IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 CRL.A.No. 330 of 2004() ------------------------------- SC.1211/2000 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM .................... APPELLANT(S): ACCUSED ------------------------------------- RADHAKRISHNAN, S/O. KOLAPPAN ASARI, T.C.21/1916, PANAYIL VEEDU, NEDUMCAUD WARD, MANACAUD VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.BLAZE K.JOSE RESPONDENT(S)/ COMPLAINANT: ------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING, EXCISE INSPECTOR, THIRUVANANTHAPURAM EXCISE RANGE. BY PUBLIC PROSECUTOR SMT. K.L. LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 330 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of October, 2008. J U D G M E N T Challenging the conviction and sentence passed by the Additional Sessions Judge, (Fast Track Court No - I) Thiruvananthapuram in Sessions Case No.1211/00, 2000, the appellant/accused preferred this appeal. 2. The prosecution case is that on 7.9.1997 at about 8.P.M., the accused was found in possession of 5 litres of arrack in a plastic Can having a capacity of 5 litres, on the western side of the house known as Panayil house bearing T.C. No.21/1916 in Nedumcaud Ward, Manacaud Village for the purpose of sale and thereby committed an offence punishable under Section 55(a) of the Abkari Act. On the basis of the said allegation, Crime No. 154/97 was registered for the said offence. On completion of investigation, a final charge sheet was laid before the Judicial First Class Magistrate Court - II, Thiruvananthapuram, thereupon C.P.No.67 of 2000 was instituted and by an order dated 28.9.2000 in C.P.No. 67/2000, the learned Magistrate committed the case to the Sessions Court, wherein S.C.No.1211/2000 was instituted and made over Crl. Appeal No. 330 of 2004 - 2 - to the Trial Court for disposal. On the appearance of accused in the Trial Court, a formal charge was framed under Section 55(a) of the Abkari Act, which was read over and explained to him, to which he pleaded not guilty which resulted in the further Trial of the case, during which PWs 1 to 3 were examined as prosecution witnesses and marked Exts.P1 to P5 as documentary evidences. M.o.s 1 and 2 were identified. When the accused was questioned under Section 313 of Cr.P.C., he denied all the incriminating circumstances against him and denied the prosecution case. It is the further case of the accused that when he was lying in front of a shop after having taken liquor, the police caught him and handed over to the Excise officials and he was implicated in the present case. Finally, the Court below found that the accused has committed the offence punishable under Section 55(a) of the Abkari Act and accordingly convicted and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and in default of payment of fine to undergo rigorous imprisonment for a further period of six months. The above conviction and sentence are challenged in this appeal. 3. I have heard the learned counsel for the appellant and also the learned Public Prosecutor. Crl. Appeal No. 330 of 2004 - 3 - 4. Learned counsel submitted that the order of conviction and sentence passed by the Court below is liable to be interfered with, since the same is perversive and illegal. According to the learned counsel except the interested version of PWs 1 to 3, there is no independent evidence to corroborate the prosecution evidence. It is also the case of the counsel that Ext.P3, arrest memo would not show that the accused was arrested in connection with the offence under the provisions of the Abkari Act. It is also pointed out that M.O.1 plastic Can produced before the court is a broken Can, which does not contain the signature and label to connect the accused with the alleged seizure. On the basis of the case setup by the accused under Section 313 of the Code of Criminal Procedure., the learned counsel submitted that the accused was not arrested in connection with the alleged crime and he was caught by the police authorities and handed over to the Excise officials and accordingly they registered a false case against the accused. 5. On the other hand the learned Public Prosecutor submitted that the prosecution has established the case by adducing cogent evidence that the contraband article was seized from the physical possession of the accused and that sample was taken from the contraband article and the chemical analysis report would show that what received from the Crl. Appeal No. 330 of 2004 - 4 - accused is illicit arrack. Accordingly the prosecution has established the allegations and no interference is called for. 6. I have carefully considered the contentions advanced by the counsel for the appellant as well as the learned Public Prosecutor and also perused records. PW1 is the officer who detected the crime while he was on patrol duty on 7.9.1999 at about 8 P.M. He has deposed in terms of the prosecution case. According to him, when he reached on the western side of the house of the accused, he saw the accused pouring liquid from the Can, near to a person by sitting on a slab across the drainage, on the western side of the house of the accused and then he seized the Can from the hand of the accused and examined the liquid contained therein by tasting and smelling and thus he found that it was illicit arrack. Accordingly the accused was arrested as per Ext.P3, arrest memo and as per Ext.P1, Scene Mahazar. Contraband article including the Can and also a sum of Rs.616/- found in the pocket of the shirt of the accused were seized. Thereafter they returned to the Range Office, where Ext.P2 Crime and Occurrence Report was prepared and on the same date the accused as well as the articles were produced before the Court below. Thereafter sample was sent for chemical examination and based upon it, Ext.P4, Chemical Analysis Report was obtained. PW2 is Crl. Appeal No. 330 of 2004 - 5 - another Preventive Officer who was along with PW1 at the time of detection of the alleged crime. PW3 is the Excise Inspector, who laid the charge. As stated earlier, DW1 was examined by the defence, who is the Revenue Inspector of the