IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH APRIL,2009 / 17TH CHAITHRA,1931 CRL.A.No. 483 of 2002 (A) (SC.168/2001 of IIIrd ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT NO.I, THRISSUR) .................... APPELLANT/SOLE ACCUSED: ------------------------------------------ BALAN, S/O. THUPRAN, CHERIYAVEETTIL, KATTAKAMPAL VILLAGE, CHIRAYNKAD DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU ADV. SRI.P.M.RAFIQ RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMED. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 483 of 2002 --------------------------------------------- Dated this the 7th day of April, 2009 J U D G M E N T By judgment dated 12.6.2002 in S.C.No.168 of 2001, the court of the IIIrd Additional Sessions Judge (ADHOC), Fast Track Court No.I, Thrissur convicted and sentenced the sole accused who is the appellant herein under Section 55(a),(b) and (g) of the Abkari Act. He challenges his conviction and sentence. 2. The prosecution case is that on 2.5.1998 at 1 a.m., the accused was found manufacturing illicit arrack at the kitchen of his house bearing door No.II/436 of Kattakambal Panchayat and he was found in possession of equipments for distilling illicit arrack and he was also found in possession of arrack and thereby committed the offence punishable under Sections 55(a),(b) and (g) of the Abkari Act. On the basis of the said allegation, Crime No.217 of 1998 was registered in the Kunnamkulam Police Station and investigation was undertaken and finally, the charge was laid in the Judicial First Class Magistrate Court, Kunnamkulam whereupon cognizance was taken and C.P.No.27 of 1999 was instituted. CRL.A. NO.483 OF 2002 :-2-: By order dated 30.10.2000, the learned Magistrate committed the case to the Sessions Court wherein the same was received as S.C.No.168 of 2001 and the case was made over to the court of Principal Assistant Sessions Court, Thrissur for disposal. But, subsequently, the case was transferred to the present court for disposal. 3. When the accused appeared, a formal charge was framed under Section 55(a),(b) and (g) of the Abkari Act, after hearing both the prosecution as well as the defence and when the charge was read over and explained to the accused, he denied the same and pleaded not guilty. The incriminating circumstances, which emerged during the prosecution evidence, when put to the accused under Section 313 of the Cr.P.C., he denied the same. According to the accused, he was implicated in the case due to political animosity. No evidence either oral or documentary was adduced from the side of the defence. From the side of the prosecution, PWs.1 to 8 were examined and Exts.P1 to P6 documents were marked. Besides that MOs.1 to 3 were also produced and identified as material objects. On the basis of the rival pleadings and materials on record, the court below considered five points for its determination and finally CRL.A. NO.483 OF 2002 :-3-: found that the accused is guilty of the charges levelled against him. Accordingly, the accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh, and in default, to undergo rigorous imprisonment for six months for the offence under Section 55(a) of the Abkari Act. Similar sentence was awarded against the accused under Section 55(b) and (g) also. The sentences were ordered to run concurrently. Set off is allowed under Section 428 of Cr.P.C. It is the above order of finding of guilt, conviction and sentence challenged in this appeal. 4. I have heard Sri.Vijayabhanu, learned counsel for the appellant and also Sri.Puzhakkara Muhammed, learned Public Prosecutor. 5. According to the prosecution case, the crime was detected by PW7 in pursuance of the search conducted by him on receiving the reliable information at 1 a.m. on 2.5.1998. According to PW7, he proceeded to the place of occurrence on the basis of the said information accompanied by PW1 and other Police constables. According to PW7, when he reached the house, he found the accused manufacturing illicit arrack in his kitchen. He noticed a large copper vessel and a mud pot above CRL.A. NO.483 OF 2002 :-4-: the same with a rubber tube. According to PW7, he had also seen a bottle containing 650 mls. of arrack. According to PW7, he arrested the accused. The further case of the prosecution is that PW1 inspected the house in the presence of independent witnesses. PW7 prepared Ext.P3 search list. According to the prosecution, PW7 prepared samples of 150 ml. arrack in 750 ml. capacity bottle and he prepared three samples of 150 ml each. Through PW7, Ext.P3 search list and Ext.P4 F.I.R. were marked. PW1 has also identified Mos.1 to 3 material objects. Ext.P5 is the property