IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 CRL.A.No. 852 of 2003 ------------------------------- SC.NO.435/1999 OF ADDL. SESSIONS COURT (ADHOC-I), KOZHIKODE .................... APPELLANT/ ACCUSED: ----------------------------------- MATHAI MATHEW, S/O MATHAI, THANNIKKAPPARA HOUSE, THIRUKOTOOR AMSOM DESOM, PERUMALPURAM. BY ADVS. MR.C.J.JOY, MR.V.J.JAMES. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE S.I. OF POLICE, PAYYOLI, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY GOVT. PLEADER SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A. NO. 852/2003: ORDER CRL.M.APPL.NO.5453/2003 IN CRL.A.NO.852/2003 DISMISSED 11/06/2009. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. --------------------------- CRL.A.NO. 852 OF 2003 ------------------------------ Dated this the 11th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, Fast Track (Adhoc-I), Kozhikode under Section 55 (a) and (h) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. The accused was sentenced to undergo imprisonment for a period of two years and to pay a fine of Rs. One lakh with default sentence of 9 months. It is the case of the prosecution that on 27.9.1997 at about 2.45 p.m while the Sub Inspector of Police, Payyoli and his party were patrolling, they received a reliable information that the accused is selling Indian made foreign liquor from his house. A search memo was prepared and the police party went to the house of the accused and found him selling Indian made foreign liquor from a bottle containing 200 ml. On further search, three other bottles were recovered. The bottle did not contain the requisite sticker of the Kerala State Beverages Corporation. The chemical analysis revealed the presence of ethyle alcohol and thereafter on appreciating 2 CR.A.NO.852/03 the evidence, the court convicted the accused. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination are whether there is sufficient material to convict the accused under Sections 55 (a) and (h) of the Abkari Act. (2) Whether it requires interference. 3. The learned counsel for the appellant had argued that there is lot of procedural irregularity and the conduct of the investigating agency itself would reveal that nothing has been done in accordance with law and it is submitted that it is a false case foisted against him. I had been taken through the documentary as well as the oral evidence in this case. According to the prosecution, on 27.9.1997 they got information regarding the sale of IMFL by the accused and they had proceeded to the spot for conducting search and for further actions. The Sub Inspector of Police, who is examined as PW1 would depose that he had prepared the search memo and had given direction to post it. According to him, the search memo was prepared from the police jeep. Another constable who was with him when examined would depose that the search memo was prepared from the police station. 3 CR.A.NO.852/03 It may not be a serious thing from where the search memo was prepared. But it has to be stated in this case that there is no evidence to show that the search memo has been posted. At least there would be some evidence to show that it has reached the court when it is posted. When PW1 was examined, he pleads total ignorance about the receipt of the search memo by the court. The provisions really mandate a warrant from a concerned Magistrate for conducting the search. But it has been also stated that when the circumstance does not grant time to get such a warrant, one can post the search memo and proceed to search the place. Therefore, it is the procedural irregularity especially in the backdrop that it is a search conducted in the residential house of a person. 2. The learned counsel would very strongly contend before me that there is an inordinate delay in making the alleged sample to reach the court. The seizure was done on 27.9.1997 and the liquid reached the court only on 6.11.1997. That is almost after a period of 40 days. In this context I may refer to the evidence of PW1 which would show 4 CR.A.NO.852/03 that “ 3. So, the liquid seized had not been sealed and such a liquid is retained in the possession of the prosecuting agency for a period of almost 40 days. This Court has held that there must be leak proof materials available in order to show that the liquid was taken from the can where it was preserved or there must be materials to establish that it is the seized liquid that had been sent for chemical examination. Here we don't have materials other than the evidence of PW1 and his associates in the backdrop of the fact that they had retained the liquid without any reason for more than 40 days with them. It may not be safe for a court of law to rely upon that to show the leak proof method had been adopted in taking the sample. This also goes against the prosecution. 4. The learned counsel also argues about the improbability of the case on search and seizure on the ground that according to the police officials they had gone on a police jeep for the purpose of patrolling and when the person in charge of the CD was examined as DW2, he had admitted before the court that the said jeep had only gone to 5 CR.A.NO.852/03 Sreyaz service station between 10 a.m and 2 p.m. So, this also cuts at the root of the prosecution that they had gone for patrolling and on getting the information, conducted a search. It is in this background we have to analyse the evidence as well. The procedural technical leak proof method provided by the statute is not complied with. The independent witness examined in the case had turned against the prosecution. So, it is only the interested evidence of the police officials available to establish the case. I am conscious of the fact that there is no bar in accepting their evidence to enter into a finding in a criminal case. But the courts have to very cautious and their evidence must be subjected to meticulous scrutiny. The intrinsic reliability and the inherent probability are to be gathered and the court should be satisfied about the same. Now as discussed by me earlier, the conduct of the investigating agency is not proper at all. They had given a go bye to the procedural formalities directed by law and in that background when their oral evidence is analysed it may not be absolutely proper to rely on that alone to arrive at a decision regarding the guilt of the accused. So, I feel that this a case where it has also to be 6 CR.A.NO.852/03 stated even regarding the recovery of the three bottles by the police officials that they have got it from different places. One would say that it is from the bed room but the other would say that it is from the office room. So, even on that point, there is no unanimity. Therefore, I am inclined to grant the benefit of doubt to the accused as the evidence tendered is not satisfactory. Therefore, the conviction and sentence passed by the court below is set aside and the the criminal appeal is allowed. 5. In the result the criminal appeal is disposed of as follows: 1. The conviction and sentence passed by the trial court is set aside. 2. It is found that the accused is not guilty of the offence under Sections 55(a) and (g) of the Abkari Act. He is acquitted and set at liberty. M.N. KRISHNAN, JUDGE cl 7 CR.A.NO.852/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO. 852 OF 2003 ------------------------------ 11th day of June, 2009 JUDGMENT 8 CR.A.NO.852/03