BAIL SLIP The Appellant/Accused viz., Selvi D/o.Nagaraj was directed to be released on bail as per order of this Court dated 5.9.2006 and made in Crl.M.P.No.1/2006 in Crl.A.699/06 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18..03..2011 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. Appeal No.699 of 2006 Selvi ... Appellant/Accused -Versus- State Rep. by The Inspector of Police, Rasipuram Police Station, Namakkal District. [Crime No.1134 of 2004] ... Respondent/Complainant Memorandum of Grounds of Criminal Appeal under Section 374 (2) of the Criminal Procedure Code against the judgement dated 03.06.2006 made in S.C.No.66 of 2006 on the file of the learned Principal District and Sessions Judge, Namakkal District. For Appellant : M/s.M.Mohanasundaram Mr.R.John Sathyan For Respondent : Mr.R.Muniyapparaj, Government Advocate, [Criminal Side] JUDGEMENT The appellant is the sole accused in C.C.No.66 of 2006 on the file of the learned Principal District and Sessions Judge, Namakkal District. She has been convicted for offence under Section 4(1) (i), 4(1) (aaa) and 4(1-A) (ii) of the Tamil Nadu Prohibition Act and sentenced to undergo S.I. for 2 months and to pay a fine of Rs.500/- in default to undergo S.I. for 1 week for offence under Section 4(1) (i) of the TNP Act; to undergo R.I. for 2 years and to pay a fine of Rs.2000/- in default to under R.I. for 4 months for offence under Section 4 (1)(aaa) of the TNP Act; and to under go R.I. for 4 years and to pay a fine of Rs.4000/- in default to undergo R.I. for 1 year for offence under Section 4(1-A) (ii) of the TNP Act. Challenging the said conviction and sentence, the appellant is now before this court with this appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. The brief facts of the case of the prosecution are as follows:- P.W.1 is the husband of P.W.2 and they are residents of Rasipuram. On 26.09.2004 at about 8.00 p.m. P.W.1 decided to drink illicit arrack. Therefore, he proceeded to the bank of a lake in Rasipuram. There, P.W.1 found the accused sitting near a bush. P.W.1 asked her whether she had illicit arrack for sale. The accused answered affirmatively and then, sold a glass of illicit arrack for a sum of Rs.10/- to P.W.1. At that time, the accused was found having a white plastic can containing illicit arrack, two tubes containing illicit arrack and one white tumbler. P.W.1 purchased one tumbler of illicit arrack and after consuming the same on the spot, P.W.1 returned to his house. Soon after, he developed burning sensation in his stomach. He told P.W.2 about the same. P.W.2 with a view to cure the same, gave him plantain juice. But, the burning sensation did not stop. Therefore, he proceeded to the police station. At about 7.30 p.m. P.W.8, the then Inspector of Police attached to Rasipuram Police Station received the said complaint and registered a case in Crime NO.1134 of 2004 under Section 4(1)(i), 4(1)(aaa) and 4(1-A) of the TNP Act. He forwarded P.W.1 to the hospital for treatment. P.W.3 Dr.Gunasekaran was the duty Doctor at Government Hospital, Rasipuram. P.W.1 appeared before him at 10.15 a.m. on 27.09.2004. He found that the eyes of P.W.1 were dilated. There was also a smell of alcohol in the breath. His gait was alright. P.W.3 Doctor wanted P.W.1 to give consent for blood and urine test to ascertain whether they contained alcohol. But, P.W.1 declined. Therefore, from out of the smell in the breath of P.W.1 he opined that he would have consumed alcohol. 3. Taking up the case for investigation P.W.8 proceeded to the place of occurrence on 27.09.2004 at about 11.00 a.m. He found the appellant sitting near a bush. At 11.30 a.m. in the the presence of P.W.4 and one Pitchaimuthu, P.W.8 arrested the accused. The accused gave voluntary confession. Then, P.W.8 seized a can with a capacity of 5 litres containing 3 litres of illicit arrack, 2 lorry tubes with a capacity of 60 litres containing 55 litres of illicit arrack each. A tumbler having a smell of arrack and a cash of Rs.30/- [ 3 ten rupees currency notes] were also found. These properties were seized in the presence of P.W.4 and another witness under Ex.P.5 mahazar. Then, P.W.8 took samples of illicit arrack from the seized contraband in two bottles measuring 500 ml. each. Then , he destroyed the illicit arrack in the presence of P.W.4 and another witness. To evidence the destruction of the contraband, he prepared a mahazar under Ex.P.6, in which, P.W.4 and one Pitchaimuthu singed as witnesses. Taking samples in two bottles and the receptacles along with the accused he returned to the police station. He forwarded the properties seized from the accused to court under Form-95 and also forwarded the accused for judicial remand. Then, he made a request to the court for sending the sample for chemical analysis. Accordingly, one of the sample bottle was sent by the court to Forensic Science Laboratory at Salem on 29.09.2004 