list. PW7, during cross-examination, has admitted and deposed that at the time of inspection, wife of the accused and another one or two persons were present. PW1, the A.S.I. who accompanied PW7 at the time of search and seizure deposed in terms of PW7. The evidence of Pws.5 and 6 are not helpful for the prosecution as they have deposed against the prosecution though they have admitted their signature in Ext.P3 search list. PW2 is another witness who attested Ext.P1 scene mahazar prepared by PW7. PW3 is the Village Officer through whom Ext.P2 possession certificate was proved. As per Ext.P2, the building and the property in which the building situated are belonging to the mother of the accused and five others. PW8 is CRL.A. NO.483 OF 2002 :-5-: the Circle Inspector of Police who filed the charge before the court below on completion of the investigation. Ext.P6 is the report of the Chemical Examiner. It is on the basis of the above materials and findings, the trial court convicted and sentenced the appellant/accused. 6. The learned counsel for the appellant submits that the prosecution has miserably failed to establish its case beyond shadow of doubt. It is pointed out that the prosecution has failed in proving that the building in question from where the contraband articles were seized exclusively belong to the accused. It is also pointed out that even according to PW7, at the time of the alleged seizure, besides the wife of the accused, the presence of two more persons was noted by him. Those persons were not made either as accused or witnesses. It is also the case of the counsel that no seizure mahazar was prepared by the Police. It is also pointed out by the learned counsel that no forwarding note was prepared by the investigating agency and absolutely there is no material as to how Ext.P6 chemical analysis report was obtained. It is also the case of the learned counsel that there is no proper sampling. The signatures of the accused, the witnesses or the detecting officer were not obtained at the time of drawing the CRL.A. NO.483 OF 2002 :-6-: samples. According to the learned counsel, there is a delay of two days in reaching the contraband article in the court and there is no explanation for such delay and also there is no explanation with regard to the safe custody of the contraband article including the sample. Therefore, according to the learned counsel, the impugned judgment is liable to be set aside. 7. On the other hand, the learned Public Prosecutor, supporting the finding of the court below, submits that the search and seizure was effected on the basis of the information received by PW7 and the contraband articles were seized in the presence of the independent witnesses. According to the learned Public Prosecutor, the delay is only for two days which creates no prejudice against the accused, especially in the light of the fact that the seizure was effected at 1 a.m on 2.5.1998 and practically, at the most, there will be only one day's delay which is negligible. According to the learned Public Prosecutor, after analysing the samples, the lab authorities issued Ext.P6 certificate which would show that the samples contained ethyl alcohol at the rate of 5.12% by volume and therefore, the learned Public Prosecutor submits that no interference is called for. 8. I have carefully considered the arguments advanced CRL.A. NO.483 OF 2002 :-7-: by the learned counsel for the appellant as well as the learned Public Prosecutor. 9. The specific allegation of the prosecution is that the accused was found in possession of equipments for illicit distillation of arrack and he was also found in possession of arrack and thereby, he committed the said offence. Regarding the search and seizure, the only available evidence is that of the official witnesses. The independent witnesses namely, Pws.5 and 6, who are cited and examined to prove the seizure, turned hostile and they did not support the prosecution case. Therefore, in the absence of the independent evidence, it is incumbent upon the prosecution to prove the case by adducing cogent and convincing evidence. There is no rule that the evidence of official witnesses cannot be relied and acted upon unless the same are corroborated from independent sources. The evidence of official witnesses can be easily acted upon provided their evidences are free from doubts, infirmities and contradictions. Thus, we have to examine the prosecution materials and evidences in the above factual background. PW7 is the officer who detected the crime. According to him, on getting the information, he proceeded to the house of the accused and CRL.A. NO.483 OF 2002 :-8-: conducted a search and