BAIL SLIP The Appellant/Accused namely Vijayan S/o.Avinashi was directed to be release on Bail in and by the order of this Court dated 15.7.2002 and made in Crl.M.P.No.6468/02 in Crl.Appeal No.1028 of 2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.06.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1028 of 2002 Vijayan ... Appellant/Accused Vs. The State Rep. by: The Inspector of Police, Avinashi P.E.W. Coimbatore District Cr.No.2530/2000 ... Respondent/Complainant This Criminal Appeal has been filed under Section 374(2) of Criminal Procedure Code as against conviction and sentence imposed in S.C.No.94/2002 dated 04.07.2002 by the learned Additional District Sessions Judge (Fast Track Court No.5), Tiruppur and to set aside the same. For Appellant : Mr.C.Ramkumar For Respondents: Mr.J.C.Durairaj, Govt. Advocate (Crl. Side) J U D G M E N T The sole appellant, who stood charged for offences punishable under Sections 4(1)(a) and 4(1)(i) of the Tamil Nadu Prohibition Act and an offence punishable under Section 4(1-A) of Tamil Nadu Prohibition Act and convicted for offences punishable under Section 4(1)(aa) read with Section 4(1)(b) and Section 4(1)(i) read with Section 4(1)(c), with simple imprisonment for a period of six months and a fine of Rs.2,000/- with a default sentence of one month simple imprisonment in case of default in payment for the offence under Section 4(1)(aa) read with Section 4(1)(b) and Simple imprisonment for a period of two months and a fine of Rs.1,000/- with a default sentence of one week simple imprisonment in case of default in payment for the offence punishable under Section 4(1)(i) read with Section 4(1)(c) of Tamil Nadu Prohibition Act and acquitted of the offence punishable under Section 4(1-A) of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Prohibition Act, has brought-forth this appeal under Section 374 Cr.P.C. against the above said conviction and sentence. 2. The facts leading to the filing of the present criminal appeal, in brief, as follows:- In a case registered as Cr.No.2530/2000 on the file of PEW, Avinashi Unit, Avinashi, one Thiru.N.Sampathkumar, Inspector of Police of the said PEW Unit submitted a final report after completion of investigation on 28.03.2001 alleging that the appellant herein/accused had committed the following offences: i) an offence punishable under Section 4(1)(i) of Tamil Nadu Prohibition Act; ii) an offence punishable under Section 4(1)(a) of Tamil Nadu Prohibition Act; and iii) an offence punishable under Section 4(1-A) of Tamil Nadu Prohibition Act. The same was taken on file by the learned Judicial Magistrate, Avinashi (in-charge) as PRC No.35/2001. After furnishing the copies of the records relied on by the prosecution under Section 207 IPC, the learned Judicial Magistrate committed the said case for trial under Section 209(a) to the Principal Sessions Judge, Coimbatore Sessions Division, Coimbatore as one of the offences, namely an offence punishable under Section 4(1-A) of the Tamil Nadu Prohibition Act was exclusively triable by a court of session. The learned Principal Sessions Judge, Coimbatore Sessions Deivision, took it on file as S.C.No.94/2002 and made it over to the Assistant Sessions Judge (Sub Judge, Tiruppur) for disposal according to law. Subsequently, after constitution of Fast Track courts in the State of Tamil Nadu and one at Tiruppur, the case was transferred to the file of the Additional District and Sessions Judge (Fast Track Court No.5), Coimbatore Sessions Division, Tiruppur by the order of the learned Principal Sessions Judge, Coimbatore dated 30.04.2002 made in his proceedings No.673/2001. After the case was thus transferred to the file of the Additional District and Sessions Judge (Fast Track Court No.5), Coimbatore Sessions Division at Tiruppur, the said trial court framed charges:- a) for an offence punishable under Sections 4(1)(a) and 4(1) (i) of Tamil Nadu prohibition Act; And b) for an offence punishable under Section 4(1-A) of Tamil Nadu Prohibition Act. The appellant herein/accused pleaded not guilty. As many as five witnesses were examined as P.Ws.1 to 5, eight documents were marked as Exs.P1 to P8 and six material objects were produced as M.Os.1 to 6 on the side of the prosecution in order to substantiate the charges framed against the appellant herein/accused. 3. After completion of recording the evidence on the side of the prosecution, the appellant herein/accused was questioned under Section 313(1)(b) of Cr.P.C regarding the incriminating materials found in the evidence adduced on the side of the prosecution. He https://hcservices.ecourts.gov.in/hcservices/ denied them as false and once again reiterated that he was innocent. No witness was examined and no document was marked on the side of the appellant herein/accused. 