{"id":4438,"date":"2007-02-08T00:00:00","date_gmt":"2007-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohanan-pillai-vs-state-of-kerala-on-8-february-2007"},"modified":"2016-01-04T22:33:14","modified_gmt":"2016-01-04T17:03:14","slug":"mohanan-pillai-vs-state-of-kerala-on-8-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohanan-pillai-vs-state-of-kerala-on-8-february-2007","title":{"rendered":"Mohanan Pillai vs State Of Kerala on 8 February, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Mohanan Pillai vs State Of Kerala on 8 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 2436 of 2006(A)\n\n\n1. MOHANAN PILLAI,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :ADV.K.SANILKUMAR(STATE BRIEF)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :08\/02\/2007\n\n O R D E R\n                                        V. RAMKUMAR, J.\n\n                              ---------------------------------------------\n\n                                  CRL.A.NO. 2436 OF 2006\n\n                              ---------------------------------------------\n\n                                   Dt.   FEBRUARY 8, 2007\n\n\n\n\n                                            JUDGMENT\n<\/pre>\n
        In this appeal preferred from the Central Prison, Thiruvananthapuram, the<\/p>\n
appellant who was the sole accused in S.C.No. 602\/2002 on the file of the Addl.<\/p>\n
Sessions Court (Abkari), Kottarakkara, challenges the conviction entered and the<\/p>\n
sentence passed against the appellant for offences punishable under sec.55(a)<\/p>\n
of the Abkari Act, read with secs.8(1) and 8(2) of the said Act.<\/p>\n
        2.   The case of the prosecution is that on 8.12.1998     at about 6.30 p.m.<\/p>\n
on   a   pathway   near   Karottu   paddy   fields   within   the   limits   of   the   Anchal   Excise<\/p>\n
Range, the accused was found carrying a 10 litre jerry can containing 5 litres of<\/p>\n
illicit arrack and the accused has thereby committed offences punishable under<\/p>\n
sec.55(a) read with sec.8(1) and (2)  of the Abkari Act.\n<\/p>\n<\/p>\n
        3.   On the accused pleading not guilty to the charge framed against him<\/p>\n
by   the   court   below   for   the   aforementioned   offences,   the   prosecution   was<\/p>\n
permitted to adduce evidence in support of its case.  The prosecution altogether<\/p>\n
examined   four   witnesses   as   PWs.1   to   4   and   got   marked   six   documents   as<\/p>\n
Exts.P1  to P6  and one 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
circumstances   appearing   against   him   in   the   evidence   for   the   prosecution.     He<\/p>\n
CRL.A.2436\/2006                                      2<\/span><\/p>\n
denied those circumstances and maintained his innocence.<\/p>\n
        5.     Since   the   court   below   did   not   consider   it   a   fit   case   for   recording   an<\/p>\n
order of acquittal under sec.232 Cr.P.C., the accused was called upon to enter<\/p>\n
on   his   defence   and   to   adduce   any   evidence   which   he   might   have   in   support<\/p>\n
thereof.  The accused did not adduce any defence evidence.<\/p>\n
        6.     The   learned   Addl.   Sessions   Judge,   after   trial,   as   per   judgment   dt.<\/p>\n
8.11.2006   found   the   appellant   guilty   of   the   offences   and   sentenced   him   to<\/p>\n
undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh and,<\/p>\n
on default to pay the fine, to suffer rigorous imprisonment for three months more.<\/p>\n
It is the said judgment which is assailed in this appeal.\n<\/p>\n<\/p>\n
        7.   I heard Adv. Sri K.Sanilkumar, the learned counsel who defended the<\/p>\n
appellant   on   State   Brief,   and   Adv.   Sri   K.S.Sivakumar,   the   learned   Public<\/p>\n
Prosecutor who defended the State.\n<\/p>\n<\/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  appellant<\/p>\n
are sustainable or not?\n<\/p>\n
\nTHE POINT<\/p>\n
        9.  PW.1 is the Excise Inspector, Anchal who detected the offence.  PW.2<\/p>\n
