IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 CRL.A.No. 1549 of 2003() ------------------------ SC.541/2001 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA .................... APPELLANT(S): ACCUSED: ---------------------- PRASAD @ KRISHNANKUTTY, S/O. DIVAKARAN, PRAKASH BHAVANAM, VALLIKUNNAM MURI, VALLIKUNNAM VILLAGE. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE EXCISE RANGE INSPECTOR, MAVELIKKARA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.A. NO. 1549 of 2003 C * * * * * * * * * * * * * * * * * * Dated: 13-10-2009 JUDGMENT In this Appeal filed by the sole accused in S.C. 541/2001 on the file of the Addl. Sessions court, (Fast Track Adhoc – II), Alappuzha , he challenges the conviction entered and the sentence passed against him by the said Court for an offence punishable under Sec. 55 (a) of the Abkari Act . 2. The case of the prosecution can be summarised as follows:- On 22-1-1998 at about 12.30 p.m. while P.W.1 (Nelson) the Excise Inspector of Mavelikkara Range was proceeding on patrol duty in the company of P.W. 2 (Saji) an Excise Preventive Officer, they came across the accused in front of N & C Bricks factory on the Vettikkode road proceeding from Padayanivettath in Vallikkunnam Village. The accused was carrying MO1 black jerry can of 10 litre capacity containing spirit . The accused was arrested. Two samples each of 375 ml. were drawn fron the contents of the jerry can and given the Crl.A. NO. 1549 of 2003 C -:2:- markings A and B. The jerry can containing the balance quantity of 9.250 litres of spirit and the two sample bottles were all sealed and seized under Ext.P1 mahazar to which P.Ws 3 and 4 (Gopalakrishnan Karanavar and Podiyan) affixed their signatures. During the course of investigation, PW5 (Minoo Varghese) the Excise Inspector, Mavelikkara who succeeded P.W.1 recorded the statements of witnesses and after completion of investigation charge sheeted the appellant. 3. On the appellant pleading not guilty to the charge framed against him by the court below for the offence punishable under Sec. 55 (a) of the Abkari Act, the prosecution was permitted to adduce evidence in support its case. 4. The prosecution altogether examined 5 witnesses as P.Ws 1 to 5 of whom P.Ws 3 and 4 who are the independent witnesses turned hostile to the prosecution and got marked three documents as Exts.P1 to P3 and one material object as MO1. 5. After the close of the prosecution evidence, the appellant/accused was questioned under Sec. 313 (1) (b) Cr.P.C. Crl.A. NO. 1549 of 2003 C -:3:- with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He had the following to submit before Court:- “On the date of occurrence he was working in the High Tech Engineering Workshop. While so, the Excise Officials came in the jeep of one Abkari Contractor and he was arrested. He is innocent”. The appellant did not adduce any evidence when called upon to enter on his defence. 5. The learned Addl.Sessions Judge , after trial, as per judgment dated 20-8-2003 found the appellant guilty of the offence punishable under Sec. 55 (a) of the Abkari Act, and sentenced him to 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 Crl.A. NO. 1549 of 2003 C -:4:- which is assailed in this appeal. 6. I heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 7. After a careful re-appraisal of the oral and documentary evidence in the said case, I am not convinced that the prosecution has succeeded in establishing the case against the appellant beyond reasonable doubt. P.Ws 1 and 2 being the detecting Officer and the Preventive Officer who accompanied him will naturally give evidence only in support of their case. P.Ws 3 and 4 who are the independent witnesses turned hostile to the prosecution. They categorically denied their signatures in Ext.P1 mahazar allegedly prepared by P.W.1 from the spot of detection itself. The testimony of P.W. 3 is as follows:- “His signature was taken on a white paper. Signature purportedly shown in Ext.P1 mahazar is not his signature. He is residing to the east of the N & C Bricks factory. There is a serpent's grove to the south western portion of his property . MO1 can was actually taken from the said point. One Suresh who is the driver of an abkari contractor by name Murali who owns a jeep bearing KL-4E 4784 had Crl.A. NO. 1549 of 2003 C -:5:- accompanied the excise party. While taking MO1 jerry can from the serpant's grove the accused was not present. The officials after taking samples got the signature of himself and others on a white paper and they went southwards. He also accompanied them along with several other people. The jeep was stopped in front of High Tech workshop at Padayanivattom junction. He followed the excise party on his bicycle . Driver Suresh caught hold of the accused from the workshop and handed over him to the Excise Officials” . P.W.4 the other attester to Ext.P4 seizure mahazar also followed suit. He also denied his signature in Ext.P1 mahazar and testified in terms of the deposition of P.W.3. According to P.Ws 1 and 2 , 2 samples each of 375 ml. drawn from the bulk quantity in the jerry can and the sample bottles were given the marking A and B. The property list (thondi list) as per which the properties were produced before the J.F.C.M., Kayamkulam was not marked. But the property list which is found in the lower court records shows that a black jerry can having a capacity of 10 litres having 9.250 litres of spirit and a sample Crl.A. NO. 1549 of 2003 C -:6:- bottle having the marking “A”and having a capacity of 375 ml. alone were produced before the Magistrate at Kayamkulam on 22-1-1998. The second sample allegedly drawn by P.W.1 and which was allegedly given the marking “B” was not produced before the Magistrate. The aforesaid thondi list does not carry the seal of the Magistrate's Court. No doubt, there is an endorsement presumably by the court staff that as there is no sufficient space in the thondi room to keep the thondi articles, orders may be passed with regard to item No. 1 namely the 10 litre jerry can. There is also a writing below the aforesaid endorsement for keeping item No. I in the Excise Range Office. But apart from the fact that the said writing also does not contain the seal or signature of the Magistrate, the thondi section clerk who is the custodian of the properties in the Magistrate's Court was also not examined to prove those endorsements. 8. The only three documents produced and marked by the prosecution are Ext. P1 seizure mahazar, Ext.P2 occurrence report and Ext.P3 report of the Chemical analysts. Crl.A. NO. 1549 of 2003 C -:7:- No forwarding note was got marked to indicate a request by the investigating officer to sent the sample to the Chemical Examiner's Laboratory for analysis. P.W.5 who is the Excise Officer who conducted the investigation has no case that he had filed any forwarding note or requisition for sending the samples to the chemical examiner. P.Ws 1 and 2 also do not depose that any request was made to the Magistrate to send the sample bottle for chemical analysis. It is not explained as to what was the reason which prompted the Magistrate to sent sample marked “A” to the Chemical Examiner's Laboratory, Thiruvananthapuram on 30-3-1998 as revealed by Ext.P3 certificate. As already mentioned, out of the two samples the sample bottle on which the marking B was given was not produced before the Court and no explanation has been forthcoming as to what happened to the said sample. No doubt, the result of analysis found in Ext.P3 certificate is to the effect that the sample contained spirit having 76.1 percent by volume of Ethyl Alcohol. But when there is no acceptable evidence to show that it was one of the two samples which was allegedly Crl.A. NO. 1549 of 2003 C -:8:- drawn from the jerry can allegedly held by the accused on 22-1- 1998, that eventually found its way into the hands of the chemical examiner on 31-3-1998, it cannot be held that it was the sample which was subjected to chemical analysis in the chemical Examiner's Laboratory, Thrivuananthapuram is the very same sample. [See in this connection 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)] . 9. Apart from the fact that the case of the accused as probabilised by the testimony of P.Ws 3 and 4 could be true, a reading of the record of examination of the accused under Sec. 313 (1) (b) Cr.P.C. shows that the questions put to the accused were not framed in an easily understandable manner and were lengthy and complicated questions rolling up several distinct matters of evidence in a single question. Such a questioning of the accused during examination under Sec. 313 (1)(b) Cr.P.C. was deprecated by a Division Bench of this Court in State of Kerala v. Aboobacker - 2006 (4) KLD 450 = 2006 (4) KLT Crl.A. NO. 1549 of 2003 C -:9:- SN. 49 Page No. 33 = 2006 (3) KLJ 165. A perusal of the record of examination of the accused shows that altogether four questions alone were put to the accused and each question was not numbered and compound sentences were put to the accused. No question was put to the accused to the effect that the accused along with the properties and the seizure documents were taken to the Excise Range Office and from there to the Court of the Judicial Magistrate of the Fist Class, Kayamkulam. Likewise, except telling him that Ext.P3 is the certificate of analysis after analysing the sample no question was put to him as to whether any forwarding note had been filed in court or that the sample was forwarded to the Chemical Examiner's Laboratory from the J.F.C.M., Kayamkulam. The contents of Ext.P3 certificate was also not put to the accused. It is well settled that each and every incriminating circumstances against the accused should be put to him during the examination under Sec. 313 (1) (b) Cr.P.C. and his attention invited to those circumstances and his explanation elicited on those circumstances. Unless it is done, those circumstances Crl.A. NO. 1549 of 2003 C -:10:- cannot be relied on to enter a conviction against the accused. In Sharad Birdhichand Sarda v. State of Maharashtra – AIR 1984 SC 1622 a three Judges' Bench of the Apex Court has very succinctly laid down the law that circumstances not put to the accused during his examination under Sec. 313 (1) (b) Cr.P.C. cannot be used against him for recording a conviction. The said principle applies in all fours in this case . The defect in the examination of the accused in this case is incapable of correction by this Court since the accused has only suffered prejudice as a result of standing trial in a case in which two of the prosecution witnesses had already given evidence in support of his case. The result of the foregoing discussion is that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. The conviction entered and the sentence passed overlooking the above vital aspects cannot be supported and are accordingly dislodged. The appellant is found not guilty of the offence punishable under Sec. 55 (a) of the Abkari Act and is acquitted thereunder. He shall be set at Crl.A. NO. 1549 of 2003 C -:11:- liberty forthwith. His bail bonds, if any, shall stand cancelled. I, however, do not interfere with the order for disposal of MO1 together with its contents. In the result, this appeal is allowed as above . Dated this the 13th day of October, 2009. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani.