{"id":94855,"date":"2007-01-10T00:00:00","date_gmt":"2007-01-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anil-vs-state-of-kerala-on-10-january-2007"},"modified":"2014-10-23T22:46:50","modified_gmt":"2014-10-23T17:16:50","slug":"anil-vs-state-of-kerala-on-10-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anil-vs-state-of-kerala-on-10-january-2007","title":{"rendered":"Anil vs State Of Kerala on 10 January, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Anil vs State Of Kerala on 10 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 771 of 2006(C)\n\n\n1. ANIL,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :ADV.LIJU V STEPHAN(STATE BRIEF)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.THANKAPPAN\n\n Dated :10\/01\/2007\n\n O R D E R\n                                K. THANKAPPAN,  J.\n\n                                  --------------------------------------\n\n                             Crl.A.No.771 OF 2006-C\n\n                                ---------------------------\n\n                   Dated this the   10th  day of  January,  2007.\n\n\n                                         JUDGMENT\n<\/pre>\n
       The    appellant,  accused,  in  S.C.No.44704   on  the  file  of<\/p>\n
the Additional District and Sessions  Judge (Adhoc) Fast Track-\n<\/p>\n
III,     Pathanamthitta,   faced   trial   for   the   offence     punishable<\/p>\n
under Section  8(1)  read with  Section    8(2)  of the  Abkari Act.\n<\/p>\n
The   prosecution allegation   against the appellant   is that   he<\/p>\n
was found  in   possession   of    35  liters    of arrack   in   a   plastic<\/p>\n
can     having     the     capacity   of     35   liters   and         10   liters     of<\/p>\n
arrack  in a  plastic  can having the capacity of  35 liters   and<\/p>\n
one liter of arrack in a bottle having the  capacity of 1.5 liters<\/p>\n
and     also   a    glass   tumbler   for   selling     arrack   at     K.I.P   Kanal<\/p>\n
Puramboke, Kalanjoor Muri, within the limits of  Koodal  Police<\/p>\n
Station   ,   on   6.4.2003   at   about   10.45   a.m.         Prosecution<\/p>\n
examined Pws  1 to 3 and relied on Exts.P1 to P8.   MOs  1 to 5<\/p>\n
were also produced.     Closing   the prosecution evidence,   the<\/p>\n
appellant   was   questioned   under   Section   313   of   the   Code   of<\/p>\n
Criminal   Procedure.       The         appellant       denied   the<\/p>\n
prosecution allegations and stated     that he is innocent in the<\/p>\n
CRL.A.NO.771\/2006                       2<\/span><\/p>\n
  case.       However,   relying     on   the   evidence     adduced   by   the<\/p>\n
  prosecution,  the  trial court  found the appellant  guilty  under<\/p>\n
  Section   8(1)   and       convicted   thereunder   and   sentenced   to<\/p>\n
  undergo R.I for   three years and   a fine of Rs. One lakh   with<\/p>\n
  default  sentence of fine  for a  further period of  S.I for  three<\/p>\n
  months under Section 8 (2) of the Abkari Act.   Challenging the<\/p>\n
  above  conviction and sentence,  the  appeal is  filed.\n<\/p>\n
  2.     Since the appellant is not   having   any counsel of his own<\/p>\n
  choice, a member of the State brief panel has been appointed<\/p>\n
  to   argue   the     case   of   the   petitioner.   This   Court   heard   the<\/p>\n
  learned  counsel    appearing  for  the     appellant  as   well   as  the<\/p>\n
  learned Public Prosecutor.       The learned   counsel   appearing<\/p>\n
  for   the   appellant   had     two     contentions     before   this   Court.\n<\/p>\n
  Firstly   the   learned   counsel   submits   that   the   trial   court   went<\/p>\n
  wrong   in   placing   reliance  on   the  evidence   of  the   prosecution<\/p>\n
  witnesses,   who   are   only   official   witnesses,       as   there   was   no<\/p>\n
  independent   evidence to corroborate  the evidence of official<\/p>\n
  witnesses. Secondly,  the  counsel submits that PW3,   the Sub<\/p>\n
  Inspector   of   Police     and   other   officials     have     violated     the<\/p>\n
  provisions   of     the   Abkakri   Act  and   the     provisions   of     Kerala<\/p>\n
CRL.A.NO.771\/2006                        3<\/span><\/p>\n
  Excise     Manuel     while    conducting   search   and   seizure   of   the<\/p>\n
  contraband  article.\n<\/p>\n
