IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Crl.Rev.Pet.No. 35 of 2002() ---------------------------- {CR.A.NO.184/1999 OF THE SESSIONS COURT, THRISSUR IN C.C.NO.80/1998 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY} .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED: ---------------------------------------------------------------------------- SAROJINI, W/O. MOHANAN, KANJIRACODE VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU & SRI.P.M.RAFIQ RESPONDENT(S): /RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.R.P.No.35 of 2002 ------------------------- Dated this the 19th day of February, 2009. O R D E R The accused, in C.C.No.80/98 on the file of the Judicial Magistrate of the First Class, Wadakkancherry, is the petitioner in this Criminal Revision Petition. 2. The petitioner was prosecuted for the offence punishable under Section 55(a) of the Abkari Act (for short 'the Act'}. She was found guilty, convicted thereunder and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.25,000/- with a default sentence. The conviction was affirmed by the lower appellate court, but the sentence was modified wherein the substantive sentence of imprisonment was reduced from one year to six months. Challenging the conviction and sentence, the accused has come up in revision. 3. The case of the prosecution is that a patrol party, consisting of PW.1 Excise Preventive Officer, was conducting petrol duty on 10.2.1997 at about 5 PM. When the patrol party reached the pathway situated on the southern side of the house of the accused in Kanjiramcode CRL.R.P.No.35 of 2002 :: 2 :: Desom, the accused was seen coming from the opposite side holding a Can. On suspicion, the accused was stopped. On conducting inspection of the jerry Can, 3 litres of arrack was found in it. The plastic can was having a capacity of 5 litres. The accused was arrested and a sample was taken in a bottle of 180 ml. The sample bottle and the plastic Can were sealed separately and Ext.P1 mahazar was drawn. The crime and occurrence report, Ext.P2) was registered by the Excise Inspector. The sample was sent for chemical analysis and Ext.P3report was obtained. PW.1 identified the plastic Can as M.O.1. 4. PW.2 is stated to be the mahazar witness. He admitted his signature in Ext.P1, though otherwise he did not support the prosecution regarding the manner in which he came to subscribe his signature in Ext.P1. The suggestion made to Pws.1 and 2 was that apparently the address of the accused was available with the excise party and that therefore, the accused was falsely implicated. 5. The trial court convicted and sentenced the accused as aforementioned. As stated earlier, the lower appellate court confirmed the conviction and sentence. CRL.R.P.No.35 of 2002 :: 3 :: 6. Learned counsel for the petitioner submitted that the evidence adduced by the prosecution is inadequate to prove the charge against the accused beyond reasonable doubt. It is was further submitted that in the matter of search and seizure effected from the accused, there is contravention of Section 36 of the Abkari Act. It is contended that the search was not witnessed by two independent witnesses and it is vitiated by the proviso to Section 36 of the Act. 7. It was further contended that the evidence on record seems to suggest that the excise officials were acquainted with the address of the accused and it seems that the accused was roped in without a detection and seizure having been effected in the manner suggested by the prosecution. It is further contended that the suggestion made to PW.1 was that it is only because the address of the accused was known to the excise officials, she was falsely implicated. 8. I have gone through the evidence, both oral and documentary. Before considering the plea regarding contravention of Section 36 of the Act, it will be relevant to CRL.R.P.No.35 of 2002 :: 4 :: note certain aspects emanating from the testimony of Pws.1 and 2. 9. PW.1, the Preventive Officer was one among the patrol party. He deposed that the patrol party had to stop the jeep in which they came about 3/4th kilometer away because the lane through which they came was narrow. According to PW.1, while patrol party was standing by the side of the southern side of the residence of the accused, they saw the accused coming along the lane with a Jerry Can. It was in suspicious circumstances and they inspected the Can, which was found to be containing illicit arrack. Thereafter Ext.P1 mahazar was drawn up and though apart from PW.1 there were two independent witnesses, the mahazar shows the signature of PW.2 alone as an independent witness. Further, though the patrol party is said to have consisted of 5 persons, none of the other official witnesses were examined. What I found to be noteworthy in Ext.P1 is the total absence of a recital therein that after the seizure of M.O.1 and also after a portion of the liquor was transferred to the sample bottle with 180 ml that though they were separately sealed, thereafter both the accused CRL.R.P.No.35 of 2002 :: 5 :: and the witnesses were asked to affix their signatures on the seal. Normally, a seal is affixed on the material object recovered from the site and the bottle in which the sample is collected. The accused is required to affix his/her signature on the seal so affixed. This is a practice which is seen to be followed, almost invariably, in all Abkari cases. But Ext.P1 does not contain any recital that the accused was asked to put her signature on such seal. The most reliable method of ensuring authenticity of the sample and to obviate an argument at a later point of time that there is nothing to connect the material object with the accused as such. PW.1 ought to have obtained the signature of the accused on the seal of the material object, which should naturally tally with the seal and the signature on the sample bottle. Though the sample bottle was found to be sealed and the sample that was forwarded to the chemical analyst as pointed out by the Public Prosecutor with reference to Ext.P3 analysis report, this does not ensure the authenticity of the search, the presence of the accused at the scene of occurrence and her being in possession of the contraband, as alleged by the prosecution, in the absence of the signature of the accused CRL.R.P.No.35 of 2002 :: 6 :: on the seal affixed on the material object. I am constrained to observe that this is a crucial lapse on the part of the prosecution. 