is the Excise Preventive Officer who accompanied PW.1 on patrol duty.  PW.3 is<\/p>\n
the   Preventive   Officer   who   produced   the   accused   and   the   contraband   article<\/p>\n
before court.  PW.4 is the Excise Inspector who had laid the charge.<\/p>\n
        10.     After   bestowing   my   anxious   consideration   to   the   oral   and<\/p>\n
CRL.A.2436\/2006                                      3<\/span><\/p>\n
documentary evidence in the case I am of the view that the prosecution has not<\/p>\n
succeeded in bringing home the guilt of the accused beyond reasonable doubt.<\/p>\n
Even   though   the   evidence   of   PWs.1   and   2   can   be   relied   on   to   hold   that   the<\/p>\n
accused   was   found   in   possession   of   a   jerry   can   containing   some   liquid<\/p>\n
suspected   to   be   illicit   arrack,   the   prosecution   can   succeed   in   securing   a<\/p>\n
conviction   only   if   it   is   proved   that   a   sample   drawn   from   the   said   liquid   and<\/p>\n
forwarded   to   the   chemical   examiner   through   court   in   a   tamper-proof   condition<\/p>\n
was found to contain the requisite percentage of ethyl alcohol to conclude that it<\/p>\n
was illicit arrack.\n<\/p>\n<\/p>\n
        11.   Going by the recitals in Ext.P1 contemporaneous mahazar prepared<\/p>\n
by PW.1 from the scene of detection itself, he had drawn a sample of 375 ml. in<\/p>\n
a bottle having a capacity of 375 ml. and both the balance contraband liquor in<\/p>\n
the jerry can as well as the sample bottle were sealed and produced before the<\/p>\n
court on 9.12.1998.  This part of the testimony of PWs.1 and 2 as corroborated<\/p>\n
by the recitals in Ext.P1 mahazar is amply proved by Ext.P5 property list as per<\/p>\n
which     on   9.12.1998   the   sealed   jerry  can   as   well   as   the   sealed   sample   bottle<\/p>\n
were   received   in   court.     On   9.12.1998   itself   the   learned   committal   magistrate<\/p>\n
directed   return   of   the   jerry   can   together   with   the   liquor   inside   it   to   the   Excise<\/p>\n
Inspector, Anchal for keeping possession of the same until further orders for the<\/p>\n
reason that there was dearth of space in the thondy room of the court.  The only<\/p>\n
other   material   produced   by   the   prosecution   is   Ext.P6   certificate   of   chemical<\/p>\n
analysis   to   show   that   the   sample   analysed   thereunder   showed   that   the   liquid<\/p>\n
CRL.A.2436\/2006                                      4<\/span><\/p>\n
contained 27.15% by volume of ethyl alcohol.  It is not known as to how and why<\/p>\n
a sample was forwarded  to the chemical   examiner  as  per  a letter dt.  8.1.1999<\/p>\n
seen   referred   to   in   Ext.P6   certificate   of   chemical   analysis.     There   was   no<\/p>\n
requisition   or   forwarding   note   proved   or   marked   in   this   case.     Even   without   a<\/p>\n
request  from  the   investigating agency  it is  not  known as  to  why a sample  was<\/p>\n
forwarded by the committal magistrate on 8.1.1999.   No doubt, PW.1 during his<\/p>\n
evidence stated  before  court that he had submitted a requisition for forwarding<\/p>\n
the   sample   to   the   chemical   examiner   for   analysis   and   report.     But   no   attempt<\/p>\n
whatsoever was made to mark the office copy of the alleged requisition.  Neither<\/p>\n
the prosecutor who was in charge of the case nor the trial Judge took any pains<\/p>\n
to see whether   there was, in fact, the office copy of the requisition available in<\/p>\n
the court records so that the same could be marked as an exhibit.<\/p>\n
        12.       Even   if   there   was   such   a   requisition,   there   is   yet   another<\/p>\n
unsurmountable   hurdle   for   the   prosecution.     After  the   receipt   of   the   properties<\/p>\n
before   the   magistrate   on   9.12.1998,   there   is   no   document   before   court   to<\/p>\n
