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BABU @ JOSEPH SAMUEL versus THE STATE OF KERALA

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BABU @ JOSEPH SAMUEL v. THE STATE OF KERALA - CRL A No. 2040 of 2006(C) [2007] RD-KL 2655 (6 February 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 2040 of 2006(C)

1. BABU @ JOSEPH SAMUEL,
... Petitioner

Vs

1. THE STATE OF KERALA,
... Respondent

For Petitioner :ADV.V.P JOLLY(STATE BRIEF)

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

Dated :06/02/2007

O R D E R

V. RAMKUMAR, J.

CRL.A.NO.2040 OF 2006 Dt. FEBRUARY 6, 2007

JUDGMENT

In this appeal preferred from the Central Prison, Thiruvananthapuram, the appellant who was the sole accused in S.C.No.134/2005 on the file of the Addl. Sessions Court (Ad Hoc - Fast Track No.II), Pathanamthitta, challenges the conviction entered and the sentence passed against him for an offence punishable under sec.8(2) of the Abkari Act.

2. The case of the prosecution is that on 5.4.2001 at about 6.15 p.m. on the Konathumukku - Varayannoor Marthoma Church panchayath road in Varayannoor muri of Koipuram village, the accused was found carrying about 1 litre of illicit arrack in a plastic bottle having a capacity of 1 = litres. The accused has thereby committed offences punishable under secs.8(1) and 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 offences punishable under secs.8(1) and 8(2) of the Abkari Act, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined six witnesses as PWs.1 to 6 and got marked twelve documents as Exts.P1 to P12 and one 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 circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence.

5. Since the court below 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 and to adduce any evidence which he might have in support thereof. The accused did not adduce any defence evidence.

6. The learned Addl. Sessions Judge, after trial, as per judgment dt. 19.4.2006 found the appellant guilty of the offence punishable under sec.8(2) of the Abkari Act and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs.1 lakh and, on default to pay the fine, to suffer simple imprisonment for one year. It is the said judgment which is assailed in this appeal.

7. I heard Adv. Sri V.P.Joly, the learned counsel who defended the appellant on State Brief ably assisted by Adv. Sri Pirappancode V. S. Sudheer, and Adv. Sri K.S.Sivakumar, the learned Public Prosecutor who defended the State.

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. PW.1 is the Excise Preventive Officer who accompanied the detecting Preventive Officer viz. CW.1 who was no more and therefore not available during trial. PW.2 is the Excise Guard who had accompanied CW.1, the Detecting Officer. PWs.3 and 4 are the independent witnesses to the arrest, search and seizure. They, however, turned hostile to the prosecution. PW.5 who was the Excise Inspector, Thiruvalla, conducted the preliminary investigation. PW.6 is the successor officer who completed the investigation and laid the charge.

10. Even though the testimony of PWs.1 and 2 who had accompanied CW.1, the detecting officer, can be accepted to believe that on 5.4.2001 at about 6.15 p.m. the accused was found carrying a plastic bottle having a capacity of 1 = litres containing some clear liquid believed to be illicit arrack, I am not satisfied that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt. The alleged contraband arrack which the accused was allegedly carrying in the plastic bottle can be held to be illicit arrack only on chemical confirmation of the contents of the bottle. Going by Ext.P2 contemporaneous mahazar prepared by CW.1 from the scene of detection itself, after apprehending the accused and suspecting that he was carrying illicit arrack in the plastic bottle held by him, CW.1 is alleged to have seized the plastic bottle under Ext.P2 mahazar after sealing the same. In Ext.P5 crime and occurrence report also it is stated that the contraband bottle was sealed by the detecting officer after it was seized from the possession of the accused. But what is seen produced on 6.4.2001 as evidenced by Ext.P7 property list is not a sealed bottle. Therefore, it cannot be conclusively held that the bottle which was seized from the possession of the accused and sealed by CW.1 was the bottle which was produced and received in court on 6.4.2001. If what has been produced before court is not the very same bottle which was seized and sealed under Ext.P2 mahazar, the contents of the said bottle, even if it is found to be arrack on chemical confirmation cannot be of help to the prosecution to connect the accused with the offence.