for chemical examination. P.W.4 examined the same and issued a certificate under Ex.P.8. According to his opinion, the sample was arrack and it also contained atropine which https://hcservices.ecourts.gov.in/hcservices/ is a poisonous substance. P.W.8 examined P.Ws.1 to 4 collected medical records, chemical analysis report, examined the Doctor and Chemical Analyst and recorded their statements. On completing the investigation he laid the final report against the accused for offence under Section 4(1)(i), 4(1)(aaa) and 4(1-A) of the TNP Act. 4. Based on the above materials, the trial court framed the charges under Section 4(1)(i), 4(1) (aaa) and 4(1-A) (ii) of TNP Act. The appellant pleaded not guilty. Therefore, the trial court went ahead with the trial. As many as 10 witnesses were examined, 13 documents were exhibited and 5 material objects were marked on the side of the prosecution. When the incriminating evidences were put to the accused under Section 313 of Cr.P.C. she denied the same as false. However, she did not offer any further explanation. No one was examined and no document was marked on the side of the defence. Having considered the above materials, the trial court found the appellant guilty under all the three charges and convicted and sentenced her as stated earlier in the first paragraph of this judgement. That is how, the appellant is now before this court with this criminal appeal. 5. I have heard the learned counsel for the appellant and the learned Government Advocate [Criminal Side] for the State and also perused the records carefully. 6. Out of the three charges framed against the appellant, charge Nos.1 and 3 relate to the occurrence on 26.09.2004 and charge No.2 relates to the occurrence on 27.09.2004. In respect of the possession of illicit arrack and also sale of a tumbler full of illicit arrack to P.W.1, the prosecution relies only on the evidence of P.W.1. The learned Government Advocate [criminal side] would, however, submit that apart from the evidence of P.W.1, there are evidences of P.W.2 and P.W.3 Doctor to corroborate. But, the learned counsel for the appellant would submit that the evidence of P.W.1 is highly unreliable. Further, the evidence of P.Ws.2 and 3 would not go to corroborate the evidence of P.W.1 in any manner. He would further point out that the fact that P.W.1 declined to go for blood and urine test would go to show that he has not come forward with the true version. Therefore, according to the learned counsel, the appellant is entitled for acquittal. 7. I have considered the above rival submissions. 8. At the out set I have to state that though P.W.1 has been cited as an independent witness, he is in no better place than of an accomplice. It is not necessary that to treat a person as an accomplice, he should have been arrayed as an accused originally and then pardon should have been extended to him under Section 309 of Cr.P.C. In this regard, we may refer to the judgement of the Hon'ble Supreme Curt in Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599 wherein the Hon'ble Supreme Court in paragraph 9 has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "7. The combined effect of Ss. 133 and 114, illustration (b) may be stated as follows : According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. The law may be stated in the words of Lord Reading C.J. in R. v. Baskerville 1962-2 KB 658 as follows:- "There is no doubt that the uncorroborated evidence of an accomplice is admissible in law [R. v. James Attwood, (1787) 1 Leach 464]. But it has been long a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, and in the discretion of the Judge, to advise them not to convict upon such evidence, but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence [R. v. Stubbs, (1855) Dears C C 555; in re, Meunier, 1894-2 Q.B. 415]" We, therefore, allow this appeal, set aside the order of conviction and direct that the appellant be released forthwith." If the witness had an active role to play in the commission of an offence along with the accused notwithstanding the fact that he was never arrayed as an accused still, his character as accomplice will remain unaltered and, therefore, the embargo contained in Section 114 of the Evidence Act will operate against him. It is needless to point out that under Section 114(b) of the Evidence Act, the court may presume that an accomplice is unworthy of credit, unless his evidence is corroborated in material particulars. At this juncture, we may also have a look into Section 133 of the Evidence Act which states that an accomplice shall be a competent witness against an accused person; and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. A conjoint reading of these provisions would make it clear that https://hcservices.ecourts.gov.in/hcservices/ though it is not illegal for the court to convict the accused solely on the basis of an uncorroborated testimony