IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1160 of 2006()
1. SHAJI, S/O. JANARDHANAN
... Petitioner
Vs
1. STATE OF KERALA, REP. BY
... Respondent
For Petitioner :SRI.SASTHAMANGALAM S. AJITHKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :28/03/2007
O R D E R
V. RAMKUMAR, J.
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Crl. Appeal Nos. 1160 of 2006, 1308 of 2006
&
2039 of 2006
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Dated, 28th day of March 2007
JUDGMENT
Accused Nos. 3, 2 and 1 respectively in S.C. No. 129/’01 on the file
of the Addl. Sessions Court For The Trial of Abkari Act Cases,
Neyyattinkara, are respectively the appellants in these Appeals. Crl. A.
Nos. 1160 of 2006 and 1308 of 2006 are preferred by accused Nos. 3
and 2 through private counsels. Crl. Appeal No. 2039 of 2006 is preferred
by the first accused from the Central Prison, Thiruvananthapuram and
represented through State Brief.
2. In these appeals, the three accused persons challenge the
conviction entered and the sentence passed against them for an offence
punishable under Section 58 of the Abkari Act.
3. The case of the prosecution is that on 14-3-1998 at about 7
p.m. the Sub Inspector of Police, Neyyardam and his police party while
on patrol duty stumbled upon an autorickshaw bearing Reg. No. KL 01 L
8589 driven by the 3rd accused and carrying accused Nos. 1 and 2 as
passengers along with the jerry can having a capacity of 10 litres. He
Crl. Appeal Nos. 1160
of 2006, 1308 of 2006 & 2039 of 2006 -:2:-
signalled the autorickshaw to stop and, on interrogation, the accused
persons admitted that the jerry can contains arrack. Thereupon the Sub
Inspector arrested the accused persons and seized the jerry can under a
mahazar prepared from the spot. The accused as well as the properties
were taken to the Neyyardam Police Station from where a case was
registered as Crime No. 32/98. The accused were produced before the
J.F.C.M., Kattakkada and the properties were produced before the
Magistrate, subsequently. The sample taken therefrom and dispatched
to the Chemical Examiner’s Laboratory, Thiruvananthapuram through
court revealed that the sample contained 14.80 percent by volume of
Ethyl Alcohol. The accused have thereby committed an offence
punishable under Sec. 58 of the Abkari Act.
4. On the accused pleading not guilty to the charge framed
against them by the court below for the aforementioned offence, the
prosecution was permitted to adduce evidence in support of its case. The
prosecution altogether examined 6 witnesses as P.W.s 1 to 6 and got
marked 9 documents as Exts. P1 to P9 and 3 material objects as Mos 1
and 3.
5. After the close of the prosecution evidence, the accused were
Crl. Appeal Nos. 1160
of 2006, 1308 of 2006 & 2039 of 2006 -:3:-
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.
6. Since the learned Addl. Sessions Judge did not consider this
a fit case for recording an order of acquittal under Sec. 232 Cr.P.C. the
accused persons were 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.
7. The learned Addl. Sessions Judge, after trial, as per judgment
dated 8-6-2006 found all the appellants guilty of the offence and
sentenced them to rigorous imprisonment for three years and to pay a fine
of Rs. 1,00,000/- each and on default to pay the fine, to suffer rigorous
imprisonment for six months. It is the said judgment which is assailed in
these appeals.
8. I heard Advocate Sri. Sasthamangalam Ajithkumar, the
learned Counsel appearing for the appellant in Crl.A. 1160 of 2006 and
Adv. Sri. R.T. Pradeep, the learned counsel appearing for the appellant in
Crl. Appeal No. 1308 of 2006 and Adv. Sri. P.V. Vijayakumar, the
Crl. Appeal Nos. 1160
of 2006, 1308 of 2006 & 2039 of 2006 -:4:-
learned counsel who defended the appellant in Crl.Appeal No. 2039 of
2006 on State Brief. I also heard Adv. Sri. K.S. Sivakumar, the learned
Public Prosecutor who defended the State.
9. The only point which arises for consideration is as to whether
the conviction entered and the sentence passed against the appellant are
sustainable or not ?
THE POINT:-
10. P.Ws 1 and 2 are the independent witnesses who had figured
as attestors to Ext.P1 mahazar prepared by the detecting officer. Even
though both of them admitted their signatures in the mahazar they turned
hostile to the prosecution. P.W.3 is the owner of the autorickshaw
examined to say that it was the 3rd accused who was driving the
autorickshaw on the fateful day. P.W.4 was the head constablle of
Neyyardam Police Station who was in the company of the detecting
officer. P.W.5 was the Sub Inspector of Police, Neyyardam who detected
the offence. P.W.6 was the Thondi Section Clerk attached to the
J.F.C.M., Court, Kattakkada which was the committal court in respect of
this case.
11. After an anxious consideration of the oral and documentary
Crl. Appeal Nos. 1160
of 2006, 1308 of 2006 & 2039 of 2006 -:5:-
evidence in the case and after hearing both sides, I am of the view that the
prosecution has not succeeded in establishing the guilt of the accused
beyond reasonable doubt. Notwithstanding the disloyalty shown by P.W
1 and 2, the evidence of P.Ws 4 and 5 can be accepted to hold that the
accused persons along with MO2 jerry can were in the autorickshaw and
that on the reasonable belief that the jerry can contained illicit arrack,
P.W. 5 had arrested the accused and seized the jerry can together with the
bag and autorickshaw under Ext.P1 contemporaneous mahazar prepared
by him from the spot itself. But the further question is whether the
contents of MO2 jerry can has conclusively been proved to be illicit
arrack so as to justify the conviction.
