{"id":100810,"date":"2009-02-19T00:00:00","date_gmt":"2009-02-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sarojini-vs-state-of-kerala-on-19-february-2009-2"},"modified":"2015-09-22T07:16:50","modified_gmt":"2015-09-22T01:46:50","slug":"sarojini-vs-state-of-kerala-on-19-february-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sarojini-vs-state-of-kerala-on-19-february-2009-2","title":{"rendered":"Sarojini vs State Of Kerala on 19 February, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Sarojini vs State Of Kerala on 19 February, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 35 of 2002()\n\n\n1. SAROJINI, W\/O. MOHANAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.VIJAYA BHANU\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice V.GIRI\n\n Dated :19\/02\/2009\n\n O R D E R\n                           V.GIRI, J.\n           -------------------------\n                    CRL.R.P.No.35 of 2002\n           -------------------------\n       Dated this the 19th day of February, 2009.\n\n\n                         O R D E R\n<\/pre>\n
         The accused, in C.C.No.80\/98 on the file of the<\/p>\n
Judicial Magistrate of the First Class, Wadakkancherry, is the<\/p>\n
petitioner in this Criminal Revision Petition.<\/p>\n
         2. The petitioner was prosecuted for the offence<\/p>\n
punishable under Section 55(a) of the Abkari Act (for short<\/p>\n
‘the Act’}. She was found guilty, convicted thereunder and<\/p>\n
sentenced to undergo simple imprisonment for a period of<\/p>\n
one year and to pay a fine of Rs.25,000\/- with a default<\/p>\n
sentence.     The conviction was affirmed by the lower<\/p>\n
appellate court, but the sentence was modified wherein the<\/p>\n
substantive sentence of imprisonment was reduced from<\/p>\n
one year to six months.       Challenging the conviction and<\/p>\n
sentence, the accused has come up in revision.<\/p>\n
         3.    The case of the prosecution is that a patrol<\/p>\n
party, consisting of PW.1 Excise Preventive Officer, was<\/p>\n
conducting petrol duty on 10.2.1997 at about 5 PM. When<\/p>\n
the patrol party reached the pathway situated on the<\/p>\n
southern side of the house of the accused in Kanjiramcode<\/p>\n
CRL.R.P.No.35 of 2002<\/p>\n
                           :: 2 ::\n<\/p>\n
\nDesom, the accused was seen coming from the opposite<\/p>\n
side holding a Can. On suspicion, the accused was stopped.<\/p>\n
On conducting inspection of the jerry Can, 3 litres of arrack<\/p>\n
was found in it. The plastic can was having a capacity of 5<\/p>\n
litres. The accused was arrested and a sample was taken in<\/p>\n
a bottle of 180 ml. The sample bottle and the plastic Can<\/p>\n
were sealed separately and       Ext.P1 mahazar was drawn.<\/p>\n
The crime and occurrence report, Ext.P2) was registered by<\/p>\n
the Excise Inspector.   The sample was sent for chemical<\/p>\n
analysis and Ext.P3report was obtained. PW.1 identified the<\/p>\n
plastic Can as M.O.1.\n<\/p>\n
         4. PW.2 is stated to be the mahazar witness. He<\/p>\n
admitted his signature in Ext.P1, though otherwise he did<\/p>\n
not support the prosecution regarding the manner in which<\/p>\n
he came to subscribe his signature in Ext.P1.             The<\/p>\n
suggestion made to Pws.1 and 2 was that apparently the<\/p>\n
address of the accused was available with the excise party<\/p>\n
and that therefore, the accused was falsely implicated.<\/p>\n
         5.   The trial court convicted and sentenced the<\/p>\n
accused as aforementioned.       As stated earlier, the lower<\/p>\n
appellate court confirmed the conviction and sentence.<\/p>\n
CRL.R.P.No.35 of 2002<\/p>\n
                            :: 3 ::\n<\/p>\n<\/p>\n
         6.   Learned counsel for the petitioner submitted<\/p>\n
that the evidence adduced by the prosecution is inadequate<\/p>\n
to prove the charge against the accused beyond reasonable<\/p>\n
doubt.  It is was further submitted that in the matter of<\/p>\n
search and seizure effected from the accused, there is<\/p>\n
contravention of Section 36 of the Abkari Act.           It is<\/p>\n
contended that the search was not witnessed by two<\/p>\n
independent witnesses and it is vitiated by the proviso to<\/p>\n
Section 36 of the Act.\n<\/p>\n
         7. It was further contended that the evidence on<\/p>\n
record seems to suggest that the excise officials were<\/p>\n
acquainted with the address of the accused and it seems<\/p>\n
that the accused was roped in without a detection and<\/p>\n
seizure having been effected in the manner suggested by<\/p>\n
the prosecution. It is further contended that the suggestion<\/p>\n
made to PW.1 was that it is only because the address of the<\/p>\n
accused was known to the excise officials, she was falsely<\/p>\n
implicated.\n<\/p>\n
         8. I have gone through the evidence, both oral and<\/p>\n
documentary.       Before considering the plea regarding<\/p>\n
contravention of Section 36 of the Act, it will be relevant to<\/p>\n
CRL.R.P.No.35 of 2002<\/p>\n
                           :: 4 ::\n<\/p>\n
\nnote certain aspects emanating from the testimony of Pws.1<\/p>\n
and 2.\n<\/p>\n
         9. PW.1, the Preventive Officer was one among the<\/p>\n
patrol party. He deposed that the patrol party had to stop<\/p>\n
the jeep in which they came about 3\/4th kilometer away<\/p>\n
because the lane through which they came was narrow.<\/p>\n
According to PW.1, while patrol party was standing by the<\/p>\n
side of the southern side of the residence of the accused,<\/p>\n
they saw the accused coming along the lane with a Jerry<\/p>\n
Can. It was in suspicious circumstances and they inspected<\/p>\n
the Can, which was found to be containing illicit arrack.<\/p>\n
Thereafter Ext.P1 mahazar was drawn up and though apart<\/p>\n
from PW.1 there were two independent witnesses, the<\/p>\n
mahazar shows the signature of PW.2 alone as an<\/p>\n
independent witness.    Further, though the patrol party is<\/p>\n
said to have consisted of 5 persons, none of the other official<\/p>\n
witnesses were examined. What I found to be noteworthy in<\/p>\n
Ext.P1 is the total absence of a recital therein that after the<\/p>\n
seizure of M.O.1 and also after a portion of the liquor was<\/p>\n
transferred to the sample bottle with 180 ml that though<\/p>\n
they were separately sealed, thereafter both the accused<\/p>\n
CRL.R.P.No.35 of 2002<\/p>\n
                           :: 5 ::\n<\/p>\n
\nand the witnesses were asked to affix their signatures on the<\/p>\n
seal.  Normally, a seal is affixed on the material object<\/p>\n
recovered from the site and the bottle in which the sample is<\/p>\n
collected. The accused is required to affix his\/her signature<\/p>\n
on the seal so affixed. This is a practice which is seen to be<\/p>\n
followed, almost invariably, in all Abkari cases. But Ext.P1<\/p>\n
does not contain any recital that the accused was asked to<\/p>\n
put her signature on such seal. The most reliable method of<\/p>\n
ensuring authenticity of the sample and to obviate an<\/p>\n
argument at a later point of time that there is nothing to<\/p>\n
connect the material object with the accused as such. PW.1<\/p>\n
ought to have obtained the signature of the accused on the<\/p>\n
seal of the material object, which should naturally tally with<\/p>\n
the seal and the signature on the sample bottle. Though the<\/p>\n
sample bottle was found to be sealed and the sample that<\/p>\n
was forwarded to the chemical analyst as pointed out by the<\/p>\n
Public Prosecutor with reference to Ext.P3 analysis report,<\/p>\n
this does not ensure the authenticity      of the search, the<\/p>\n
presence of the accused at the scene of occurrence and her<\/p>\n
being in possession of the contraband, as alleged by the<\/p>\n
prosecution, in the absence of the signature of the accused<\/p>\n
CRL.R.P.No.35 of 2002<\/p>\n
                            :: 6 ::\n<\/p>\n
\non the seal affixed on the material object. I am constrained<\/p>\n
to observe that this is a crucial lapse on the part of the<\/p>\n
prosecution.\n<\/p>\n
         10.   I take note of this lapse in the light of the<\/p>\n
contention taken up by the Learned counsel for the accused,<\/p>\n
with reference to Section 36 of the Act, which reads as<\/p>\n
follows:\n<\/p>\n
     “36. Searches how to be made:- All searches<\/p>\n
            under the provisions of this Act shall be<\/p>\n
            made in accordance with the provisions<\/p>\n
            of the (Code of Criminal Procedure, 1973<\/p>\n
            (Central Act 2 of 1974)<\/p>\n
            [Provided that the persons called upon<\/p>\n
            to attend and witness such searches<\/p>\n
            shall include at least two persons neither<\/p>\n
            of whom is an Abkari, Police or Village<\/p>\n
            Officer.]”<\/p><\/blockquote>\n
         11.     The proviso thereto obviously, therefore,<\/p>\n
requires two independent witnesses for every search which<\/p>\n
is conducted under the provisions of the Act in question.<\/p>\n
Learned Public Prosecutor would submit that the instant is a<\/p>\n
case where the accused was found in possession of a jerry<\/p>\n
Can, having a capacity of 3 litres, that she was arrested on<\/p>\n
the spot and that this was not a case of search of the<\/p>\n
CRL.R.P.No.35 of 2002<\/p>\n
                           :: 7 ::\n<\/p>\n
\npremises of the accused and consequently, Section 36 of the<\/p>\n
Act would have no application. I find it difficult to accept this<\/p>\n
submission, inasmuch as Section 36 of the Act refers to all<\/p>\n
searches conducted under the Act as such.           It does not<\/p>\n
purport to draw a distinction between search of a premises<\/p>\n
and search of a person. It was, therefore, necessary for the<\/p>\n
prosecution to comply with Section 36 of the Act in the<\/p>\n
matter of searching the person of the accused as well.<\/p>\n
         12.    Indisputably, only one independent witness<\/p>\n
has signed Ext.P1 mahazar i.e. PW.2. The reading of the<\/p>\n
testimony of PW.1 also does not lead to a conclusion that an<\/p>\n
attempt was made by PW.1 to secure the presence of a<\/p>\n
second independent witness. Nor does PW.1 come out with<\/p>\n
an explanation as to why they were unable to secure the<\/p>\n
presence of two independent witnesses while the search was<\/p>\n
being conducted on the person of the accused. No doubt, as<\/p>\n
pointed out by the learned Public Prosecutor an infraction of<\/p>\n
Section 36 of the Act does not vitiate the trial of the<\/p>\n
accused, as has been held by this court in Madhavan v.<\/p>\n
Excise Inspector<\/a> {2000(1) KLT 311}. But, that does not<\/p>\n
relieve the prosecution from at least offering an explanation<\/p>\n
CRL.R.P.No.35 of 2002<\/p>\n
                            :: 8 ::\n<\/p>\n
\nas to why they were not able to secure the presence of two<\/p>\n
independent witnesses for the search in question.       It, at<\/p>\n
least, obliges the prosecution to affirm whether they made<\/p>\n
an attempt to secure the presence of two independent<\/p>\n
witnesses as is contemplated by Section 36 of the Act. Even<\/p>\n
that limited option does not seem to have been attempted<\/p>\n
to by the prosecution. Though an infraction of Section 36 of<\/p>\n
the Act does not result, ipso facto, in vitiating the trial as<\/p>\n
such, it would definitely require the court to consider the<\/p>\n
evidence offered by the prosecution with a little more<\/p>\n
circumspection and find out whether the prosecution has<\/p>\n
succeeded in offering an explanation for not complying with<\/p>\n
Section 36 of the Act, while conducting the search.<\/p>\n
          13. I also take note of the evidence of PW.2, the<\/p>\n
mahazar witness.     He is a coolie and he affirmed his<\/p>\n
signature in Ext.P1 mahazar. But, in cross-examination, he<\/p>\n
went on to say that he did not see either the accused or<\/p>\n
M.O.1 when he subscribed his signature in Ext.P1. He also<\/p>\n
denies the suggestion that he was asked to smell and taste<\/p>\n
the sample which was taken from M.O.1.         This does not<\/p>\n
support the version given by PW.1 to the contra. He further<\/p>\n
CRL.R.P.No.35 of 2002<\/p>\n
                            :: 9 ::\n<\/p>\n
\ndeposed that he signed the mahazar in the Panchayat road<\/p>\n
at 6 PM and that only the Excise Officials were present when<\/p>\n
he subscribed his signature in the mahazar.       He further<\/p>\n
stated that the contents of Ext.P1 were not read over to him.<\/p>\n
The court below went on to hold that PW.2 was not<\/p>\n
rendering the truth. I am of the view that the absence of<\/p>\n
any attempt on the part of the prosecution to conduct a re-<\/p>\n
examination of PW.2 cannot be brushed aside as such.<\/p>\n
          14.  In these circumstances, I am of the view that<\/p>\n
the evidence adduced by the prosecution cannot be<\/p>\n
accepted as such. The failure on the part of the prosecution<\/p>\n
to obtain the signature of the accused or the witness on the<\/p>\n
seal affixed on M.O.1, as discernible from the testimony of<\/p>\n
PW.1 and the failure of the prosecution to secure the<\/p>\n
presence of two independent witnesses at the search in<\/p>\n
terms of Section 36 of the Act, in my view, would render the<\/p>\n
case of the prosecution unacceptable. It would be unsafe to<\/p>\n
find the accused guilty of the offence under Section 55(a) of<\/p>\n
the Act and convict her, on such shaky evidence.<\/p>\n
          For all these reasons, Criminal Revision Petition is<\/p>\n
allowed. The conviction and sentence of the accused under<\/p>\n
CRL.R.P.No.35 of 2002<\/p>\n
                             :: 10 ::\n<\/p>\n
\nSection 55(a) of the Abkari Act is set aside. She is acquitted<\/p>\n
of the charge. The bail bond executed by her shall stand<\/p>\n
cancelled. If the accused has remitted any fine, the same<\/p>\n
shall be refunded to her within a period of three months<\/p>\n
from the date of receipt of a copy of this order.<\/p>\n
                                             Sd\/-\n<\/p>\n
                                           (V.GIRI)
\n                                            JUDGE
\nsk\/<\/p>\n
      \/\/true copy\/\/<\/p>\n
                     P.S. to Judge<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Sarojini vs State Of Kerala on 19 February, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 35 of 2002() 1. SAROJINI, W\/O. MOHANAN, … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY … Respondent For Petitioner :SRI.P.VIJAYA BHANU For Respondent : No Appearance The Hon’ble MR. Justice V.GIRI Dated :19\/02\/2009 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-100810","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSarojini vs State Of Kerala on 19 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sarojini-vs-state-of-kerala-on-19-february-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sarojini vs State Of Kerala on 19 February, 2009 - 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