seized the contraband article as per Ext.P3 search list and he had prepared Ext.P1 scene mahazar. Admittedly, there is no seizure mahazar for the seizure of the equipments and the contraband article. Though PW7 deposed that he had drawn sample and sealed the same, there is no supporting material. Ext.P3 search list does not disclose as to how the samples were drawn. Regarding the sealing of the sample bottle and its packaging, there is no evidence. Nothing is stated in Ext.P3 regarding the details of the steps taken by PW7 towards the drawing of samples. In this juncture, the submission of learned for the appellant regarding the sampling becomes relevant. No labels were pasted on the sample bottles or other contraband article which contained the signature of the accused, witnesses and the detecting officer. The above lapse is aggravated due to the subsequent development. Absolutely, there is no evidence as to where the contraband articles were kept and who was the custodian of the same. Admittedly, as per Ext.P5 property list, the contraband article and the samples were reached in the court only on 4.5.1998. Thus, from 1 a.m. on 2.5.1998 till 4.5.1998, the contraband articles and samples were in the hands of somebody and therefore, it cannot be ruled out CRL.A. NO.483 OF 2002 :-9-: the tampering of such evidence and materials. This Court, in the decision reported in Sasidharan v. State of Kerala [2007(1) KLT 720], has held that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached in the hands of the Chemical Examiner in a fool proof condition. On application of the above decision in the present case, it can be seen that the prosecution has miserably failed to adduce link evidence of actual sampling by drawing the same 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. In the present case, there is no material as to when the prosecution requested the court to send the samples for chemical analysis. There is no document, such as forwarding note, produced before this Court. Therefore, the alleged seizure and drawing of sample are not proved beyond shadow of doubt. As stated earlier, the contraband articles were produced before the court only on 4.5.1998 and there is no explanation as to how the contraband article and samples were kept in safe custody and who was the custodian of the same. In the absence of such explanation, it cannot be ruled out that the samples were tampered for CRL.A. NO.483 OF 2002 :-10-: canvassing the conviction against the accused. 10. In this juncture, it is also relevant to note that even if the evidence of PW7 is admitted as such, it can be seen that besides the accused, certain other persons were also found in the house of the accused and that too at 1 a.m. on 2.5.1998. No explanation is forthcoming from the prosecution as to the identity of those persons and also the explanation about their presence in the house. Admittedly, the house is not exclusively belonging to the accused. As per Ext.P2 possession certificate, the same is belonging to the mother of the accused and her other children including the accused. Learned counsel also pointed out that there is no evidence to show that the accused was residing in the said house during the relevant time. If that be so, to implicate the accused in the present crime, the only evidence available is that of the interested version of PW7 and PW1. In the absence of satisfactory explanation regarding the question mooted earlier, especially regarding the presence of other persons, the version of PW7 and PW1 cannot be accepted. Thus, it can be seen that there are several defects and lapses on the part of the prosecution and such lapse and defect which is already discussed and indicated above would show that the prosecution CRL.A. NO.483 OF 2002 :-11-: has miserably failed to establish its case against the accused beyond reasonable doubt and consequently, the benefit of doubt certainly will go to the accused and therefore, the finding of the court below regarding the guilt of the accused and consequent conviction and sentence are liable to be set aside. Hence, the finding and order of conviction of the court below against the accused is set aside. In the result, this appeal is allowed setting aside the judgment dated 12.6.2002 in S.C.No.168 of 2001 of the court of IIIrd Additional Sessions Judge (Adhoc), Fast Track Court-I, Thrissur and the accused is acquitted of all the charges levelled against him and he is set at liberty. V.K.Mohanan, Judge MBS/ CRL.A. NO.483 OF 2002 :-12-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO. 483 OF 2002 ------------------------------------------- J U D G M E N T DATED: 7-4-2009 CRL.A. NO.483 OF 2002 :-13-: