IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 CRL.A.No. 1661 of 2009(C) ------------------------- SC.256/2006 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA .................... APPELLANT(S): MOHANAN, C.NO.4123, CENTRAL PRISON, TRIVANDRUM. BY ADV. ADEEP ANWAR[STATE BRIEF] RESPONDENT(S): STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.Appeal.No.1661 of 2009 = = = = = = = = = = = = = = Dated this the 30 th day of September, 2009 JUDGMENT The appellant who was the sole accused in S.C.No.256 of 2006 on the file of the III Additional Sessions Court(Ad hoc-I) Thodupuzha, challenges the conviction entered and the sentence passed against him for an offence punishable under Section 8(2) of the Kerala Abkari Act. This appeal has been preferred from the Central Prison, Thiruvananthapuram where the appellant is undergoing the sentence of imprisonment. 2. The case of the prosecution can be summarised as follows:- On 16.6.2002, at about 6 p.m. PW3 the Sub Inspector of Police, Vandanmedu was conducting law and order patrol duty in and around Chellarcoil. When they passed through the Maniyampetty- Chellarcoil Road, the police party Crl.Appeal No.1661 of 2009 2 saw the accused standing in the property of one Prabhakaran situated by the side of the road with a bottle in one hand and a glass tumbler in the other. Getting suspicious, the police party apprehended the accused and questioned him about the liquid contained in the bottle held by him. On smelling and tasting the contents of the bottle, PW1 had a hunch that it was arrack. PW1 took a sample of 180 ml in a bottle carried by him and sealed the same. The accused was arrested and the properties were seized under Ext.P1 mahazar to which PWs.1 and 2 who are the independent witnesses affixed their signatures. The accused has, thereby, committed offences punishable under Section 8(2) and 55(a) of the Kerala Abkari Act. 3. On the appellant pleading not guilty to the charge framed against him by the court below for the Crl.Appeal No.1661 of 2009 3 aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 3 witnesses as P.Ws 1 to 3 and got marked 6 documents as Exts.P1 to P6 and 3 material objects as MOs.1 to 3. 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. Since this was not a case of no evidence, the learned Sessions Judge did not order an acquittal of the accused under Section 232 Cr.P.C The accused did not adduce any defence evidence when called upon to do so. 5. The learned Additional Sessions Judge, after trial, as per judgment dated 30.06.2009 acquitted the appellant of the offence punishable under Section 55(g)of the Act but convicted him of the offence punishable under Section 8(2) Crl.Appeal No.1661 of 2009 4 of the Abkari Act. For the said conviction he was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,00,000/- and on default to pay the fine to suffer rigorous imprisonment for six months. It is the said judgment which is assailed in this appeal. 6. I heard Advocate Adeep Anwar, the learned counsel appearing for the appellant on State Brief as well as the learned public prosecutor. 7. 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. The Point:- 8. PW3 is the detecting Officer. He was the Sub Inspector of Police, Vandanmedu who along with his police party (which consisted of two other policemen) allegedly stumbled upon the accused at about 6 p.m. on 16.6.2002 at a place called Chellurcoil Mettu. According to him, the Crl.Appeal No.1661 of 2009 5 accused was holding in one hand a 750 ml bottle containing about 600 ml of some liquid identified as arrack and a glass tumbler in the other. PW3 claims to have taken a sample of 180 ml in a bottle allegedly carried by him in his jeep. He would say that after taking the sample, the sample bottle as well as the balance quantity of 420 ml of arrack were packed and sealed and seized under Ext.P1 contemporaneous mahazar prepared by him. PW.3 would further depose that he took the accused and the properties together with the seizure documents to the Vandanmedu Police Station from where Ext.P4 report was filed by him. Eventhough PW3 says that he produced the accused before the Magistrate on the next day, he does not mention the date of production of the properties before court. A perusal of the property list available in the court records will show that the properties actually reached the court only on 27.6.2002 for which no explanation has been offered by PW3. PW3 has no case that until the production of the Crl.Appeal No.1661 of 2009 6 properties before the Magistrate on 27.6.2002 they were in his safe custody. Both the independent witnesses to the search and seizure examined as PW1 and 2 turned hostile to the prosecution. Except the self serving testimony of PW1, no other witness was examined by the prosecution. It is significant to note that there were two other policemen in the jeep in which PW3 was allegedly travelling on patrol duty. None of them was examined. 9. PW3 claims to have filed a forwarding note before court on 17.6.2002, that is, on the next day. A perusal of Ext.P5 forwarding note shows that the said forwarding note which is dated 17.6.2002 was actually filed in court only on 26.11.2004 which is more than two years after the seizure. A perusal of Ext.P6 Certificate of Chemical Analysis dated 4.1.2006 issued by the Government Chemical Examiner's Laboratory will show that a sample bottle was received along with a letter dated 2.6.2005 sent by J.F.C.M, Nedumkandam . There is no evidence to show that the Crl.Appeal No.1661 of 2009 7 sample which was allegedly drawn by PW3 from the bottle said to have been held by the accused was the sample which after change of hands reached the hands of Chemical Examiner. The thondi section clerk of the Magistrate's court, who was the custodian of the properties has also not been examined to show that the sample which was eventually despatched to the Chemical Examiner, nearly after two years of its production, was the very same sample which was drawn from the bottle of arrack allegedly held by the accused and which was produced before the court 11 days after the seizure and which was despatched from the Magistrate's court only on 2.6.2005. The result of chemical analysis as evidenced by Ext.P6 to show that sample contained 32.75% by volume of ethyl alcohol can be relevant only if the sample which was subjected to chemical analysis was the very same sample which was drawn from the bottle of arrack allegedly held by the accused on 16.6.2002 . In the absence of any acceptable link evidence Crl.Appeal No.1661 of 2009 8 to prove the same, the accused cannot be convicted of the offence punishable under Section 8(2) of the Abkari Act. (See State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314), Sasidharan v. State of Kerala (2007(1) KLT 720) and Valsala v. State of Kerala ( 1993(2) KLT 550 SC). Such being the position, the conviction entered and the sentence passed by the court below overlooking the above vital aspects cannot, therefore, be sustained and are accordingly dislodged. The appellant is found not guilty of the offence punishable under Section 8(2) of the Abkari Act and is accordingly acquitted thereunder. He shall be set at liberty forthwith. In the result, this appeal is allowed as above. The appellant shall be released from prison forthwith, unless his continued detention is found necessary in connection with any other case against him. Dated this the 30th day of September, 2009. V. RAMKUMAR, JUDGE sj Crl.Appeal No.1661 of 2009 9 Gist of the Judgment The appellant is found not guilty of the offence punishable under Section 8(2) of the Kerala Abkari Act and is acquitted thereunder. He shall be set at liberty. He shall be released from prison forthwith, unless his continued detention is found necessary in connection with any other case against him. In the result this Criminal Appeal is allowed as above. Dated this the 30th day of September, 2009. V. RAMKUMAR, JUDGE sj