4. The learned trial judge heard the arguments advanced on either side, considered the evidence brought before it in the light of the said arguments and upon such consideration, recorded a finding that the prosecution had not proved the second charge, namely the charge for an offence punishable under Section 4(1-A) of Tamil Nadu Prohibition Act. However, it came to a conclusion that charge no.1, namely the charge for offences punishable under Section 4(1)(a) and 4(1)(i) stood proved beyond reasonable doubt. But, at the same time, the learned Trial Judge held that the proof of the said charge would invite separate punishment under Sections 4(1)(b) and 4(1)(c) of the Prohibition Act. The court below recorded a conviction for offences punishable under Sections 4(1) (a), 4(1)(aa) and 4(1)(i). After examining the appellant herein/accused under Section 235(2) of Cr.P.C, though the appellant herein/accused was convicted for offences punishable under Sections 4(1)(a), 4(1)(aa) and 4(1)(i) of the Tamil Nadu Prohibition Act, the court below imposed a sentence of six months simple imprisonment and a fine of Rs.2,000/- along with a default sentence of one month simple imprisonment for the offence punishable under Section 4(1)(b) and two months simple imprisonment and a fine of Rs.1,000/- along with a default sentence of one week simple imprisonment under Section 4(1)(c) of the Tamil Nadu Prohibition Act, as indicated supra. 5. As against the said judgment of conviction and order of punishment, the appellant herein/accused has come forward with the present appeal on various grounds set out in the appeal petition. 6. Advancing arguments on behalf of the appellant, Mr.C.Ramkumar, learned counsel submitted that the judgment of the court below convicting the appellant herein/accused for the above said offences was against law, weight of evidence and probabilities of the case; that the court below failed to take note of the fact that the very document setting the law in motion, namely FIR was not proved by examining the author of the complaint; that the court below failed to note that there were material contradictions in the evidence adduced on the side of the prosecution, which would improbablise the case of the prosecution or at least give rise to a reasonable doubt regarding the prosecution version; that the court below simply brushed aside the contention of the appellant herein/accused that the charge as framed against the appeal could not be maintained; that the court below failed to note that the case was one foisted for the purpose of securing an order of detention under Act 14 of 1982 and that the court below created utter confusion which would be apparent from the variation from the offence with which the appellant stood charged and the penal provision under which he was punished by the court below. https://hcservices.ecourts.gov.in/hcservices/ 7. It is the further contention of the learned counsel for the appellant that the court below, having come to the conclusion that the case of the prosecution as if the author of the complaint was affected after consuming the arrack purchased from the appellant herein/accused, had not been proved and that hence the charge made against the appellant herein/accused for an offence of selling or possessing ID arrack mixed with a poisonous substance punishable under Section 4(1-A) of the Tamil Nadu Prohibition Act had not been proved, should have also come to the conclusion that the entire prosecution story built up on the said complaint based on which the case was registered should also be disbelieved; that the many contradictions and improbabilities found in the prosecution story had not been properly appreciated by the court below and that had they been properly adverted to, the court below would have given a clean chit to the appellant herein/accused by acquitting him of all the offences with which he stood charged. The learned counsel for the appellant also pointed out the fact that the prosecution failed to examine not only the author of the complaint but also the Investigating Officer, who completed the investigation and submitted a charge sheet and that the same would give rise to a reasonable suspicion regarding the prosecution story. 8. On the other hand, Mr.J.C.Durairaj, the learned Government Advocate (Crl. Side), representing the respondent police, submitted that sufficient evidence had been adduced on the side of the prosecution to show that the appellant herein/accused was found possessing 64 litres of ID arrack and that the samples drawn from the same were proved to contain atropine, a poisonous substance. It is the contention of the learned Government Advocate (Crl.Side) that the arrest of the accused, seizure of the contraband, drawing of samples from the contraband, seizure of the equipment used by the appellant herein and the money realised by him by selling the contraband and also the destroyal of the contraband after drawing samples, were proved beyond reasonable doubt by examining police officers who conducted the raid and one of the witnesses for the occurrence; that the fact that the ID arrack was recovered from the possession of the appellant herein/accused did contain atropine, a poisonous substance was also proved beyond reasonable doubt by the report and testimony of the Chemical Analyst and that hence there was nothing wrong in the trial court convicting the accused and sentencing him as indicated supra. 