IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 CRL.A.No. 2362 of 2008() --------------------------------- SC.118/2006 of ADDL. SESSIONS COURT(ADHOC)III, PATHANAMTHITTA CP.142/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... APPELLANT: ACCUSED -------------------------------- SOMARAJAN, C.NO.2800, CENTRAL PRISON, TRIVANDRUM. BY ADV. GEORGE SEBASTIAN(STATE BRIEF) RESPONDENT: COMPLAINANT ------------------------------------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.C.M. KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARDON 9/1/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~ Crl. Appeal No. 2362 OF 2008 ~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 9th day of January, 2009 J U D G M E N T This is an appeal from jail preferred by the accused who is undergoing imprisonment in pursuance to the impugned judgment dated 10.4.2008 in S.C. 118 of 2006 in the file of the Court of Additional District & Sessions Judge (Adhoc), Fast Track III, Pathanamthitta. By the impugned judgment accused is convicted under Section 8 (1) and (2) of the Abkari Act and he is sentenced to undergo Rigorous Imprisonment for 1 ½ years and to pay a sum of Rs.1,00,000/- (Rupees One lakh only) as fine and in case of default of payment of fine, he is directed to undergo Rigorous Imprisonment for a further period of 6 months. It is the above conviction and sentence challenged in this appeal. 2. The prosecution allegation is that the accused/appellant in contravention of provision of the Abkari Act was found in possession of 3 litres of illicit arrack in a 5 litre jerry can in the mud road towards the west Mavarappara stone quarry Crl. Appeal No. 2362 of 2008 : 2 : in Kurampala village on 5.4.2004 at 6.05 P.M. and thereby committed the above said offence. On the basis of the said allegation crime No. 138/04 was registered in Panthalam police station for the offence under Section 8 (1) and (2) of the Abkari Act. On completing investigation the S.I. Of Police who attached to the above police station laid the charge before the Judicial First Class Magistrate Court, Adoor whereupon C.P. 142/2005 was instituted and by order dated 3.09.2005 therein the learned Magistrate committed the case to the Court of Sessions, Pathanamthitta from where the case is made over to the trial court for disposal. 3. On appearance of the accused, after hearing defence as well as prosecution a formal charge was framed under Section 8 (1) and (2) of the Abkari Act which read over and explained to the accused to which he pleaded not guilty which resulted in the further trial during which PW1 to PW4 were examined as prosecution witnesses and produced Ext.P1 to Ext.:P7 documents. No evidence either documentary or oral was adduced by the defence. During trial M.O.1 to M.O.3 were identified and marked as material objects. Finally, the trial court Crl. Appeal No. 2362 of 2008 : 3 : found that accused is guilty of the offence charged against him. Accordingly the above sentence imposed on him and thus appellant challenges the above conviction and sentence. 4. As the appellant is undergoing imprisonment in pursuance to the judgment and this appeal preferred from the jail advocate Sri. Geroge Sebastine is appointed as state brief to prosecute the appeal. I heard the learned counsel appointed as State Brief and also the learned Public Prosecutor. I have perused the evidence and materials on record. The prosecution case is mainly depend upon oral testimony of PW1 and PW3 and documentary evidence such as Ext.P1, Ext.P2, Ext.P5 and Ext.P6. PW3 is the S.I. Of Police who detected the crime and undertook the investigation and finally laid the charge. PW1 was the police constable attached to the Panthalam police station who accompanied PW3 at the time of alleged detection of the crime. PW1 and 3 deposed in terms of the prosecution case. PW2 is the sole independent witness cited and examined to prove the seizure. But he turned hostile. PW4 is the thondy clerk who was examined for the purpose of proving Ext.P7 thondy register. Regarding the detection of the crime and seizure, as stated above PW1 and 3 Crl. Appeal No. 2362 of 2008 : 4 : deposed before the court. Ext.P1 seizure mahazar was proved through PW1. Ext.P2 to Ext.P6 documents were marked through PW3, the S.I. of Police, M.O.1 is 5 litre can, M.O.2 is currency notes and M.O.3 glass were also identified and marked. On the basis of above evidence, the trial court found that accused is guilty of the offence levelled against him. 5. The learned counsel appearing for the appellant submitted that the evidence adduced by the prosecution are not sufficient to canvas a conviction against the accused. It is also the case of the counsel that investigation was conducted by the police in gross violation of statutory provisions. It is also pointed out that the prosecution case, are not free from doubt and thereby prosecution failed to establish the case against the accused beyond reasonable doubt and his conviction and sentence is liable to be set aside. 6. It is the specific case of the counsel that the interested version of the official witnesses namely PW1 and PW3 cannot be accepted unless corroborated by independent evidence. The only witness cited by the prosecution to prove the seizure has turned hostile. The other materials and evidence are Crl. Appeal No. 2362 of 2008 : 5 : not sufficient to prove the prosecution case. Under these circumstances, the non compliance of Section 36 of the Abkari Act assumes importance since the non compliance of the provisions contained in Section 36 will go to the benefit of the accused. The violation of the mandatory provision contained under Section 36 of the Abkari Act and the fact that PW1 did not support the prosecution case etc. has to be evaluated in the background of the fact there is delay of 8 days for reaching contraband article in court below and discrepancies with respect to the volume of contents in M.O.1 and also the absence of label and seal on M.O.1 can. 7. On the other hand the learned Public Prosecutor supporting the finding of the trial court argued that evidence of PW1 and 3 are intact and the defence could not event attempt to discredit their version. It is also submitted by the learned Public Prosecution that without any delay, after the seizure and arrest, the accused as well the thondy articles were produced before the learned Magistrate and the samples so collected, on chemical analysis, found that it contains the illicit arrack. It is also the case of the learned Public Prosecutor that though prosecution has Crl. Appeal No. 2362 of 2008 : 6 : obtained service of only one witness for seizure and the failure in not getting one more witness will not cause prejudice to accused in any way. The learned Public Prosecutor also pointed out that there is no culpable delay on the part of the prosecution in producing the thondy article before the court below and even if it is admitted that there is delay of 8 days, the same is no way affected the accused. It is also submitted by the learned Public Prosecutor that description regarding the quantity of the contents in M.O.1 can may be due to arithmetic mistake and that was the explanation given by PW3. The learned Public Prosecutor pointed out that the sample was taken from the spot and same was sent for chemical analysis by the court on the basis of which Ext.P6 report was obtained and therefore the absence of label or seal on the M.O.1 do not makes or suggests any default on the prosecution case. Therefore according to the learned Public Prosecutor no interference of this Court warranted. 