indicate   whether   any   direction   was   given   by   the   magistrate   to   despatch   the<\/p>\n
sample  bottle   to  the   chemical   examiner  much   less  any  compliance  of  the  said<\/p>\n
direction.     Ordinarily   it   is   the   thondy   section   clerk   who   is   the   custodian   of   the<\/p>\n
properties produced before a criminal court.       It is such a member of the court<\/p>\n
staff   who   is   expected   to   deal   with   the   properties   received   in   a   case.     In   the<\/p>\n
normal course,  if a requisition or a forwarding note  had been submitted by the<\/p>\n
investigating   agency,   the   magistrate   should   have   directed   the   thondy   section<\/p>\n
CRL.A.2436\/2006                                   5<\/span><\/p>\n
clerk   to   despatch   the   sample   (if   already   produced   before   court)   or   to   draw   a<\/p>\n
fresh   sample   from   the   bulk   quantity   and   despatch   the   same   to   the   chemical<\/p>\n
examiner for analysis.   Absolutely no material has been produced to show that<\/p>\n
any such direction was given and such direction was complied with.     After the<\/p>\n
receipt of  the properties in court on 9.12.1998 what is seen is that a sample is<\/p>\n
despatched   on   8.1.1999   from   the     court   of   the   committal   magistrate   and   the<\/p>\n
same is received in the chemical examiner’s laboratory on 12.1.1999.  The court<\/p>\n
is kept in the dark as to who had despatched the sample and on what date and<\/p>\n
also  as to  whether  it was the very same  sample   bottle  which was produced  in<\/p>\n
court   on   9.12.1998   that   was   forwarded   to   the   chemical   examiner’s   laboratory.<\/p>\n
These are all matters for record.  It is only when a sampling has been ordered or<\/p>\n
when the  sample (already before  court)  has  been directed to  be forwarded   to<\/p>\n
the   chemical   examiner,   could   a   presumption   be   drawn   that   official   acts   have<\/p>\n
been regularly performed in view of sec.114(e) of the Evidence Act.  For want of<\/p>\n
this  link evidence,   the   prosecution   has  to  fail.    The  conviction   entered  and  the<\/p>\n
sentence passed against the appellant by the court below overlooking these vital<\/p>\n
aspects   of   the   matter   cannot,   therefore,   be   sustained   and   are   accordingly<\/p>\n
dislodged.      The   appellant   is   found   not   guilty   of   the   offence   punishable   under<\/p>\n
sec.55(a)   read   with   sec.8(1)   and   8(2)   of   the   Abkari   Act   and   is   acquitted<\/p>\n
thereunder.   He is set at liberty.   He shall be released from the prison forthwith<\/p>\n
unless his continued detention is found necessary in connection with any other<\/p>\n
case.\n<\/p>\n
\nCRL.A.2436\/2006                                    6<\/span><\/p>\n
        13.     Before   parting   with   this   case   I   am   constrained   to   observe   that   the<\/p>\n
prosecution in this case had to fail not on account of any lapses or omission on<\/p>\n
the   part   of   the   investigating   officer.     If   the   detecting   officer   had   submitted   a<\/p>\n
forwarding note or a requisition for forwarding the sample bottle produced by him<\/p>\n
along with the properties to the chemical examiner as PW.1 would have it, it was<\/p>\n
the bounden duty of the prosecutor in charge of the case to have the office copy<\/p>\n
of such forwarding note or requisition marked as an exhibit.  The trial Judge also<\/p>\n
had   a   responsibility   in   such   matters.     PW.1   had   deposed   before   court   that   he<\/p>\n
had   filed   a   requisition   which   can   only   be   in   duplicate.   The   original   one   will<\/p>\n
accompany the sample to the office of the chemical examiner and the duplicate<\/p>\n
will be retained in the court of the magistrate.  This office copy of the requisition<\/p>\n
or  forwarding  note  should  have  been  traced   out   and  marked   in   the   case.     Yet<\/p>\n