of an accomplice, still, as provided in Section 114 (b) of the Evidence Act, it is always necessary to look for such corroboration unless the evidence of the accomplice inspires the fullest confidence of the court. In the instant case, as I have already stated, P.W.1 is an accomplice because he had gone to drink illicit arrack which itself is an offence under Section 4(1)(j) of the TNP Act. But unfortunately, there is no corroboration to the evidence of P.W.1. P.W.2 is not an eye witness to the occurrence and she has only stated that P.W.1 told her that he had taken illicit liquor. The fact that P.W.1 declined to go for blood and urine test would go to show that he is burking an important aspect. The opinion offered by P.W.3 based only on the smell in the breathe of P.W.1 cannot be given any weightage. Thus, in my considered opinion, absolutely, there is no corroboration from any other independent source on material particulars to corroborate the tainted evidence of P.W.1. Therefore, as provided in the Evidence Act, I am inclined to presume that P.W.1 is unworthy of credit. The said presumption has not been rebutted. Therefore, acting upon the evidence of P.W.1 it is not safe to convict the accused. 9. Now, coming to the occurrence on 27.09.2004, the prosecution relies on the evidences of P.W.8 and P.W.4. It is stated by both the witnesses that the accused was found in possession of illicit arrack in a plastic can as well as in two lorry tubes . As I have already narrated, it is their case that they were seized under mahazar in the presence of P.W.4 by P.W.8. But, the contraband namely, the illicit arrack said to have been seized from the appellant was not produced before the court. Instead, P.W.8 would state that he destroyed the same in the presence of P.W.4 at the place of occurrence after drawing sample in two bottles. The question is whether he has got power to do so. As per the third proviso to Section 32(c) of the TNP Act, he has got power to do so, but, there are other provisions which are to be followed before doing so. At this juncture, it is worthwhile to reproduce the said provision viz., Section 32 (c) of the TNP Act which reads as follows:- "32. Arrest of offenders and seizure of contraband liquor and articles without warrant. - Any Prohibition Officer, any officer of the police or Land Revenue Departments, and any other person authorised in that behalf - (a) .... ... ... ... (b) .... ... ... ... (c) may search any person, vessel, vehicle, animal package, receptacle or covering, upon whom or in or upon which, he may have reasonable cause to suspect any such liquor, drug or other article to be or to be concealed: https://hcservices.ecourts.gov.in/hcservices/ Provided that ........................ Provided further that ........................ Provided also that where any illicit arrack is seized under this section by any officer or person, such officer or person may, in the presence of a Prohibition Officer or any Police Officer not below the rank of Inspector, - (i) take two samples of the illicit arrack or such quantity and in such manner as may be prescribed, and (ii) destroy or cause to be destroyed the illicit arrack and send the pots or other receptacles in which the illicit arrack was kept together with the samples taken and a certificate from the Officer in whose presence the samples were taken and the illicit arrack was destroyed, as to the total quantity or illicit arrack seized, the total quantity taken as samples and the total quantity destroyed, to the Magistrate having jurisdiction to inquiry into the case. The Magistrate shall, upon the receipt of the samples, retain one in his court and send the other to such Officer as may be prescribed for chemical analysis." [Emphasis supplied] 10. A close reading of the above third proviso to Section 32 (c) of the Tamil Nadu Prohibition Act would make it abundantly clear that the officer who has seized the illicit arrack can draw samples only in the presence of a prohibition officer or any police officer not below the rank of an Inspector of Police and then he can destroy the remaining contraband. In respect of the destruction, the said prohibition officer or police officer, in whose presence the destruction is done, should give a certificate in respect of the total quantity seized, the total quantity taken as samples and total quantity destroyed and such certificate should be forwarded to the Magistrate having jurisdiction. But, in this case, drawing of samples as well as the destruction were not made in the presence of either a prohibition officer or any police officer not below the rank of an Inspector of Police. It may be true that P.W.8 himself is an Inspector of Police but that by itself will not satisfy the requirements of the above provision. Here, we have to look into the object behind the said proviso. In a case where the officer, who seizes illicit arrack, decides