9. This court paid it anxious considerations to the submissions made by the learned counsel for the appellant and also by the learned Government Advocate (Crl.Side) representing the respondent police. The judgment fo the court below, appeal petition and other materials available on record were also proved. 10. It is not a case wherein the police officers of the Prohibition Wing went on for a raid before ever registering a case and during such raid, came across the appellant herein/accused selling ID arrack. On the other hand, the specific case of the https://hcservices.ecourts.gov.in/hcservices/ prosecution is that before ever the police officers went to the place of occurrence to arrest the accused and recover the contraband from him, they got concrete information in the form of Ex.P4 by one Subramani. Only based on the said complaint of Subramani, Ex.P5-First Information Report was recorded and the case was registered. P.W.2, the then Sub-Inspector of Police attached to PEW Wing, Avinashi Unit, is projected to be the person who registered the case on receipt of Ex.P4 complaint. But he did not make any investigation based on the FIR registered by him. On the other hand, in the FIR P.W.5 - Thiru.Maraimalai, the then Inspector of Police, PEW Wing, Avinashi has been referred to as the police officer, who would conduct investigation. 11. According to the prosecution case, it was P.W.5, who went to the place of occurrence along with P.W.1 - Murugesan and one Tamizh Murugan (not examined as a witness) to arrest the accused and recover the contraband from him. In the endorsement made by the Sub-Inspector of police on Ex.P4-complaint for the registration of the case, the time of receipt of the complaint and time at which the case was registered has not been noted. However, in Ex.P5- First Information Report prepared in the printed format, the said information was stated to be received at 12.30 p.m on 01.11.2000. But the said complaint was received in the court of the Judicial Magistrate only at 9.00 p.m on the said date. There is nothing in Ex.P4 or P5 to show that the de-facto complainant was referred to the hospital either for medical examination or for treatment. Neither P.W.2 nor P.W.5 - the first Investigating Officer has stated that he was referred to the hospital for treatment/medical examination. If at all it is true that the said de-facto complainant gave a complaint to the effect that his health was affected after consuming the liquor supplied to him by the appellant herein/accused and that he suspected presence of poisonous substance in the said liquor, the police officer who received the complaint and registered the case would not have omitted to send him to the hospital for treatment/medical examination. Apart from the same, the said de-facto complainant has not been examined as a witness on the side of the prosecution. No attempt was made on the side of the prosecution to examine him as a witness even though he was cited as witness No.1 in the Memo of Evidence annexed to the Final Report submitted by the Investigating Officer. No reason by way of explanation for non- examination of the de-facto complainant is forthcoming from the prosecution. Therefore, the very foundation of the case, namely Ex.P4-complaint and Ex.P5-First Information Report based on which the case of the prosecution against the appellant herein/accused has been built-up is shaken, as rightly pointed out by the learned counsel for the appellant. 12. It is the case of the prosecution that one of the samples drawn from the contraband seized from the appellant herein/accused in the scene of occurrence was sent to the Forensic Laboratory and the Chemical Analyst, on examination of the sample, has given a https://hcservices.ecourts.gov.in/hcservices/ report under Ex.P6 opining that the same was arrack and it contained atropine at 8.6 mg per 100 ml. P.W.3-Dr.Narayanan who was the Assistant Director of Regional Forensic Lab, Coimbatore during the relevant period, is said to have examined the sample and submitted his Chemical Analysis Report under Ex.P6. From the evidence of P.W.3 and his report Ex.P6, it is quite obvious that the sample sent to the Forensic Lab through the Judicial Magistrate was found to contain arrack mixed with atropine at 8.6 mg per 100 ml of arrack. P.W.4-Dr.Edwin Joe has been examined as an expert witness to prove the consequences of consuming arrack mixed with atropine. When he was asked to give