8. I have carefully considered the contentions raised by both the counsel for the appellant as well as learned public prosecutor. The allegation of the prosecution is that accused has committed an offence punishable under Section 8 (1) and (2) of Crl. Appeal No. 2362 of 2008 : 7 : the Abkari Act, on the basis of the alleged detection of crime by which the accused was found in possession of 3 litres of arrack. Accordingly the court below sentenced him to under go 1 ½ years Rigorous Imprisonment and also sentenced to pay a sum of Rs.1,00,000/- (Rupees One lakh only) as fine and the default sentence is fixed as six months imprisonment. This court time and again held that as the deterrent punishment contemplated by the provisions of the Abkari Act, the quality of evidence must be proportionate to the deterrent nature of punishment contemplated. Going by the evidence adduced by the prosecution I am of the view that evidence on record are not up to the satisfaction so required. In Ramachandran Nair V State (1990 (1) KLT 44) this Court held that the words “persons called upon to attend and witness such searches shall include at least two persons” used under Section 36 of the Abkari Act indicate legislative insistence for strict compliance with the proviso. When the statute uses expressions such as “at least”, it must be understood that it denotes the minimum number required for its performance. It is also held that when it falls below the minimum number, the officer who makes the search has a duty to explain the reason for not Crl. Appeal No. 2362 of 2008 : 8 : adhering to the minimum requirement. But in the present case there is no explanation from the side of the of the PW1 as to why they did not obtain the service of two witnesses as required under Section 36 of the Abkari Act. In this juncture it is relevant to note that only one witness cited as PW2, turned hostile and thus it can be seen that absolutely there is no independent evidence to prove the seizure and to corroborate the evidence of PW1 and 3. Of course even though independent witnesses cited turned hostile, based upon the evidence of official witness, if their evidence are otherwise acceptable, a conviction can be possible. But when there are some inherent defect in the case of the prosecution, the non compliance of section 36 will go against the prosecution and in favour of the defence. In the present case there is delay of 8 days in producing the contraband article before the court below. It is true that there is an endorsement in Ext.P5 property list at the instance of the court to the effect that articles to be produced on the next day. Simply on the basis of those endorsement I am not in a position to draw the presumption that articles were produced before the Magistrate at his residence when the accused was produced. If actually articles were produced before the Magistrate Crl. Appeal No. 2362 of 2008 : 9 : the endorsement would have been to the effect that return the article for producing before the court. It is also relevant to note that even though there was specific direction to produce the article next day there was no compliance of that direction and the articles were produced only on 13.4.2004 after the delay of eight days. Normally eight days delay may not be material. But in the present case PW3 has admitted that there is no label and seal on the material objects. Neither PW3 nor PW1 stated regarding the safe custody of the material objects and the contraband articles etc. This court in the decision Rajendran V State of Kerala (2007 (1) KLT 971) held that in the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before the court, the chance of tampering with the sample taken and the residue seized could not be ruled out. The discrepancy with respect to contraband articles siezed are also in the above factual background assume importance. According to the prosecution, the accused found in possession of 3 litres of arrack but in Ext.P5 property list, even after drawing the sample the quantity is shown as 3.820 litres. At the time of trial when the can was examined, according to PW3 Crl. Appeal No. 2362 of 2008 : 10 : there is no content at all. Therefore, there is no material or evidence before the court as to what was the actual quantity of the contraband article found in possession of the accused. There is no explanation as to what happened to the contents of M.O.1 contraband. In the absence of proper label and seal it cannot be said that what seized and sample drawn from the alleged contraband liquor seized from the accused, have reached at the hands of the chemical examiner as held by this Court Sasidharan V State of Kerala (2007 (1) KLT 720). In the above decision this Court has held that without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution can not be held to have brought home the offence against the appellant. The prosecution had a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof condition. 9. Thus on appreciation and evaluation of the evidence and materials on record, I am of the view that prosecution Crl. Appeal No. 2362 of 2008 : 11 : evidence is shabby in nature and the defects pointed out will go against the prosecution especially on the particular facts and circumstances involved in this case. Therefore, I am of the view that prosecution has failed to prove its case beyond reasonable doubt by adducing cogent and satisfactory evidence and therefore the accused/appellant is entitled to get benefit of doubt. Consequently conviction imposed upon accused as per the impugned judgment is set aside. In the result appeal is allowed. The conviction and sentence imposed against the accused is set aside and he is acquitted of the charges levelled against him. As the accused is undergoing imprisonment, there will be a direction to release the accused/appellant forthwith if he is not required in any other case. Appeal is allowed. (V.K. MOHANAN, JUDGE) KMD