to destroy the same after drawing samples, in order to ensure that samples were really taken from the illicit arrack seized and that the rest of the illicit arrack was destroyed, the presence of yet another responsible officer namely, a prohibition officer or any police officer not below the rank of Inspector is insisted upon. This procedure, in my considered opinion, is mandatory as the https://hcservices.ecourts.gov.in/hcservices/ object behind the same is to ensure that there is no manipulation at the hands of the officer who seizes the illicit arrack. In this regard, I may refer to a judgement of a Division Bench of this Court in Jegannathan v. State of Tamil Nadu reported in Manu/TN/8992/2006 wherein while dealing with a Habeas Corpus Petition challenging the order of detention passed under Tamil Nadu Act 14 of 1982 , the Division Bench, while noticing Section 32 of the Tamil Nadu Prohibition Act and after referring to various orders passed on the earlier occasions, has held in paragraphs 3 and 4 as follows:- "3. At the foremost, the learned counsel for the petitioner by drawing our attention to the reference made in paragraph 3 of the grounds of detention viz., the remaining I.D arrack and fermented wash were destroyed at the spot a "certificate was prepared to that effect, submitted that no such certificate was prepared as per Section 32 of the Tamil Nadu Prohibition Act, 1937 and the only document available is destruction mahazar. According to him, in the absence of the certificate as stated in paragraph 3 of the detention order, it is presumed that the detaining authority has not applied his mind while passing the detention order. He has also heavily relied on the decision of this Court dated 25.09.2003 in HCP No.2580 of 2002, which was followed by this Court in HCP No.140 of 2006 by an order dated 13.06.2006. In that case, before the Division Bench, a similar contention was raised. A perusal of the details mentioned in the said decision shows that in that case also the destruction mahazar alone was prepared and a copy was supplied to the detenu. However, as in the present case, the detaining authority therein referred to the said document as a certificate prepared under Section 32 of The Tamil Nadu Prohibition Act, 1937. The Division Bench after finding that the document available in the paper book does not amount to certificate in terms of Section 32 of The Tamil Nadu Prohibition Act, 1937 and after holding that the detaining authority has not applied his mind, quashed the detention order. 4. On going through the factual details in our case, particularly the reference made in para 3 as well as the document, we are of the view that the decision relied on by the learned counsel for the petitioner is directly applicable to the case on hand. Inasmuch as the detaining authority has referred the destruction mahazar as a certificate in terms of Section 32 of The Tamil Nadu Prohibition Act, 1937, we are satisfied that https://hcservices.ecourts.gov.in/hcservices/ the detaining authority has not properly applied his mind and on this ground the impugned detention order is liable to be quashed and accordingly, the same is quashed." The said view taken by the Division Bench of this Court clearly fortifies the view expressed by me herein above. 11. In the instant case, since the said provision has not been followed, in my considered opinion, the evidences of P.W.8 and P.W.4 that illicit arrack was seized, samples were drawn and the rest of the illicit arrack was destroyed cannot be believed. 12. There is yet another contradiction pointed out by the learned counsel for the appellant. Now, according to P.W.4, he witnessed the seizure of the contraband when he went to the place of occurrence to answer natures call; whereas according to P.W.8, he was taken from his house for the specific purpose of raid. This contradiction also creates a doubt in the case of the prosecution coupled with the above grounds. 13. For all the above reasons, I hold that the prosecution has failed to prove the case beyond reasonable doubts and the appellant is, therefore, entitled for acquittal. 14. In the result, the criminal appeal is allowed, the conviction and sentence imposed on the appellant by the trial court is set aside; and the appellant is acquitted of all the charges. Fine, if any, paid by the appellant shall be refunded to her. The bail bond executed by the appellant shall stand discharged. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kmk To 1.The Principal District and Sessions Judge, Namakkal District. 2.The Inspector of Police, Rasipuram Police Station, Namakkal District. 3.The Judicial Magistrate, Rasipuram. 4.-do- Thro' The Chief Judicial Magistrate, Namakkal. 5.The Superintendent, Special Prison for Women, Vellore. 6.The Public Prosecutor, High Court, Madras. Crl. Appeal No.699 of 2006 pkb(co)pmk.27.4.2011 https://hcservices.ecourts.gov.in/hcservices/