opinion as to what would happen if a person consumes arrack mixed with atropine at the ratio 8.6 mg pr 100 ml of arracks, he gave his opinion under Ex.P7 stating that depending upon the physique of the person, if atropine measuring 30 mg to 150 mg got mixed in the blood, it would prove to be dangerous to life. In the case on hand, according to Ex.P4 – complaint the de-facto complainant Subramani, bought a glass full of arrack and consumed it. There is no evidence to show what was the capacity of the glass tumbler. The normal size of the glass will have the capacity of 150 to 200 ml. If that is taken into account, at the maximum of 17.2 mg of atropine alone would have been consumed along with the arrack by the de-facto complainant. As per the evidence of P.W.4, the same could not have resulted in danger to the life of the person who consumed it. 13. However, it is unnecessary to go into such question in this case, because the trial court itself has come to the conclusion that the prosecution case regarding the charge under Section 4(1-A) was not proved beyond reasonable doubt. The learned trial judge pointing out the fact that the de-facto complainant was not examined on the side of the prosecution and no evidence was adduced to show that his health was affected and he was given treatment for the same, arrived at a conclusion that, that part of the prosecution was not proved beyond reasonable doubt and based on such finding the trial court has gone to the extent of acquitting the appellant herein/accused in respect of the charge for an offence punishable under Section 4(1-A) of Tamil Nadu Prohibition Act. As against the said finding holding the appellant herein/accused not guilty of the offence punishable under Section 4 (1-A), no challenge has been made by the State or any other person either by way of an appeal or revision. Therefore, the finding of the court below that the charge under Section 4(1-A) of the Tamil Nadu Prohibition Act against the appellant herein/accused was not proved beyond reasonable doubt and that the appellant herein/accused was not guilty of the offence, has become final. 14. In the previous paragraph, we have seen that the case of the prosecution as if the de-facto complainant-Subramani gave a complaint to the police expressing his belief that the arrack sold by the appellant herein/accused did contain a poisonous substance, could not be probable; that based on the non-examination of the de- facto complainant the trial court itself came to the conclusion https://hcservices.ecourts.gov.in/hcservices/ that the charge under Section 4(1-A) of the Prohibition Act against the appellant herein/accused was not proved beyond reasonable doubt and that the appellant herein/accused was not guilty of the said offence and that the same has become final as no appeal or revision has been filed challenging the same. Now, in the light of the said finding, we have to consider whether the conviction of the appellant herein/accused for the other offences can be sustained. Only two witnesses have been examined on the side of prosecution to prove the prosecution case regarding the alleged arrest, recovery of contraband, drawal of sample, destroyal of the contraband after drawing the samples and recovery of the other articles marked as M.O.2 to M.O.6. The seizure mahazar has been marked as Ex.P1, whereas the destroyal mahazar has been marked as Ex.P2. Ex.P3 and P8 are Observation Mahazar and rough sketch showing the salient features of the place of occurrence. It must be noticed that out of the two independent witnesses in whose presence allegedly the accused was arrested, contraband was seized and other articles were recovered and destroyal mahazar was prepared, only one witness was examined as P.W.1. The other witness Tamizh Murugan has not been examined. No reason has been offered as to why he was not examined as a witness. 15. In Ex.P4-complaint it has been stated that the de-facto complainant Subramani bought one glass full of arrack for a sum of Rs.10/- in Nambipalayam Harijan Colony where the appellant herein/accused was selling arrack. Though it has been stated in the complaint that the accused was selling arrack in Nambipalayam Harijan Colony, particular place in that Harijan Colony has not been mentioned in the complaint. On the other hand, in the last sentence of the complaint it has been stated that the de-facto complainant would show the place of occurrence and identify the appellant herein/accused, if the police would accompany him. However, as per the evidence adduced on the side of the prosecution, the de-facto complainant was not taken to the place of occurrence when the police party went there to arrest the accused. On the other hand P.W.1 and another by name Tamizh Murugan were taken by the police party to the place of occurrence to be witnesses for the arrest and recovery. If it was so, it is a mystery as