Corporation, Thiruvananthapuram and through him Ext.D1 was proved. The accused himself was examined as DW2 and through him Ext.D2, Ration Card was produced and marked. On the strength of the above materials, it is argued that the prosecution case that the accused was arrested and the contraband article was seized near from the house of the accused is false. On the basis of the material, the accused was not residing in the house bearing No. T.C.21/1916 in Nedumcaud Ward, Manacaud Village. In this connection the defence version regarding his arrest assumes importance. According to him, he was taken into custody by the police when he was laying unconsciously after having consumed liquor and he was handed over to the Excise officials, who in turn registered a false case against him. Even though such a plea was taken, it appears that accused has not established the same. Failure on the part of the defence in proving the case is not a criteria to evaluate prosecution materials and evidence and to find whether the prosecution has established his case beyond reasonable doubt. Crl. Appeal No. 330 of 2004 - 6 - 7. At the outset it is to be noted that according to PW1, no sample was taken from the alleged liquid, claimed to have seized from the possession of the accused. According to PW1, the accused as well as the contraband articles were produced before the concerned Magistrate Court on the next date of the alleged seizure, i.e. on 8.9.1997. No document is marked during the trial pertaining to the request made by the prosecution for sampling and chemical analysis. Though in the impugned judgment the trial court found that the request was made for sending the contraband article for chemical analysis, but the trial court did not refer to any such document. As such there is no evidence on record to show that there was a request for sending the contraband article for chemical analysis, from the side of the prosecution. There is no evidence as to who had drawn the sample and regarding the steps taken by such person towards drawing the sample etc. Learned Public Prosecutor pointed out that since the sample was drawn by that court and was sent it for chemical analysis by the court, a presumption can be drawn that it was done in accordance with law and procedure. In the present case M.O.1 is a decayed Can, which do not have any label or any other contemporary piece of evidence to show that it is the said Can recovered from the possession of the accused. There is no name of the Crl. Appeal No. 330 of 2004 - 7 - accused, no number of the crime and no signature of any of the person like detective officer or the accused or the witnesses etc. In this connection it is relevant to note that report was filed by the prosecution to the effect that MO1 was decayed by passage of them. No details are given such as when the request was made for sampling for chemical test, when was sample drawn and when was the Can returned etc. There is on the basis of such incomplete and imperfect report to court can convict and sentenced on accused and the provisions of Abkari Act. Therefore the details of the drawing of sample assumes much relevance. The Court has to consider as to when the sample was drawn, whether the cap of the Can was properly sealed and in tact. Evidence and materials in this respect are most relevant and materials because of the defect noted with respect to the MO1 etc. If there is ample evidence with respect to that aspect in favour of prosecution even though there is no evidence regarding the sample, drawing of sample and sending the same for chemical analysis by the prosecution it could have been accepted on the basis of oral evidence of PWs. 1 and 2. But when MO1 is a decayed one and there is no satisfactory explanation, in the absence of any evidence regarding those aspects, it cannot be said that sample taken for chemical examination from the contraband article alleged to have Crl. Appeal No. 330 of 2004 - 8 - recovered from the possession of the accused. In this regard the prosecution evidence is also not free from doubt because PWs.1 and 2 have given two different versions. PW1 says that no sample was taken from the contraband article at the time of preparing Ext.P1, Mahzar. But PW2 says that sample was drawn at the time of seizure itself. It is also relevant to note that even PWs. 1 and 2 were claimed to have participated in the alleged detection, PW1 says that while seizure one person ran away from the spot, but PW2 not says anything about it. But regarding the incident the prosecution witnesses deposed differently. Therefore the absence of reliable evidence regarding the sampling, it will go against the prosecution. It is also relevant to note that specific allegation of the prosecution that accused was found in possession of the contraband article near to his own house. By producing Exts.D1 and D2 documents and examining PW1 and examining DW2, the accused had established that he was not residing in the house mentioned by the prosecution. But the prosecution did not adduce any evidence to prove that at the time of incident that the accused was residing in the house bearing No. TC.21/1916, which would show that the prosecution has failed to establish the case as alleged by it. 8. In the light of the above facts and circumstances, I am Crl. Appeal No. 330 of 2004 - 9 - of the view that the prosecution has miserably failed to establish its case beyond reasonable doubt and that the accused is entitled to get the benefit of doubt. Thus, as the prosecution failed to establish the case of the accused beyond doubt, the accused is entitled to as an acquittal. Accordingly, the accused is acquitted of the charges against him. Bail bond executed by him is Cancelled. The learned Counsel for the accused submitted that when bail was granted by this Court as per the order dated 25.5.2004 in Cr.M.P.2346/2004, a condition was imposed to deposit a sum of Rs.15,000/-. At the time of release of the accused on bail if an amount of Rs.15,000/- was deposited the same is ordered to return to the accused/ appellant. The appeal is allowed accordingly. V.K.MOHANAN, JUDGE rhs