  3.       The   prosecution     tried   to   prove   the     case   against   the<\/p>\n
  appellant through the evidence of Pws 1 to 3 of whom  PW1 is<\/p>\n
  an independent witness,  cited to prove  the  seizure, sampling<\/p>\n
  and other actions followed  by PW3 while detecting the  crime<\/p>\n
  against the appellant.     But, this witness turned hostile to the<\/p>\n
  prosecution   and   even   denied   his   signature     in   Ext.P2     scene<\/p>\n
  mahazer as well as  the  samples and  the residue  PW3  is the<\/p>\n
  S.I of Police,  Koodal  Police Station, who had stated that while<\/p>\n
  he   was   on     duty   on   6.4.2003   at   about   10.45   a.m     he     got<\/p>\n
  reliable  information that the  appellant  was selling arrack  at<\/p>\n
  the     KIP   Canal     Purampoke,   Kanjiramoodu,   Kalanjoor   Muri<\/p>\n
  village  and  on getting  the above information, PW3 along with<\/p>\n
  PW2   and     another   police       constable     reached   the   spot   and<\/p>\n
  found   the appellant     having   in possession    of a glass and a<\/p>\n
  bottle and on seeing the police officers, the appellant tried to<\/p>\n
  escape from the scene.   However,  the  Sub Inspector of Police<\/p>\n
  stopped him and questioned him and thereafter  found   MOs 1<\/p>\n
  and   2   cans     containing     35   liters     and   10   liters   of     arrack<\/p>\n
CRL.A.NO.771\/2006                        4<\/span><\/p>\n
  respectively  at the  place   from where    the   appellant tried to<\/p>\n
  escape.     Further it is noted   that MO3 bottle was in his hand<\/p>\n
  which contained  one liter of arrack.  It is  also found that MO4<\/p>\n
  glass   was     also   in   the   possession   of   the   appellant.       This<\/p>\n
  witness   has   further   stated   that   on   preparing   Ext.P2     scene<\/p>\n
  mahazar,  MOs  1    to  4   were  seized  at the  spot and    samples<\/p>\n
  were     taken   from   the     two   cans   as   well   as   from   the   bottle.\n<\/p>\n
  This   witness   has   further   stated   that     on   taking   two   samples<\/p>\n
  each   from   MOs   1   to   3,     the   samples   were   got   sealed   and<\/p>\n
  labeled  and   signed by the witnesses as well as the appellant.\n<\/p>\n
  This  witness   has  further  stated  that  after   seizing   MOs  1  to  4<\/p>\n
  from   the   appellant,     the   samples   and   the   residue   and   MO4<\/p>\n
  were produced  before the court on the very next day, namely<\/p>\n
  on 7.4.2003.  Further,  this witness has stated that the samples<\/p>\n
  were     got     analysed   and     received     Ext.P8     chemical   report,<\/p>\n
  which   would   show   that     all   the       samples     contained   ethyl<\/p>\n
  alcohol   of     different     volumes.     It   is   proved   that   the   samples<\/p>\n
  were  that of  illicit  arrack.     On   the  basis   of   Ext.P8  chemical<\/p>\n
  report and after  completing  the investigation,  a final  charge<\/p>\n
  has been   filed   before  the  court.      PW2  is  a   Head Constable,<\/p>\n
  who   accompanied   PW3   while     detection     of   the   the     crime.\n<\/p>\n
CRL.A.NO.771\/2006                         5<\/span><\/p>\n
  He   had   stated   before   the   court   that   on   6.4.2003,     himself,<\/p>\n
  PW3       and     another     constable     went   to   the   KIP   Canal<\/p>\n
  Purampoke     road   and     seen     the   appellant     standing     there<\/p>\n
  holding  MO4 glass and  also Mos 1 to 3.   Further  this witness<\/p>\n
  has   stated   that     seeing   PW3   and     the   other     witness,     the<\/p>\n
  appellant tried to   escape from the scene.     However, he was<\/p>\n
  stopped by Pw3 and questioned  and found that   the appellant<\/p>\n
  was in possession of MOs 1 and 2 cans and MO3 bottle which<\/p>\n
  contained     35   and     10   liters     and   one     liter   of   arrack<\/p>\n
  respectively.       This     witness   had   further   stated   that       two<\/p>\n
  samples   were     taken   from   each   of   the   cans   as  well   as     MO3<\/p>\n
  bottle.   Further, this witness  had stated that on search of the<\/p>\n
  body of the appellant,    two  ten rupee notes were also   found<\/p>\n
  in   the     pocket   of   the     appellant   and     that   rupee   notes     were<\/p>\n