to how the police party were able to pin-point the place of occurrence and go straight away to the place of occurrence. The place of occurrence is said to be a pond near Nambipalayam Harijan colony. This pond was not referred to in Ex.P4-complaint. As per Ex.P8-Rough sketch, the house of the appellant herein/accused was on the northern side of the road whereas the pond was on the southern side of the main road. The distance between the place of occurrence and the house of the appellant herein/accused is shown to be 250 feet. 16. In the cross-examination, P.W.1 stated that his statement was recorded by the police at 1.30 p.m on the date of occurrence and thereafter he was not examined by the police and he did not meet any police. However, further down in the course of cross- https://hcservices.ecourts.gov.in/hcservices/ examination, he would state that the police invited him to be a witness for the occurrence at about 1.15 p.m, he reached the place of occurrence along with police at about 1.30 p.m and the police arrested the appellant herein/accused at 1.30 p.m itself. It was his evidence that within half an hour, all the Mahazars were prepared and the material objects were recovered. According to his evidence the police completed arrest, recovery and investigation at the place of occurrence by 2.00 p.m. However, the evidence of P.W.5, the first Investigating Officer is quite contra to the evidence of P.W.1. According to his testimony, he reached the place of occurrence at 1.00 p.m on the date of occurrence, namely 01.11.2000. According to his evidence, the police party was there in the scene of occurrence till 4.00 p.m. Even though Rs.90/- was allegedly recovered from the appellant/accused as the money realised by him in selling ID arrack, the numbers of the currency notes were not noted in the seizure mahazar, marked as Ex.P1. When the numbers of the currency notes were not noted in the mahazar, it is quite surprising as to how the prosecution witnesses, namely P.W.1 and 5 were able to identify M.O.5 to be the currency notes recovered from the appellant herein/accused. 17. P.W.1 would assert in his evidence that he signed two documents alone in the place of occurrence. But it transpires he has signed a third document also. The said third document is nothing but the Observation Mahazar, marked as Ex.P3. The assertion of P.W.1 that he did not sign more than two documents in the place of occurrence and a subsequent admission that his signature was also found in Ex.P3, would make probable the contention of the appellant herein/accused that the signatures of P.W.1 should have been obtained in the police station and that is why such a discrepancy is found in the evidence of P.W.1. That apart, the sequence of incident during the course of occurrence as projected by P.Ws.1 and 5, the only witnesses who would give direct evidence regarding the occurrence, will also improbablise the prosecution version. P.W.4 is the police officer who is said to have arrested the accused, recovered the contraband, drawn samples from it and destroyed the balance contraband. He gives a cogent account of the sequence of incidents. According to his testimony, the accused was arrested at 1.30 p.m, then 60 litres of arrack found in the lorry tube marked as M.O.2, 4 litres of arrack found in the plastic can marked as M.O.3, green colour plastic mug marked as M.O.4, glass tumbler marked as M.O.6 and the money marked as M.O.5 were recovered under Ex.P1-Seizure Mahazar at 2.00 p.m and there after two samples marked as M.O.1 were drawn from the contraband and the balance contraband was destroyed in the place of occurrence. He has simply stated that he destroyed the balance contraband after preparing the destroyal mahazar marked as Ex.P2. How was the balance contraband destroyed was not elaborated by P.W.5. On the other hand P.W.1 would state that the police let balance contraband flow into the ground, set fire to it and thus destroyed it. The statement of P.W.1 in vernacular language is as follows: https://hcservices.ecourts.gov.in/hcservices/ "fPnH Cw;wp jP itj;J mHpj;Jtpl;ldh; " Ex.P2-destroyal mahazar contains a recital that the balance contraband was destroyed by pouring the same on the ground. The same in vernacular language is as below: "rk;gt ,lj;jpy; bfhl;o mHpf;fg;gl;lJ " There is nothing to indicate that it was destroyed by setting it on fire. In addition to that P.W.5 has erroneously referred to the destroyal mahazar as Ex.P8. 18. Ex.P1-Seizure mahazar is said to have been prepared at 2.00 p.m on 01.11.2000 and Ex.P2-Destroyal mahazar is said to have been prepared at 2.30 p.m. Ex.P3-Observation mahazar is said to have been prepared at 1.45 p.m. In this regard, the evidence of P.W.1 seems to be somewhat contradictory. According to him, soon after the police party arrived at the place of occurrence, they arrested the appellant herein/accused and then they