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VASUDEVAN, S/O.CHITHIRAN, C.NO.650 v. THE STATE OF KERALA - CRL A No. 1490 of 2006(B)  RD-KL 2737 (6 December 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCRL A No. 1490 of 2006(B)
1. VASUDEVAN, S/O.CHITHIRAN, C.NO.650,
1. THE STATE OF KERALA,
For Petitioner :A.BINDHU SREEKUMAR(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
O R D E R
V. RAMKUMAR, J.CRL.APPEAL No.1490 OF 2006 Dt. DECEMEBR 6, 2006
In this appeal preferred from the Central Prison, Thiruvananthapuram, the appellant who was the sole accused in S.C.No.388/2004 on the file of the Addl. Sessions Court (Fast Track Court No.I), Thiruvananthapuram challenges the conviction entered and the sentence passed against him by that court for an offence punishable under sec.55(a) of the Abkari Act.
2. The case of the prosecution is that on 21.2.2002 at about 10 a.m. on the public road leading to Adayamon from Kilimanoor in Pazhayakunnummel village, the accused was found in possession of 10 litres of illicit arrack in a black jerry can having a capacity of 10 litres. Since the said possession was in contravention of the provisions of the Abkari Act, the accused has, thereby, committed an offence punishable under sec.55(a) of the Abkari Act.
3. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 5 witnesses as PWs.1 to 5 and got marked 5 documents as Exts.P1 to P5 and 1 material object as M.O.1.
4. After the close of the prosecution evidence the accused was questioned under sec.313(1)(b) Cr.P.C. with regard to the incriminating CRL.A.1490/2006 2 circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He had the following to submit before court:- His house is situated about 1= kms. away from Chavettikkadu bridge. While he was cooking food in his house, the excise people came that way. He was beaten up stating that he was having illicit distillation of arrack. So stating he was taken to the Excise Office from where a mahazar was written. After taking him before the court he was put in the jail for 42 days after which he was released on bail. For the past two months he has been in jail. He has not distilled any arrack. He does not also know how to distill arrack. He is innocent and he may be let off.
5. Since the trial judge did not consider this a fit case for recording an order of acquittal under sec.232 Cr.P.C., the accused was called upon to enter on his defence. He did not adduce any defence evidence.
6. The learned Additional Sessions Judge, after trial, as per judgment dt. 1.6.2006 found the appellant guilty of the offence charged against him and he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1 lakh and, on default to pay the fine, to suffer rigorous imprisonment for one year. It is the said judgment which is assailed in this appeal.
7. I heard Adv. Smt. A.Bindu Sreekumar, the learned counsel appearing for the appellant on State Brief, and Adv. Sri Sivakumar, the learned Public Prosecutor who defended the State. CRL.A.1490/2006 3
8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not? THE POINT
9. PWs.1 and 2 are the independent witnesses who also figured as attestors to Ext.P1 mahazar and Ext.P2 arrest memo. Even though both of them admitted their signatures in EXts.P1 and P2, they turned hostile to the prosecution to say that they did not witness the search and seizure allegedly made by PW.5. PW.3 is the Excise Inspector, Chirayinkeezhu who registered Ext.P3 crime and occurrence report as Crime No.6/2002 of Chirayinkeezhu Excise Range. During the course of investigation he submitted the original of Ext.P4 forwarding note requesting to send 180 ml. of arrack taken from the bulk quantity to the chemical examiner for analysis and certificate. PW.4 was the Excise Inspector who laid the charge. Ext.P5 chemical analysis report to the effect that the sample analysed in this case contained 23.30% by volume of ethyl alcohol was marked through PW.4. PW.5 was the Excise Preventive Officer who detected the offence.
10. After an anxious re-appraisal of the oral and documentary evidence in the case, I am not satisfied that the prosecution has proved the case beyond reasonable doubt so as to justify the conviction entered and the sentence passed against the appellant.
11. Going by the testimony of PW.5, he is alleged to have detected
the accused carrying a black plastic
can having a capacity of 10 litres and
10 litres of illicit arrack on 21.2.2002 at about 10 a.m. while
PW.5 was on patrol duty. PW.5 claims to have
arrested the accused and
seized the can under Ext.P1 mahazar. Going by the testimony of PW.5 as
as the recitals in Ext.P1 mahazar, PW.5 did not draw any sample from
the can and he labelled the can and the signatures
of himself and the two
independent witnesses were put on the label pasted on the can and
he packed and sealed the can. PW.5 claims to have taken the
accused, the seized can and seizure documents to
the Chirayinkeezhu Excise
Office from where PW.3 claims to have registered the case as Crime
Ext.P3 is the crime and occurrence report prepared by PW.3.
But the can containing the contraband liquor was actually
produced in court
only on 14.3.2002 i.e. after 21 days of its alleged seizure. This is evident
from the property
list available in the records of the committal court. The
description of the can in the property list does not show that
it was sealed.
Going by the testimony of PW.5 and the recitals in Ext.P1 contemporaneous
mahazar said to have been prepared
by PW.5 from the spot itself, the can
was labelled and sealed before it was seized under Ext.P1 mahazar. But the
which was produced in court after 21 days was not sealed. There is
absolutely no explanation for
the long delay of 21 days in producing the can
before court. PW.3 who was examined in court four years after the detection
came out with an explanation for the first time that the delay was due to the
strike by the Government employees. The
said explanation can be accepted
only with a pinch of salt because a perusal of Exts.P1 to P3 will show that all
the three seizure documents reached the court on 21.2.2002 itself i.e. the
of detection. The accused was also produced before court on
21.2.2002. If the accused as well
as the seizure documents could be
produced before court on the very same day on which the
made, the explanation given by PW.3 that the can could not be produced
court for 21 days due to strike of Government employees is palpably
false. In the property list as per which the can was produced
before court on
14.3.2002 and received as T-77/2002, there is an endorsement which reads
"Thondy produced before court on 14.3.2002. The same may be returned to the Excise Officer, Chirayinkeezhu after taking sample for chemical examination." The can was accordingly returned to the Excise Inspector. There is nothing to show as to who took 180 ml. of sample and when. Ext.P5 certificate of chemical analysis shows that a sample containing 180 ml. was received in the chemical examiner's laboratory along with the covering letter of the magistrate dt. 5.4.2002. In the first place, the thondy section clerk who is the custodian of the thondy articles received in court was not cited or examined to prove the drawing of sample, packing and sealing of the same and despatching the same to the chemical examiner's laboratory. No independent proceedings are also recorded in any of the papers in the records of the committal court to show the date and mode of sampling and despatch of the same to the chemical examiner. The material object which CRL.A.1490/2006 6 was presumably returned to the Excise Inspector on 14.3.2002 was subsequently produced before the trial court only on 21.2.2006. M.O.1 was attempted to be proved as the can which was allegedly carried by the accused. But PW.5 frankly confessed that M.O.1 does not contain any of the signatures said to have been put on the label at the time of detection. When there is nothing on M.O.1 to indicate that it was the can seized from the accused, the identification by PW.5 four years after the detection to say that M.O.1 was the can allegedly seized from the accused cannot be safely acted upon.
12. Even assuming that a sample was duly taken from the committal court from the can which was produced before court on 14.3.2002, when the said can was not seen sealed as against the testimony of PW.5 that the can which he seized under Ext.P1 mahazar was sealed, it cannot be held that the sample which ultimately reached the hands of the chemical examiner was drawn from the contraband liquor allegedly seized from the accused. Going by the decisions reported in State of Rajasthan v. Daulat Ram - AIR 1980 SC 1314 and Valsala v. State of Kerala - 1993 (2) KLT 550 of the apex court, the prosecution has a duty to prove that the sample which admittedly changed hands and which ultimately reached the hands of the chemical examiner was the very same sample which was drawn from the contraband substance allegedly seized from the accused. There is no satisfactory link evidence to prove this aspect of the matter as well.
13. There is thus no explanation to the effect that the thondy article CRL.A.1490/2006 7 was kept in proper custody till it was produced in court after 21 days. PW.3 or PW.5 have no case that until the can was produced in court, it was in their safe custody. Therefore, in the light of the decision in Narayani v. Excise Inspector - 2002 (3) KLT 725 the chance of tampering with the material object also cannot be ruled out particularly in view of the fact that the can which was produced in court was not sealed and the production of the can itself was after 21 days.
14. The conviction entered and the sentence passed by the court below overlooking these vital aspects cannot be sustained and are dislodged. The appellant is found not guilty of the offence punishable under sec.55(a) of the Abkari Act and is accordingly acquitted of the same. He is set at liberty. He shall be released from prison forthwith unless his continued detention is warranted in connection with any other case against him. In the result, this appeal is allowed and the conviction entered and the sentence passed against the appellant are set aside as above.
(V.RAMKUMAR, JUDGE)mt/- CRL.A.1490/2006 8
V. RAMKUMAR, J.CRL.APPEAL No.1490 OF 2006
DECEMEBR 6, 2006
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