another   lapse   is   the   usual   omission   which   takes   place   in   the   committal   court.<\/p>\n
There  is  absolutely  no  contemporaneous  record  maintained  in  the   court  of  the<\/p>\n
committal   magistrate   to   show   that   a   direction   was   given   to   the   thondy   section<\/p>\n
clerk to despatch the sample bottle to the chemical examiner in a temper-proof<\/p>\n
condition   and   the   compliance   of   such   direction.     In   the   absence   of   any<\/p>\n
contemporaneous record, the thondy section  clerk concerned  could  have  been<\/p>\n
either   cited   and   examined   as   an   additional   prosecution   witness     if   the   public<\/p>\n
prosecutor in charge of the case was really vigilant and had evinced a sense of<\/p>\n
responsibility.     That   also   has   not   been   done   and   the   consequence   has   been<\/p>\n
failure   of   justice.     Committal   magistrates   should   take   care   to   see   that   any<\/p>\n
CRL.A.2436\/2006                                     7<\/span><\/p>\n
proceedings   with   respect   to   properties   produced   before   them   are   properly<\/p>\n
recorded so that there is no room for criticism that judicial and official acts have<\/p>\n
not  been  properly  done.     It  is  the  duty of   the  magistrate  to preserve the   office<\/p>\n
copy of the covering letter which is sent along with the properties to the chemical<\/p>\n
examiner so that such office copies are made available during trial to be marked<\/p>\n
as exhibits.  There has to be written record indicating sampling, if any, done and<\/p>\n
the   despatch   of   the   sample   so   taken   or   the   sample   which   has   already   been<\/p>\n
produced  before court  so that  it does not  give  room  for  any adverse comment<\/p>\n
during trial.   It is for want of  the link evidence that the prosecution in this case<\/p>\n
had   to   fail.     Some   sense   of   responsibility   is   expected   in   the   trial   Judges   also.<\/p>\n
After all, the purpose of conducting trial is not merely to see that the person in<\/p>\n
the dock is acquitted due to the lapses on the part of the investigating agency or<\/p>\n
the prosecuting agency, but to see that a person who is really guilty is brought to<\/p>\n
justice.\n<\/p>\n<\/p>\n
        The registry shall either forward a copy of this judgment to all Magistrates<\/p>\n
and   Sessions   Judges   or   issue   an   official   memorandum   highlighting   the   duties<\/p>\n
and   responsibilities   of   the   magistrates   and   trial   judges   while   dealing   with<\/p>\n
prosecutions under the Abkari Act.<\/p>\n
\n\n\n\n\n\n\n\n\n                                                             (V.RAMKUMAR, JUDGE)\n\n\nCRL.A.2436\/2006    8\n\n\n\n\n\nmt\/-\n\n\nCRL.A.2436\/2006    9\n\n\n\n\n\n                                           V. RAMKUMAR, J.\n\n                        ---------------------------------------------\n\n                                 CRL.A.NO. 2436 OF 2006\n\n                        ---------------------------------------------\n\n                                  Dt.   FEBRUARY 8, 2007\n\n\n\n\n                                                    JUDGMENT\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Mohanan Pillai vs State Of Kerala on 8 February, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 2436 of 2006(A) 1. MOHANAN PILLAI, … Petitioner Vs 1. STATE OF KERALA, … Respondent For Petitioner :ADV.K.SANILKUMAR(STATE BRIEF) For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice V.RAMKUMAR Dated :08\/02\/2007 O […]<\/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-4438","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMohanan Pillai vs State Of Kerala on 8 February, 2007 - 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\/mohanan-pillai-vs-state-of-kerala-on-8-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohanan Pillai vs State Of Kerala on 8 February, 2007 - 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