  also seized  by PW3.\n<\/p>\n
         3.      The   question   to   be   decided   in   this   appeal   in   the<\/p>\n
  light  of  the   contentions     taken  by  the   learned   counsel  is  that<\/p>\n
  whether  the trial court is justified in finding that the appellant<\/p>\n
  is     guilty     under   Section   8(1)     read   with   Section   8(2)     of   the<\/p>\n
  Abkari   Act   or   not.       The     prosecution   case   is   that   on   getting<\/p>\n
CRL.A.NO.771\/2006                          6<\/span><\/p>\n
  reliable   information   on   6.4.2003,       PW3   and   other   police<\/p>\n
  constables   including   PW2   went   to   the   spot   and   found     the<\/p>\n
  appellant   keeping in   possession of MOs 1 to 4.       But  the<\/p>\n
  contention   of   the   learned   counsel   that   only   the   evidence   of<\/p>\n
  official  witness is available.   Though    PW1 was  examined as<\/p>\n
  independent   witness,     he   had   turned   hostile                       to   the<\/p>\n
  prosecution.     PW1 had stated that he had not   seen anything<\/p>\n
  at the spot as spoken to by Pws  2 and 3.   He  had also  denied<\/p>\n
  his   signature   in   Ext.P2,     the   sample   and   the     contraband<\/p>\n
  article     seized.         In   this   context,     the   2nd    contention   of   the<\/p>\n
  learned     counsel   appearing   for   the       appellant   assumes<\/p>\n
  importance.     When Pw3 was cross examined by the   counsel<\/p>\n
  appearing   for   the     appellant   before   the     court   below,   he   had<\/p>\n
  stated that   PW1 was there as an independent witness.   Exts.\n<\/p>\n
  P1 and P1(a)  are the statements  recorded by the police under<\/p>\n
  Section   161   of   the   Code   of   Criminal   Procedure.         But,     the<\/p>\n
  contention  of  the  learned  counsel   is that  it   is the  duty  of  the<\/p>\n
  Police Officer or the Excise Official   to call and to get at least<\/p>\n
  two independent witnesses while they make  search and other<\/p>\n
  actions       under   the   provisions   of   the   Abkari   Act.       To<\/p>\n
  substantiate       this   contention,   the   learned   counsel   cited       a<\/p>\n
CRL.A.NO.771\/2006                          7<\/span><\/p>\n
  judgment of this Court reported in   Ramachandran Nair   v.\n<\/p>\n
  State (1990 (1) KLT 44).  In  the above  judgment,  this Court<\/p>\n
  held   that     “the   words     “persons     called   upon   to   attend   and<\/p>\n
  witness   such   search     shall     include       at   least   two   persons”\n<\/p>\n
  indicate legislative  insistence for  strict  compliance  with the<\/p>\n
  proviso.    When the statute uses the  expressions such as  “at<\/p>\n
  least”,   it   must   be   understood   that     the   minimum   number<\/p>\n
  required   for     its   performance       when   it   falls   to   below   the<\/p>\n
  minimum   number   the     officer   who   makes     the     search   has   a<\/p>\n
  duty to   explain the   reason for   not adhering to the minimum<\/p>\n
  requirement.     If such explanation is acceptable to   court, the<\/p>\n
  seizure  or search may not   get vitiated”.     The   duty   cast on<\/p>\n
  the officials   is not only   the actions   taken under Section   36<\/p>\n
  but also all  provisions  of the Abkari Act.\n<\/p>\n
  4.     In   the   case     in   hand,     it   is     come   out   in   evidence   that<\/p>\n
  when Pws 2 and 3 and other police officials   went to the spot,<\/p>\n
  the   appellant   was     found   in   possession   of   the     contraband<\/p>\n
  articles   and     on   preparing     Ext.P2   scene   mahazer,   the   same<\/p>\n
  were recovered.     In  Ext.P2 it is  clearly  stated that PW1,   an<\/p>\n
  independent   witness,   was     also   there   as     Ext.P2   would   show<\/p>\n
CRL.A.NO.771\/2006                           8<\/span><\/p>\n
  the   name   and   signature     of   PW1.       But,   when     PW1   was<\/p>\n
  examined  he stated that  he was not present at the  spot at all<\/p>\n
  and he   even denied the signature in Ext.P2,  the   sample and<\/p>\n
  the     contraband   article     seized     by   PW3.     In   the   cross<\/p>\n
  examination, this witness   had  stated  that  he was not in the<\/p>\n
  scene  at all  during  the  relevant  time.      In  this  context,   PW3<\/p>\n
  was   cross   examined   by   the     defence   and     put   specific<\/p>\n
  questions regarding   getting any other witnesses to watch the<\/p>\n
  seizure  and  taking the samples.   No explanation   was offered<\/p>\n
  by   PW3     whether   he     called   at   least     two   independent<\/p>\n
  witnesses   to watch his  performance.     It is pertinent  to note<\/p>\n
  that,   he had admitted   the   fact     that   there   were inhabited<\/p>\n
  houses and none of the  people was  called to watch the action<\/p>\n
  taken   by   PW3.       Very   interestingly   this   Court   is     noting<\/p>\n
  another fact that when  PW2 was examined  before the  court,<\/p>\n
  he   had   no   case   that   PW1     was   present   at   the   time   of     the<\/p>\n
  detection of the crime.         Further it could be   seen from Ext.\n<\/p>\n
  P2   that,       it   is   recorded   in   it       that,     the     samples   and   the<\/p>\n
  contraband    article    were    sealed  and  labeled and signatures<\/p>\n
  were obtained from the accused, PW3 and  other witnesses.   It<\/p>\n
  is not stated that  whether PW1 had signed  any of the samples<\/p>\n
CRL.A.NO.771\/2006                        9<\/span><\/p>\n
  labeled and  sealed.   Further, when PW3  was cross examined,<\/p>\n
  a specific   question was put to him   whether any independent<\/p>\n
  witness   has   been   called   to     watch   his   action.     He   had   given<\/p>\n
  the answer that:\n<\/p>\n
   Either PW2 or PW3 had no case that  any independent witness<\/p>\n
  has been    called   to  watch  the     action     done     by   PW3.         The<\/p>\n
  contention of the  learned counsel that PW3  has  violated   the<\/p>\n
  mandatory   provision     of   Section   36     has   to   be     considered<\/p>\n
  seriously   and   the     non   compliance   of     the   above   provision   is<\/p>\n
  vital to the  prosecution.       As per  the   dictum   laid    down by<\/p>\n
  this   Court   in  Ramachandran’s    case     it     is   the   duty   of   the<\/p>\n
  officer   to   explain   why     he   could   not   get     the   presence   of   at<\/p>\n
  least   two independent   witnesses.       This Court   has already<\/p>\n
  found     that     either   PW2   or   PW3   had   not     offered   any<\/p>\n
  explanation     why   PW3   had   not   tried   to     get   the   presence   of<\/p>\n
  independent   witness     to   watch   his   performance.         In   this<\/p>\n
  context,     the   dictum   laid   down   by   the   Apex   Court   in   the<\/p>\n
  judgment   reported   in  M\/s.     Madan     &   Company   v.   Wazir<\/p>\n
CRL.A.NO.771\/2006<\/span><\/a>                         10<\/p>\n
  Jaivir     Chand  (AIR   1989   SC   630)   in   which   the   Apex     Court<\/p>\n
  relying   on   the     often     quoted     judgment   of   the     Chancery<\/p>\n
  Division in   Tayler v. Tayler     (1875 (1) Ch D 426)   held that<\/p>\n
  where  power is given to  do a certain   thing in a certain   way,<\/p>\n
  thing     must   be   done   in   that   way   or   not     at   all     that     other<\/p>\n
  methods   of   performance     are     “necessarily     forbidden”.\n<\/p>\n
  Though the prosecution  tried to prove  that the appellant was<\/p>\n
  in   possession   of   MOs   1   to   4   and     found   that   he   was   in<\/p>\n
  possession of the  contraband article seized by the  police, it is<\/p>\n
  the   duty   of   the   prosecution   to     prove     the       seizure   of   the<\/p>\n
  contraband   article     and     taking   of   the   sample   and   other<\/p>\n
  actions   followed   by   PW3   were   in   accordance   with   the<\/p>\n
  provisions   of the  Abkari Act.  Hence, this Court is of the view<\/p>\n
  that if the  mandatory provision was not  complied with, it will<\/p>\n
  vitiate   the proceedings     followed by PW3.   Another question<\/p>\n
  may come whether   non-compliance of Section 36   cause   any<\/p>\n
  prejudice to the appellant.   In this context,  the learned Public<\/p>\n
  Prosecutor   placed   reliance     on   the   judgment   of   this   Court<\/p>\n
  reported in  Job  v. State of  Kerala<\/a>  (1991 (1) KLT  491).  In<\/p>\n
  the above  judgment, a learned Single  Judge of this Court had<\/p>\n
  considered   the     decisions   in  Ramachandran’s   Case  (cited<\/p>\n
CRL.A.NO.771\/2006                        11<\/span><\/p>\n
  supra)   and   held   that     the   dictum   laid   down     in   the   above<\/p>\n
  judgment   is   not   applicable   to   search   of   a   person,   but   it   is<\/p>\n
  applicable   to     search   of   a   place.       But     in  Ramachandran’s<\/p>\n
  case,  this Court had categorically   held that the   provision of<\/p>\n
  Section   99   or   102   of   the     Cr.P.C     is   different     from   that   of<\/p>\n
  provision   of   Section   34   of   the   Abkari   Act   and   this   Court   had<\/p>\n
  held that  the legislative insistence  for  contradict  compliance<\/p>\n
  with   the   proviso       has   to   be   considered   while   considering<\/p>\n
  Section   34 of the Act.     The facts now   proved     in this case<\/p>\n
  would   show   that     Pws2   and   3     had   no   case     that   two<\/p>\n
  independent witnesses were called   or   they were present for<\/p>\n
  watching   the   performance of PW3 and   that apart this Court<\/p>\n
  had   already   found     that   PW2     has   not   stated       even   the<\/p>\n
  presence of PW1.  In the light of  the evidence of PW1 that  he<\/p>\n
  was not present at   the scene and he denied his  signature in<\/p>\n
  Ext.P2,     the   case   suggested   to     Pws   2   and   3   are     also   be<\/p>\n
  considered in this background.     It is specifically suggested to<\/p>\n
  PWs 2  and 3  that the  case was   foisted against the  appellant<\/p>\n
  and all  the materials   produced were substituted    as if   were<\/p>\n
  seized   from the appellant.     Though    those suggestions were<\/p>\n
  denied   by   Pws   2   and   3   in   the   light   of   the   fact   that     the<\/p>\n
CRL.A.NO.771\/2006                      12<\/span><\/p>\n
  appellant     was     charge   sheeted     and   faced   trial     for     some<\/p>\n
  allegations  and he was   found guilty  for the   same offence in<\/p>\n
  a prior  case,  the possibility of  substitution of the  contraband<\/p>\n
  cannot be  ruled out.  Hence, non-compliance of  Section 36 is<\/p>\n
  prejudicial  to the appellant.\n<\/p>\n
         Hence,  this Court  is of the view that  the judgment of the<\/p>\n
trial court has   to be   set aside.       Accordingly,   the   conviction<\/p>\n
and  sentence  ordered  against the appellant  are set aside and<\/p>\n
the   appeal   is   allowed.       The   appellant   is   acquitted.         The<\/p>\n
appellant,   accused,   in     S.C.No.447\/2004     on   the   file   of   the<\/p>\n
Additional   District   and   Sessions     Judge   (Adhoc)   Fast   Track<\/p>\n
Court-III,  Pathanamthitta,    shall  be  released   forthwith, if  he  is<\/p>\n
not required to be kept in jail in connection with any other case.\n<\/p>\n
                                              K. THANKAPPAN, JUDGE.\n<\/p>\n
  cl<\/p>\n
CRL.A.NO.771\/2006                                                     13<\/span><\/p>\n
                                                                              K. THANKAPPAN, J.\n<\/p>\n
                                                                          CRL.A.NO. 771 OF 2006<\/p>\n
                                                                                JUDGMENT<\/p>\n
                                                                                10th  January, 2007.\n<\/p>\n
CRL.A.NO.771\/2006     14<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Anil vs State Of Kerala on 10 January, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 771 of 2006(C) 1. ANIL, … Petitioner Vs 1. STATE OF KERALA, … Respondent For Petitioner :ADV.LIJU V STEPHAN(STATE BRIEF) For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice K.THANKAPPAN Dated :10\/01\/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-94855","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAnil vs State Of Kerala on 10 January, 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\/anil-vs-state-of-kerala-on-10-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Anil vs State Of Kerala on 10 January, 2007 - 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