10. I take note of this lapse in the light of the contention taken up by the Learned counsel for the accused, with reference to Section 36 of the Act, which reads as follows: “36. Searches how to be made:- All searches under the provisions of this Act shall be made in accordance with the provisions of the (Code of Criminal Procedure, 1973 (Central Act 2 of 1974) [Provided that the persons called upon to attend and witness such searches shall include at least two persons neither of whom is an Abkari, Police or Village Officer.]” 11. The proviso thereto obviously, therefore, requires two independent witnesses for every search which is conducted under the provisions of the Act in question. Learned Public Prosecutor would submit that the instant is a case where the accused was found in possession of a jerry Can, having a capacity of 3 litres, that she was arrested on the spot and that this was not a case of search of the CRL.R.P.No.35 of 2002 :: 7 :: premises of the accused and consequently, Section 36 of the Act would have no application. I find it difficult to accept this submission, inasmuch as Section 36 of the Act refers to all searches conducted under the Act as such. It does not purport to draw a distinction between search of a premises and search of a person. It was, therefore, necessary for the prosecution to comply with Section 36 of the Act in the matter of searching the person of the accused as well. 12. Indisputably, only one independent witness has signed Ext.P1 mahazar i.e. PW.2. The reading of the testimony of PW.1 also does not lead to a conclusion that an attempt was made by PW.1 to secure the presence of a second independent witness. Nor does PW.1 come out with an explanation as to why they were unable to secure the presence of two independent witnesses while the search was being conducted on the person of the accused. No doubt, as pointed out by the learned Public Prosecutor an infraction of Section 36 of the Act does not vitiate the trial of the accused, as has been held by this court in Madhavan v. Excise Inspector {2000(1) KLT 311}. But, that does not relieve the prosecution from at least offering an explanation CRL.R.P.No.35 of 2002 :: 8 :: as to why they were not able to secure the presence of two independent witnesses for the search in question. It, at least, obliges the prosecution to affirm whether they made an attempt to secure the presence of two independent witnesses as is contemplated by Section 36 of the Act. Even that limited option does not seem to have been attempted to by the prosecution. Though an infraction of Section 36 of the Act does not result, ipso facto, in vitiating the trial as such, it would definitely require the court to consider the evidence offered by the prosecution with a little more circumspection and find out whether the prosecution has succeeded in offering an explanation for not complying with Section 36 of the Act, while conducting the search. 13. I also take note of the evidence of PW.2, the mahazar witness. He is a coolie and he affirmed his signature in Ext.P1 mahazar. But, in cross-examination, he went on to say that he did not see either the accused or M.O.1 when he subscribed his signature in Ext.P1. He also denies the suggestion that he was asked to smell and taste the sample which was taken from M.O.1. This does not support the version given by PW.1 to the contra. He further CRL.R.P.No.35 of 2002 :: 9 :: deposed that he signed the mahazar in the Panchayat road at 6 PM and that only the Excise Officials were present when he subscribed his signature in the mahazar. He further stated that the contents of Ext.P1 were not read over to him. The court below went on to hold that PW.2 was not rendering the truth. I am of the view that the absence of any attempt on the part of the prosecution to conduct a re- examination of PW.2 cannot be brushed aside as such. 14. In these circumstances, I am of the view that the evidence adduced by the prosecution cannot be accepted as such. The failure on the part of the prosecution to obtain the signature of the accused or the witness on the seal affixed on M.O.1, as discernible from the testimony of PW.1 and the failure of the prosecution to secure the presence of two independent witnesses at the search in terms of Section 36 of the Act, in my view, would render the case of the prosecution unacceptable. It would be unsafe to find the accused guilty of the offence under Section 55(a) of the Act and convict her, on such shaky evidence. For all these reasons, Criminal Revision Petition is allowed. The conviction and sentence of the accused under CRL.R.P.No.35 of 2002 :: 10 :: Section 55(a) of the Abkari Act is set aside. She is acquitted of the charge. The bail bond executed by her shall stand cancelled. If the accused has remitted any fine, the same shall be refunded to her within a period of three months from the date of receipt of a copy of this order. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge