{"id":151658,"date":"2006-12-06T00:00:00","date_gmt":"2006-12-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vasudevan-vs-the-state-of-kerala-on-6-december-2006"},"modified":"2016-07-21T19:24:22","modified_gmt":"2016-07-21T13:54:22","slug":"vasudevan-vs-the-state-of-kerala-on-6-december-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vasudevan-vs-the-state-of-kerala-on-6-december-2006","title":{"rendered":"Vasudevan vs The State Of Kerala on 6 December, 2006"},"content":{"rendered":"
Kerala High Court<\/div>\n
Vasudevan vs The State Of Kerala on 6 December, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 1490 of 2006(B)\n\n\n1. VASUDEVAN, S\/O.CHITHIRAN, C.NO.650,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :A.BINDHU SREEKUMAR(STATE BRIEF)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :06\/12\/2006\n\n O R D E R\n                                   V. RAMKUMAR, J.\n\n                         ---------------------------------------\n\n                            CRL.APPEAL No.1490 OF 2006\n\n                        -----------------------------------------\n\n                               Dt.  DECEMEBR 6, 2006\n\n                                       JUDGMENT\n<\/pre>\n
       In this appeal preferred from the Central Prison, Thiruvananthapuram,<\/p>\n
the appellant who was the sole accused in S.C.No.388\/2004 on the file of the<\/p>\n
Addl.   Sessions   Court   (Fast   Track   Court   No.I),   Thiruvananthapuram<\/p>\n
challenges   the   conviction   entered   and   the   sentence   passed   against   him   by<\/p>\n
that court for an offence punishable under sec.55(a) of the Abkari Act.<\/p>\n
       2.  The case of the prosecution is that on 21.2.2002 at about 10 a.m.<\/p>\n
on   the   public   road   leading   to   Adayamon   from   Kilimanoor   in<\/p>\n
Pazhayakunnummel village, the accused was found in possession of 10 litres<\/p>\n
of illicit arrack in a black jerry can having a capacity of  10 litres.   Since the<\/p>\n
said possession was in contravention of the provisions of the Abkari Act, the<\/p>\n
accused  has,  thereby,  committed  an  offence  punishable  under  sec.55(a)  of<\/p>\n
the Abkari Act.\n<\/p>\n<\/p>\n
       3.    On  the   accused   pleading  not  guilty to  the   charge  framed  against<\/p>\n
him by the court below for the aforementioned offence,  the prosecution was<\/p>\n
permitted   to   adduce   evidence   in   support   of   its   case.     The   prosecution<\/p>\n
altogether examined 5 witnesses as PWs.1 to 5 and got marked 5 documents<\/p>\n
as Exts.P1 to P5 and 1 material object  as M.O.1.\n<\/p>\n<\/p>\n
       4.     After   the   close   of   the   prosecution   evidence   the   accused   was<\/p>\n
questioned   under   sec.313(1)(b)   Cr.P.C.   with   regard   to   the   incriminating<\/p>\n
CRL.A.1490\/2006                                    2<\/span><\/p>\n
circumstances appearing against him in the evidence for the prosecution.  He<\/p>\n
denied   those   circumstances   and   maintained   his   innocence.       He   had   the<\/p>\n
following to submit before court:-\n<\/p>\n<\/p>\n
        His house is situated about 1=  kms. away from Chavettikkadu bridge.<\/p>\n
While he  was  cooking food in his house,  the  excise people came that way.<\/p>\n
He was beaten up stating that he was having illicit distillation of arrack.   So<\/p>\n
stating he was taken to the Excise Office from where a mahazar was written.<\/p>\n
After   taking   him   before   the   court   he   was   put   in   the   jail   for   42   days   after<\/p>\n
which he was released on bail.  For the past two months he has been in jail.<\/p>\n
He has not distilled any arrack.  He does not also know how to distill arrack.<\/p>\n
He is innocent and he may be let off.\n<\/p>\n<\/p>\n
        5.  Since the trial judge  did not consider this a fit case for recording an<\/p>\n
order   of   acquittal   under   sec.232   Cr.P.C.,   the   accused   was   called   upon   to<\/p>\n
enter on his defence.  He did not adduce any defence evidence.<\/p>\n
        6.  The learned Additional Sessions Judge, after trial, as per judgment<\/p>\n
dt.   1.6.2006   found   the   appellant   guilty  of   the   offence   charged   against   him<\/p>\n
and he was sentenced  to undergo rigorous imprisonment for three years and<\/p>\n
to pay a fine of Rs. 1 lakh and, on default to pay the fine, to suffer rigorous<\/p>\n
imprisonment for one year.   It is the said judgment which is assailed in this<\/p>\n
appeal.\n<\/p>\n<\/p>\n
        7.     I   heard   Adv.   Smt.   A.Bindu   Sreekumar,   the   learned   counsel<\/p>\n
appearing   for   the   appellant   on   State   Brief,   and   Adv.   Sri   Sivakumar,   the<\/p>\n
learned Public Prosecutor who defended the State.\n<\/p>\n
\nCRL.A.1490\/2006                                  3<\/span><\/p>\n
        8.  The only point which arises for consideration in this appeal is as to<\/p>\n
whether   the   conviction   entered   and   the   sentence   passed   against   the<\/p>\n
appellant are sustainable or not?\n<\/p>\n
\nTHE POINT<\/p>\n
        9.     PWs.1   and   2   are   the   independent   witnesses   who   also   figured   as<\/p>\n
attestors  to  Ext.P1 mahazar and  Ext.P2 arrest  memo.  Even  though  both of<\/p>\n
them admitted their signatures in EXts.P1 and P2, they turned hostile to the<\/p>\n
prosecution to say that they did not witness the search and seizure allegedly<\/p>\n
made by PW.5.  PW.3 is the Excise Inspector, Chirayinkeezhu who registered<\/p>\n
Ext.P3   crime   and   occurrence   report   as   Crime   No.6\/2002   of   Chirayinkeezhu<\/p>\n
Excise Range.   During the course of investigation he submitted   the original<\/p>\n
of Ext.P4 forwarding  note requesting to  send  180 ml. of arrack taken from<\/p>\n
the bulk quantity to the chemical examiner for analysis and certificate.  PW.4<\/p>\n
was   the   Excise   Inspector   who   laid   the   charge.     Ext.P5   chemical   analysis<\/p>\n
report to the effect that the sample analysed in this case contained 23.30%<\/p>\n
by volume of ethyl alcohol was marked through PW.4.  PW.5 was the Excise<\/p>\n
Preventive Officer who detected the offence.\n<\/p>\n<\/p>\n
        10.       After   an   anxious   re-appraisal   of   the   oral   and   documentary<\/p>\n
evidence in the case, I am not satisfied that the prosecution has proved the<\/p>\n
case beyond reasonable doubt so as to justify the conviction entered and the<\/p>\n
sentence passed against the appellant.\n<\/p>\n<\/p>\n
        11.    Going by the testimony of PW.5, he  is alleged to  have  detected<\/p>\n
the  accused   carrying   a   black   plastic   can   having   a   capacity   of   10   litres   and<\/p>\n
CRL.A.1490\/2006                                4<\/span><\/p>\n
containing about 10 litres of illicit arrack on 21.2.2002 at about 10 a.m. while<\/p>\n
PW.5   was   on   patrol   duty.     PW.5   claims   to   have   arrested   the   accused   and<\/p>\n
seized  the  can  under   Ext.P1  mahazar.    Going  by  the  testimony  of PW.5 as<\/p>\n
well as the recitals in Ext.P1 mahazar, PW.5 did not draw any sample from<\/p>\n
the can  and he  labelled  the can and the signatures  of himself and  the  two<\/p>\n
independent   witnesses   were   put   on   the   label   pasted   on   the   can   and<\/p>\n
thereafter    he  packed   and sealed the  can.    PW.5 claims   to  have  taken the<\/p>\n
accused, the seized can and seizure documents  to the Chirayinkeezhu Excise<\/p>\n
Office     from   where   PW.3   claims   to   have   registered   the   case   as   Crime<\/p>\n
No.6\/2002.    Ext.P3 is  the   crime and  occurrence   report   prepared  by PW.3.<\/p>\n
But the can containing the contraband liquor was actually produced in court<\/p>\n
only on  14.3.2002  i.e.  after  21 days  of its alleged seizure.   This  is  evident<\/p>\n
from the property  list available  in the records  of the committal  court.    The<\/p>\n
description of the can in the property list does not show that it was sealed.<\/p>\n
Going by the testimony of PW.5 and the recitals in Ext.P1 contemporaneous<\/p>\n
mahazar said to  have been  prepared  by PW.5 from the  spot itself,  the can<\/p>\n
was labelled and sealed before it was seized under Ext.P1 mahazar.   But the<\/p>\n
can  which   was   produced     in  court   after  21  days   was   not   sealed.     There   is<\/p>\n
absolutely no explanation  for the long delay of 21 days in producing the can<\/p>\n
before court.  PW.3 who was examined in court four years after the detection<\/p>\n
came out with an explanation for the first time that the delay was due to the<\/p>\n
strike by the Government employees.  The said explanation can be accepted<\/p>\n
only with a pinch of salt because a perusal of Exts.P1 to P3 will show that all<\/p>\n
CRL.A.1490\/2006                                5<\/span><\/p>\n
the three  seizure documents reached the court on 21.2.2002 itself   i.e. the<\/p>\n
date   of   detection.     The   accused   was   also   produced   before   court   on<\/p>\n
21.2.2002.     If   the   accused   as   well   as     the   seizure   documents   could   be<\/p>\n
produced   before   court   on   the   very   same   day   on   which   the   detection   was<\/p>\n
made,   the   explanation   given   by   PW.3   that   the   can   could   not   be   produced<\/p>\n
before court for 21 days due to strike of Government employees is palpably<\/p>\n
false.  In the property list as per which the can was produced before court on<\/p>\n
14.3.2002 and received as T-77\/2002, there is an endorsement which reads<\/p>\n
as follows:-\n<\/p>\n<\/p>\n
       “Thondy   produced   before   court   on   14.3.2002.     The   same   may   be<\/p>\n
       returned to the Excise Officer, Chirayinkeezhu after taking sample for<\/p>\n
       chemical examination.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
The can was accordingly returned to the Excise Inspector.   There is nothing<\/p>\n
to show as to who took 180 ml. of sample and when.   Ext.P5 certificate of<\/p>\n
chemical analysis shows that a sample containing 180 ml. was received in the<\/p>\n
chemical   examiner’s   laboratory   along   with   the   covering   letter   of   the<\/p>\n
magistrate dt. 5.4.2002.   In the first   place, the thondy section clerk who is<\/p>\n
the   custodian   of     the   thondy   articles   received   in   court   was   not   cited   or<\/p>\n
examined to prove the drawing of sample, packing and sealing of the same<\/p>\n
and   despatching   the   same   to   the   chemical   examiner’s   laboratory.     No<\/p>\n
independent   proceedings   are   also   recorded   in   any   of   the   papers   in   the<\/p>\n
records of the committal court to show the date and mode of sampling and<\/p>\n
despatch of the same to the chemical examiner.   The material object which<\/p>\n
CRL.A.1490\/2006                                  6<\/span><\/p>\n
was   presumably   returned   to   the   Excise   Inspector   on   14.3.2002   was<\/p>\n
subsequently produced before the trial court only on 21.2.2006.   M.O.1 was<\/p>\n
attempted   to   be   proved   as   the   can   which   was   allegedly   carried   by   the<\/p>\n
accused.  But PW.5 frankly confessed that M.O.1 does not contain any of the<\/p>\n
signatures said to have been put on the label at the time of detection.  When<\/p>\n
there   is   nothing   on   M.O.1   to   indicate   that   it   was   the   can   seized   from   the<\/p>\n
accused, the identification by PW.5 four years after the detection to say that<\/p>\n
M.O.1 was the can allegedly seized from the accused cannot be safely acted<\/p>\n
upon.\n<\/p>\n<\/p>\n
         12.  Even assuming that a sample was duly taken from the committal<\/p>\n
court from the can which was produced before court on 14.3.2002, when the<\/p>\n
said can was not seen sealed as against the testimony of PW.5 that the can<\/p>\n
which he seized under Ext.P1 mahazar was sealed, it cannot be held that the<\/p>\n
sample   which   ultimately   reached   the   hands   of   the   chemical   examiner   was<\/p>\n
drawn from the contraband liquor allegedly seized from the accused.   Going<\/p>\n
by the decisions reported in  State of Rajasthan v. Daulat Ram<\/a> – AIR 1980 SC<\/p>\n
1314 and Valsala v. State of Kerala<\/a> – 1993 (2) KLT 550 of the apex court, the<\/p>\n
prosecution has a duty to prove that the sample which admittedly changed<\/p>\n
hands and which ultimately reached the hands of the  chemical examiner was<\/p>\n
the   very   same   sample   which   was   drawn   from   the   contraband   substance<\/p>\n
allegedly seized from the accused.   There is no satisfactory link evidence to<\/p>\n
prove this aspect of the matter as well.\n<\/p>\n<\/p>\n
         13.   There is thus no  explanation to the effect that the thondy article<\/p>\n
CRL.A.1490\/2006                                 7<\/span><\/p>\n
was kept in proper custody till it was produced in court after 21 days.  PW.3<\/p>\n
or PW.5 have no case that until the can was produced in court, it was in their<\/p>\n
safe   custody.     Therefore,   in  the   light   of   the   decision   in  Narayani   v.   Excise<\/p>\n
Inspector<\/a>   –   2002   (3)   KLT   725  the   chance   of   tampering   with   the   material<\/p>\n
object also cannot be ruled out particularly in view of the fact that the can<\/p>\n
which was produced  in court was not sealed and the production of the can<\/p>\n
itself was after 21 days.\n<\/p>\n<\/p>\n
        14.     The   conviction   entered   and   the   sentence   passed   by   the   court<\/p>\n
below overlooking these vital aspects cannot be sustained and are dislodged.<\/p>\n
        The   appellant   is   found   not   guilty   of   the   offence   punishable   under<\/p>\n
sec.55(a) of the Abkari Act and is accordingly acquitted of the same.   He is<\/p>\n
set at liberty.  He shall be released from prison forthwith unless his continued<\/p>\n
detention is warranted in connection with any other case against him.<\/p>\n
        In the result, this appeal is allowed and the conviction entered and the<\/p>\n
sentence passed against the appellant are set aside as above.<\/p>\n
                                                         (V.RAMKUMAR, JUDGE)<\/p>\n
mt\/-\n<\/p>\n<\/p>\n
CRL.A.1490\/2006    8\n\n\n\n\n\n                                             V. RAMKUMAR, J.\n\n                          ---------------------------------------\n\n\n\n\n\n                               CRL.APPEAL No.1490 OF 2006\n\n\n\n\n                                                    JUDGMENT\n\n\n\n\n                        -----------------------------------------\n\n\n\n\n\n                                           DECEMEBR 6, 2006\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Vasudevan vs The State Of Kerala on 6 December, 2006 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 1490 of 2006(B) 1. VASUDEVAN, S\/O.CHITHIRAN, C.NO.650, … Petitioner Vs 1. THE STATE OF KERALA, … Respondent For Petitioner :A.BINDHU SREEKUMAR(STATE BRIEF) For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice V.RAMKUMAR […]<\/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-151658","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nVasudevan vs The State Of Kerala on 6 December, 2006 - 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\/vasudevan-vs-the-state-of-kerala-on-6-december-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vasudevan vs The State Of Kerala on 6 December, 2006 - 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