IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 CRL.A.No. 960 of 2002() --------------------------------- SC.341/2000 of III ADDL. SESSIONS COURT (FAST TRACK COURT NO.I), THRISSUR .................... APPELLANTS/ACCUSED NOS. 1 TO 6 ----------------------------------------------------- 1. AJAYAN S/O. VELAYUDHAN, MODANPLACKKA HOUSE, KUTTICHIRA VILLAGE. 2. PRABHAKARAN, S/O. VELAYUDHAN, PALLATHPARAMBIL HOUSE, KUTTICHIRA. 3. MANOHARAN, S/O. KEEZHARA KANDUNNI, KUTTICHIRA. 4. SUBRAMANIAN, S/O. VELAYUDHAN, ARIMBANAKKAL HOUSE, KUTTICHIRA, VILLAGE. 5. DHANANJAYAN, S/O. ARAVINDHAKSHAN, MODANPLACKA HOUSE, KUTTICHIRA. 6. LOHIDAKSHAN S/O. SUBRAN, PALLATHERI HOUSE, KUTTICHIRA. BY ADV. MR.P.VIJAYA BHANU MR.P.M.RAFIQ RESPONDENT/COMPLAINANT ------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. --------------------------- CRL.A.NO.960 OF 2002 ------------------------------ Dated this the 2nd day of June, 2009 JUDGMENT This appeal is preferred against the conviction and sentence passed by the 3rd Additional Sessions Judge(Fast Track Court-I,) Thissur in S.C.No.341/2000. Altogether there are 7 accused, out of which the 7th accused is absconding. The court below found all the six guilty under Section 55 (a) of the Abkari Act and thereafter convicted and sentenced them to undergo R.I for a period of two years and to pay a fine of Rs.One lakh each. It is against that decision accused Nos.1 to 6 have come up in appeal. The points that arise for determination are (1) whether the court below was justified in holding that there is sufficient evidence and materials to convict the accused under Section 55(a) of the Abkari Act. (2) whether the conviction and sentence requires interference. 2. Points 1 and 2: The brief facts necessary for the disposal of the appeal are as follows: 3. On 9.7.1998 while on patrol duty, the police got the 2 CRL.A.NO.960/2002 information of selling of illicit arrack and therefore they proceeded and at about 9.30 p.m near a fallen cashew tree in the vacant plot of Karappan they found accused Nos.1 to 5 in furtherance of their common intention to sell arrack by possessing 10 liters of each in 5 jerry can and accused 6 and 7 possessed a empty sack and 2 liters of jerry can and thereby committed the offences punishable under the Act. The prosecution, according to the learned counsel for the appellant, had miserably failed to prove the property list, seizure and further that seizure is quite illegal and a conviction cannot be based on the basis of such. It is also mentioned about the fact that one cannot say whether the bottles sent were is from the liquid collected from the accused. The material document is Ext.P1. In Ext.P1, we find that the police had proceeded to the spot and had caught hold of accused Nos.1 to 5. But, no where in Ext.P1 there is recital to the effect that the samples taken were sealed and signed in the presence of the accused and witnesses. The seizure is at about 9.30 p.m on 9.7.1998. The property list would show that it was produced before the court on 10.7.1998. The property list is seen prepared on 3 CRL.A.NO.960/2002 10.7.1998 and there are 4 items of material objects produced before the court. The second item relates to the alleged sealed bottles taken and according to the property list, 10 bottles i.e., two from each can were taken as sample. Others are larger containers of 10 liters, a torn gunny bag and a black cannas. Learned Magistrate has ordered to verify and receive it on 10.7.1998 and submission is given to the Magistrate that except samples, all items may be entrusted to the S.I. of Police for safe custody and the property was received by the Junior Superintendent on 14.7.1998. Learned counsel for the accused had brought to my notice the following for kind consideration. 4. According to the prosecution, 10 bottles of arrack had been sampled and sealed. But, according to the prosecution, 5 had been sent for chemical analysis. The remaining 5 bottles, as per the endorsement in the search list, have necessarily to be in the custody of the court. No explanation is forthcoming where these bottles are. There is a case for the accused that the samples alleged to have taken is not properly sealed or signed by any person. But, I find from the chemical 4 CRL.A.NO.960/2002 analysis report that the 5 bottles received there were sealed and it was tagged. When a contention is raised, there must be some explanation tendered with respect to the five bottles which is supposed to be in the court. Suppose those bottles had been produced, the contention of the accused that none of the bottles had been properly sealed would have gone to insignificance. If there were proper seals and that the bottles were available certainly an attempt should have been made to produce them. Another important point is that it is the definite case of the prosecution that two bottles of sample were taken from each of the containers from each of the 5 accused. It is the paramount duty of the prosecution to prove that the 5 bottles sent were the samples taken from the 5 containers. There are absolutely no materials to show that it is so. Therefore, one cannot say which were the samples that were sent for chemical analysis and of which accused those sample dealings and therefore it had created a considerable amount of confusion which entitles under law that the benefit should go in favour of the accused. PW1 when examined had deposed before the court about the sampling but when 5 CRL.A.NO.960/2002 he was questioned he is not able to say why it had not been stated so in Ext.P1. It has also come out from his evidence that the material object entrusted back to the police for safe custody to be produced did not contain the seal but only a part of the label was seen in MO1(a). So, it also creates suspicion in the mind of the court. Forwarding note is a material document which would show what materials are to be sent for chemical examination and it would have the description. But strangely, even though there are lot of confusions created, that document is not attempted to be marked at all. So, there is confusion created. When cross examined, he would say that there is no reason in not recording that labels had been affixed. Sealing of the cans is also equally absent in the scene mahazer and according to Pw1, there is no reason for the same. Now, this Court in the decision reported in Sasidharan v. State of Kerala (2007 (1) KLT 720) had dealt with the way in which the sampling, sealing etc has to be done. It was a case where there was no evidence to show that sample was taken from the container which was seized by the authorities The court officials were also not 6 CRL.A.NO.960/2002 examined and therefore, the court held that it is not a proper seizure and sealing and therefore granted the benefit of doubt to the accused. 5. Learned trial judge had not considered these matters very seriously. But it is stated that it did not cause any prejudice to the accused and further the chemical analysis report shows the presence of alcohol. But the material point which the prosecution has to establish is to the effect that the liquid which was seized from them was properly seized and it was part of that liquid that had been sent for chemical analysis report. As discussed by me earlier in this case, 5 samples alleged to be taken are missing, only 5 bottles alone were sent for chemical analysis report. Even the forwarding note is not marked before the court. So all these things create a doubt in the mind of the court regarding the actual seizure, sealing and sending for chemical analysis. When it is so, it is inevitable that the benefit of doubt has to go the accused. Therefore, I am constrained to apply the said theory and grant the benefit of doubt to the accused in this case. Unfortunately, all is not well with the prosecution story. 7 CRL.A.NO.960/2002 Therefore, conviction and sentence passed by the trial court is set aside and the benefit of doubt is given to the accused and accused Nos.1 to 6, who are the appellants before this Court, are found not guilty of the offence under Section 55 (a) of the Abkari Act and they are acquitted and set at liberty. M.N. KRISHNAN, JUDGE cl 8 CRL.A.NO.960/2002 9 CRL.A.NO.960/2002