of fact, the

sample allegedly drawn by PW.4 from the spot had been

produced in court along with the other two items, one would

have expected PW.4 to submit a requisition or a forwarding

note requesting the magistrate to send the sample bottle to

the chemical examiner for analysis. No requisition or

forwarding note has been filed or marked in this case. It

is not known as to why a sample was despatched to the

chemical examiner’s laboratory by the committal magistrate

even without a requisition or a forwarding note by the

investigating agency. In a prosecution of this nature, a

conviction can be entered against the accused only if the

prosecution successfully proves that a sample was drawn

from the bulk quantity of the contraband liquor allegedly

CRL.A.1124/2006 Page numbers

carried by the accused and that the said sample which had

changed several hands before reaching the hands of the

chemical examiner had been forwarded to the chemical

examiner 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 (S.C.). There is thus

no acceptable link evidence to prove this aspect of the

matter. When there is no acceptable material to show that

the sample which was analysed under Ext.P4 certificate of

analysis was the sample drawn from the bulk quantity of the

contraband liquor allegedly carried by the accused, the

result of analysis disclosed by Ext.P4 certificate is of no

avail to the prosecution. The conviction entered and the

sentence passed against the appellant overlooking this

vital aspect of the matter cannot, therefore, be sustained

and are accordingly dislodged. The appellant is found not

guilty of the offences punishable under secs.55(a) and 55

(i) 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 in prison is found

necessary in connection with any other case.

In the result, this appeal is allowed as above.

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                              (V.RAMKUMAR, JUDGE)





mt/-


CRL.A.1124/2006    Page numbers





                                         V. RAMKUMAR, J.


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                                   CRL.A.NO.1124 OF 2006





                                                JUDGMENT





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                                       JANUARY 2, 2007