11. There is also enough confusion regarding the sampling and despatch of the same to the chemical examiner's laboratory. Admittedly, CW.1 did not take any sample from the plastic bottle seized by him. But Ext.P8 forwarding note filed on 6.4.2001 would indicate that a sample bottle having a capacity of 375 ml. containing 180 ml. of the sample was produced in court and the request under Ext.P8 was to forward the said sample to the chemical examiner's laboratory for analysis and report. P.W.5 would have it that the above statement in Ext.P8 forwarding note was a mistake and he accordingly filed Ext.P11 forwarding note on 20.4.2001 requesting that a sample containing 180 ml. be taken from the plastic bottle produced in this case. There is absolutely no material before court to show that the request in Ext.P11 forwarding note was complied with by the committal magistrate. Based on Ext.P10 office copy of the covering letter dt. 7.6.2001, the learned Public Prosecutor argued that when the letter of the magistrate while forwarding the sample to the chemical examiner states that it is the sample in O.R.14/2001 and it also refers to the number assigned to the plastic bottle while it was received as per the property list, it should be presumed that a sample was, in fact, drawn from the plastic bottle produced in this case and despatched to the chemical examiner's laboratory. It is the further contention of the Public Prosecutor that from Ext.P10 covering letter, official act of sampling could be presumed by resort to sec.114(e) of the Evidence Act.

12. I am afraid that I cannot agree with the above submission. If there was any record before court to show that a sample was indeed drawn from the plastic bottle received under Ext.P7 property list, then the regularity of such sampling could have been presumed by recourse to sec.114(e) of the Evidence Act. But there is no scrap of paper produced to show that a sample was indeed drawn from the plastic bottle produced in this case. The thondy section clerk who is the member of the court staff in charge of the properties received in a criminal court was neither cited nor examined as a witness. This court is kept in the dark as to who drew the sample and on what date. It is pertinent to note that the request for sampling under Ext.P11 forwarding note was on 20.4.2001. There is a long gap between 20.4.2001 and Ext.P10 covering letter of the magistrate dt. 7.6.2001. There is no evidence to show that anybody had taken a sample in between these two dates. Even assuming that it could be presumed that a sample was, in fact, drawn by a member of the court staff from the plastic bottle produced in this case some time between 20.4.2001 and 7.6.2001, it has already been seen that it cannot be conclusively held that the plastic bottle which was produced in court and which was not sealed is the very same plastic bottle which was seized under Ext.P2 mahazar.

13. It is well settled that in a case of this nature the prosecution can succeed in securing a conviction only if it is proved that the sample which was analysed by the chemical examiner was the very same sample which was drawn from the bulk quantity of contraband liquor allegedly carried by the accused. This is more so when such a sample had changed several hands (vide State of Rajasthan v. Daulat Ram - AIR 1980 SC 1314 and Valsala v. State of Kerala - 1993 (2) KLT 550 (S.C.).

14. There is yet another incongruity in the prosecution evidence. If we go by Ext.P10 office copy of the covering letter sent by the magistrate while forwarding the sample to the chemical examiner's laboratory, the date of the letter is 7.6.2001. But what Ext.P9 report of the chemical examiner reads is a letter dt. 6.6.2001 sent by the JFCM-I, Thiruvalla. So, either the date of the letter referred to in Ext.P9 report is a mistake or the date of Ext.P10 office copy of the covering letter is a mistake. There was no attempt to explain this apparent contradiction.

15. The result of the foregoing discussion is that the conviction entered and the sentence passed against the appellant overlooking these vital aspects of the matter cannot, therefore, be sustained and are, accordingly, dislodged. The appellant is found not guilty of the offence punishable under sec.8(2) of the Abkari Act and is acquitted thereunder. He is set at liberty. He shall be released from the prison forthwith unless his continued detention is found necessary in connection with any other case.

(V.RAMKUMAR, JUDGE)

mt/-

V. RAMKUMAR, J.

CRL.A.NO.2040 OF 2006 Dt. FEBRUARY 6, 2007

JUDGMENT


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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