IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 CRL.A.No. 1546 of 2003() ------------------------ SC.176/2001 of III ADDL. SESSIONS COURT (ADHOC-I), THRISSUR .................... APPELLANT(ACCUSED):- ---------------------------- PARAMESWARAN, AGED 54, S/O.KAITHAVALAPPIL KUNJAYYAPPAN, VELLIKULANGARA. BY ADV. MR. B.JAYASANKAR MR. P.K.SAJEEV RESPONDENTS (COMPLAINANT AND STATE OF KERALA):- --------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. MS. M.K. PUSHPALATHA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A. NO. 1546/2003 ORDER ON CRL. M.A. NO. 9396/2003 IN CRL.A. NO. 1546/2003 DISMISSED 18.09.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ------------------------------------------------------------- Crl. A. No. 1546 of 2003 ------------------------------------------------------------ Dated this the 18th day of September, 2009. JUDGMENT This appeal was filed by the sole accused in Sessions Case No. 176 of 2001 on the file of the III Additional Sessions Court (Adhoc-I), Thrissur challenging the conviction entered and the sentence passed against him for an offence punishable under Section 58 of the Abkari Act. Pending this appeal, the appellant died on 13.12.2004 and his widow has applied for continuing the appeal by virtue of the proviso to Section 394(2) Cr.P.C. 2. The case of the prosecution is that on 24.04.1999, at 3 p.m at the Mupliam - Inchakund road at Chakkappanpadi bus stop in Mupliam desom of Varandarappally village, the accused was found in possession of 5 bottles each of 750 ml of coloured arrack kept in MO2 plastic bag. 3. On the accused pleading not guilty to the charge framed against him by the court below for the offence punishable under Section 58 of the Abkari Act, the Crl. Appeal No. 1546/2003 : 2 : prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 6 witnesses as P.Ws 1 to 6 and got marked 10 documents as Exts. P1 to P10 and 3 material objects as MO1 series and MO2. 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. The Addl. Sessions Judge, after trial, as per judgment dated 31.07.2003, found the accused guilty of the offence and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. one lakh and on default to pay the fine, to suffer rigorous imprisonment for three months. It is the said judgment which is assailed in this appeal. 6. As mentioned earlier, the accused/appellant died pending this appeal and the appeal is pursued by his widow. 7. I heard the learned counsel appearing for the appellant as well the learned Public Prosecutor. Crl. Appeal No. 1546/2003 : 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. 9. The point: PW1 is the Preventive Officer, Excise Range, Irinjalakuda who detected the offence. PW2 is the independent witness to the search and seizure. He turned hostile to the prosecution. PW3 is the Excise guard who accompanied PW1, the detecting officer. PW4 is the Village Officer, Varandarappally. He prepared Ext.P5 scene plan. PW5 is the Excise Inspector who conducted the investigation and prepared Ext.P6 scene Mahazar. PW6 is the Preventive Officer who registered Ext.P7 crime and occurrence report. 10. According to the prosecution, the date of detection of the offence by PW1 was on 24.04.1999. But going by the final report, the crime and occurrence report was registered on 25.04.1999 which is one day after the date of occurrence. 11. Ext.P2 seizure Mahazar states that seeing the excise party, the accused attempted to hide behind the post of the Crl. Appeal No. 1546/2003 : 4 : bus stop. PWs 1 and 3 also deposed to the said effect in their chief examination. But, during cross examination, both of them confessed that there is no bus stop or even a bus shelter at the place of occurrence. They, however, came out with a case that the post behind which the accused tried to hide himself was an electric post. But, Ext.P6 scene Mahazar as well as Ext.P5 scene plan prepared by PW4, the Village Officer do not show the existence of any electric post at the scene of detection. 12. According to PW1, the properties were produced before the court on 25.04.1999, that is, on the very next day of the date of detection. But the seal on Ext.P8 property list bears the date 28.04.1999. The Thondi Section Clerk of the Judicial First Class Magistrate, Irinjalakuda where the properties were produced, was not examined to prove the date of receipt of the properties. Except producing the properties before the court, either PW1 or PW5 does not appear to have sought chemical examination of the sample bottle. According to the prosecution, as per Ext.P10 Crl. Appeal No. 1546/2003 : 5 : Certificate of Chemical Analysis dated 18.08.2000, the sample was found to contain 42.34% by volume of ethyl alcohol. It is not known as to what prompted the Judicial First Class Magistrate, Irinjalakuda to send the sample bottle to the chemical examiner for analysis. There is no evidence as to who despatched the sample and whether it was despatched in a tamper-proof condition. Ext.P10 Certificate of Chemical Analysis shows that the sample bottle was forwarded by the Magistrate as per letter dated 21.05.1999. What happened to the sample which was allegedly produced before court on 25.04.1999 for about one month till 21.05.1999 and who was the person who dealt with the sample? The Thondi Section Clerk who is the custodian of the properties before the criminal court, alone could have explained this. In the absence of examination of the said court staff, it is not possible to say that it was the very same sample which was allegedly drawn from the 3.750 litres of coloured arrack allegedly possessed by the accused, which eventually found its way into the hands of the chemical examiner. (See State Crl. Appeal No. 1546/2003 : 6 : of Rajasthan v/s. Daulath Ram – AIR 1980 SC 1314 and Valsala v/s. State of Kerala – 1993 (2) KLT 550 SC) The conviction recorded and the sentence passed by the court below overlooking the above vital aspects of the matter cannot, therefore, be sustained and are accordingly dislodged. The accused is, thus, found not guilty of the offence punishable under Section 58 of the Abkari Act and is acquitted thereunder. His bail bonds shall stand cancelled. Amounts, if any, deposited before the trial court towards the fine amount shall be refunded to the widow of the accused. This appeal is allowed as above. Dated this the 18th day of September, 2009. V. RAMKUMAR, JUDGE. rv Crl. Appeal No. 1546/2003 : 7 : V. RAMKUMAR, J. ------------------------------------ Crl. Appeal No. 1546 of 2003 ---------------------------------------- 18th day of September, 2009. JUDGMENT Crl. Appeal No. 1546/2003 : 8 :