12. Eventhough P.W.5 claims to have seized the contraband
liquor at 7 p.m. on 14-3-1998, the properties were produced before court
only on 23-3-1998. Except for a bald statement by P.W.5 from the
witness box that until their production in Court the properties were in his
custody, he has not given any satisfactory explanation as to why he kept
the properties in his custody for 9 days. There is therefore, infraction of
Sec. 102 (3) Cr.P.C. That apart, going by the recitals in Ext.P1 mahazar,
P.W.5 had, before seizing the jerry can, sealed the same. But the jerry
Crl. Appeal Nos. 1160
of 2006, 1308 of 2006 & 2039 of 2006 -:6:-
can described as Item I in Ext.P5 property list is not shown as sealed.
This means that there is no acceptable evidence to show that it was the
very same jerry can which was seized after sealing the same which was
produced before court 9 days after the alleged seizure.
13. The prosecution would have it that the sample taken from the
above jerry can by the committal Magistrate and dispatched to the
Chemical Examiner has proved the fact that the contents of the jerry can
was illicit arrack. The prosecution has not produced any forwarding note
or requisition by the investigating agency requesting the committal
Magistrate to take sample from MO2 and despatch the same to the
chemical examiner for report. In the absence of any such request from
the investigating agency it is not known as to why the committal
Magistrate took the sample and despatched the same to the chemical
examiner. P.W.6 is the thondi Section Clerk who has deposed that on the
strength of the orders of the Magistrate he took the sample . Neither
Ext.P5 property list nor Ext.P9 certified extract of the relevant page of
the thondi section register shows any endorsement by the Magistrate to
take sample from the jerry can produced in this case. On the contrary,
both Exts.P5 and P9 contain endorsement by the Magistrate on 23-3-1998
Crl. Appeal Nos. 1160
of 2006, 1308 of 2006 & 2039 of 2006 -:7:-
directing that the properties be kept in the custody of the Station House
Officer until further orders. If that direction of the Magistrate had been
promptly complied with, it is not known as to how P.W.6 could take a
sample. Even assuming that there was a direction by the Magistrate to do
so, P.W.6 does not say the date on which he took the sample or the
quantity drawn by him as sample and the mode of despatch of the same
to the chemical examiner. What Ext.P8 certificate of analysis shows is
that the sample was despatched to the chemical examiner along with a
covering letter of the Magistrate dated 18-5-1998 and the sample was
produced in the laboratory on 20-5-1998 by P.C. 4386. Ext.P9, no
doubt, contains an endorsement that the sample was entrusted to P.C.
4386. But then, it does not carry the date of entrustment. The said police
constable also was not examined before court.
14. It is well settled that in a case of this nature the prosecution
can succeed in securing a conviction only if it is proved that a sample
drawn from the contraband substance seized from the possession of the
accused was despatched to the chemical examiner in a tamper proof
condition. To put it differentlt, the prosecution has to inevitably show
that the sample which was analysed by the chemical examiner was the
Crl. Appeal Nos. 1160
of 2006, 1308 of 2006 & 2039 of 2006 -:8:-
very same sample which was drawn from the contraband liquor alleged
possessed by the accused. This is particularly so since the sample which
eventually reaches the hands of the chemical examiner changes several
hands. (Vide The State of Rajasthan v. Daulat Ram – AIR 1980 SC
1314 and Valsala v. State of Kerala – 1993 (2) KLT 550). In the case
on hand, first of all it is doubtful whether jerry can which was produced
before court after 9 days of the seizure was the very same jerry can which
was seized under Ext.P1 mahazar. Consequently, there is absolutely no
contemporaneous record maintained by the committal Magistrate to show
that there was a direction to take sample and pursuant to the said
direction sample was taken. There is no record showing the date of
sampling, the quantity of sample and the date of despatch of the same to
the Chemical Examiner etc. All these are capable of record and proof.
As mentioned earlier, even without a forwarding note or requisition for
sampling it was no part of the duty of the Magistrate to take a sample
and send the same to the Chemical Examiner. In the absence of any
acceptable evidence to show that the sample which was analysed under
Ext.P8 certificate of analysis was the very same sample which was seized
from the jerry can allegedly possessed by the accused persons, the
Crl. Appeal Nos. 1160
of 2006, 1308 of 2006 & 2039 of 2006 -:9:-
conviction entered and the sentence passed against the appellants cannot
be sustained and are accordingly dislodged.
15. The appellants are found not guilty of the offence punishable
under Sec. 58 of the Abkari Act and are acquitted thereunder. They are
set at liberty. The first accused (appellant in Crl. Appeal 2039 of 2006)
shall be released from prison forthwith unless his continued detention is
needed in connection with any other case.
In the result, these Criminal Appeals are allowed as above.
V. RAMKUMAR, JUDGE.
ani
Crl. Appeal Nos. 1160
of 2006, 1308 of 2006 & 2039 of 2006 -:10:-
V. RAMKUMAR, J.
* * * * * * * * * * * * * * * * * *
Crl. Appeal Nos. 1160
of 2006, 1308 of 2006 & 2039 of 2006
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Dated, this the 29th day of
January 2007
JUD
GMENT